Welcome to scotus Cast, a project of the Federalist Society for Law and Public Policy Studies. Our contributors joined us from around the country to bring you expert commentary on US Supreme Court cases as they are argued and the decisions are issued. The Federalist Society takes no position on particular legal or public policy issues. All expressions are those of the speaker. Hello, and welcome to scot Discast. I'm your host, Kyle hammernis On, behalf of the Faculty division of
the Federalist Society. We are here today to discuss Devilier versus Texas, in which the Supreme Court issued a nine to zero decision on April sixteenth, twenty twenty four. It is my honor to introduce our guests today, Professor Ilia Sohman. Professor Soman is a professor of law at George Mason University, antonin Scalia Law School and he is the b Ken Assignment charn Constitutional Studies at the Cato Institute. Professor Soman also filed an amicus brief in this case on behalf
of the Cato Institute and himself. And with that, I like to turn things over to our guest to discuss the overview of the case and the court's decision. My name is Ilia Soman. I'm a WAW professor, and I also filed an amekus brief in this case on behalf of myself and the Cato Institute supporting the property owner. And what I'm gonna do is gonna briefly explain what the case is about and what the court decided in a nin toz decision
that was relatively narrow. So this case started because Richard DeVillier, who's a farmer in Texas, plus a number of other property owners, their land was flooded by the state as part of a public works project, and they sued, arguing that they had undergone a taking which required just compensation under the taking's
closet of Fifth Amendment. And there is in fact a good deal of precedent going back all the way to the nineteenth century, which says that if the government deliberately damages or destroys your property, that qualifies as a taking, including if they fled your property as in this instance. Originally, DeVillier and the others filed their cases in state court. However, the state of Texas removed the case to federal court. Under a provision which allows removal in a situation
where a federal district court would have had original jurisdiction quote unquote. But once they got to federal court, the state then tried to pull a cash twenty two. They said, Aha, now that we've gotten it into federal court, we can dismiss it on the grounds that the takings cluse is not self
executing. That is, that you can't file a case against the state government for violating the takings clause in West Congress or the state government has passed legislation empowering you to do so, and the district court ruled against the state, I think correctly on the grounds that the takings clause is in fact self executing, that you can in fact sue a state for violating your rights and takings clause even if there's not specific authorizing legislation. The Fifth Circuit then, in
a very cursory opinion that's wittering only just a few lines long. Uh, it dismissed the case. You know, on the grounds that you know that there's not a you know that that there's not a basis for a watsuit in a federal court at least complicitly endorsing the idea that the clause is not self executing. Uh. And then the case got to the Supreme Court, thanks in parts the efforts of the Institute for Justice, a public interest law firm
which supports property rights, and took up the case. And when the Supreme Court granted sert on the case, they said, this is going to be about whether the takings clause is in fact self executing or not. Uh, and that that would be the uh, you know, the the issue that they were going to address. And I think everybody thought, including myself, that they were going to ultimately addressed that issue in one way or another.
And I think had they addressed it, they should have said that this is in fact self executing, because the text of the Fifth Amendment specifically is not does not require any kind of additional legislation. And moreover, even if you think the payment of damage's remedies in general requires a federal statute to authorize, here, the remedy of just compensation is specifically written into the Constitution. So
there's no doubt that this is a constitutional requirement. And it just wouldn't make any sense for either the state or the federal government to effect be able to nullify this simply because there isn't additional legislation, you know, to authorizing this, and you know, there's just no good reason to do that, and no evidence that the original meaning you know, requires this, nor is there any precedent requiring it. So certainly, and then to make it even more
egregious, tax is here. Essentially we took the case out of state court and in the federal court and then tried to dismiss So under this approach, it's not just that there wouldn't be a remedy in federal court, there wouldn't be a remedy in state court either, because anytime anybody filed a taking's claim against Texas or another state that tried to pull the same trick in state court, the Texas could just remove it to federal court and then have a catch
twenty two, where the very fact that they remove it to a federal court enables them to get rid of the case. The Supreme Court, in the twenty nineteen case of Nick versus the Township of Scott had specifically warned ruled against the idea of a catch twenty two. These are the words in a court not my whords where if you bring a case into state court under some previous decisions, then that may prevent you from ever being able to bring the case
in a federal court and undertakings cause. And here it's even worse than that, because under this ruling by the fifth you couldn't even bring the case in state court because once he brought it in state court, Texas could remove it or another state could remove it and then get it dismissed in the federal court. So I expect and others expected the Supreme Court would ruin those issues.
But what actually happened is that in the oral argument, the Texas Solicitor General representing the state of Texas, conceded that there actually is a state law cause of action not only under the state takings clause in the Texas Constitution, but also under the federal takings Clause. So the Supreme Court, in an opinion by Justice Clarence Thomas, they said, we don't even need to decide the issue of whether the takings cause is self execute or not. We can save
that for another day because there is this Texas cause of action. So this case could just be brought under state court now or under the state law cause of action. The Supreme Court was not very clear on the issue of exactly what would then happen to the case, whether it would then be returned to the federal district court to continue there, or whether it would then have to be refiled in Texas state court, and if so, whether Texas could then
try to remove it again. However, in discussing the issue and looking at it, it looks like the expectation is that this will return the federal court, and because the Supreme Court vacated the Fifth Circuit decision dismissing the case, it can now precede in federal court. The substantive issue that it will proceed about will be the federal takings clause as well as the Texas state takings clause.
But presumably Texas will not be able to again dismiss the case on the grounds that there is no cause of action, because technically they will proceed under a state cause of action for a federal right. Though I wish the Court had been more clear on this, They did not decide the important issue of self execution, so that might arise again in the future if there is a
state that this Ottawa a state cause of action. Or does not concede that they do, as happened in this case in the Supreme Court oral argument because of the sort of narrow nature of the Supreme Court decision and some ambiguities there. Ironically, both sides have tried to claim victory in the aftermath. But I think it is very obvious that on the issue that was actually decided, namely whether this particular case will get to proceed, I think Texas pretty obviously
lost. That is what tech. If you look at texas As briefs, what they were trying to do is get the Fifth Circuit decision affirmed, thereby affirming the dismissal of the case against the state, and that decision was vacated. You don't have to take my word for that. You can look right in the Supreme Court opinion where at the end they say the Court of Appeal decision is vacated. That reinstates the District Court decision, allowing the case to
go forward. It technically it may even reinstate the district court decisions. It says that this is sof executing, though obviously that decision, like other District court decisions, is not binding precedent. So this case can proceed, and at least for a moment, it seems like Texas will not be able to get it dismissed on this procedural ground, though perhaps they can win it later on a substantive ground, or perhaps they can somehow find a way to bring
back sort of these procedural issues somehow. I'm not completely sure about that. It seems unlikely. But the court, the Supreme Court's decision is sufficiently vague that it's not completely clear on this. So when Texas Attorney General Ken Paxton claims that he actually won the case, it seemed to be very obvious that he did not. It might be very reasonable, more reasonable for him to say, well, we didn't lose as badly as we could have lost.
If you issue a press release to that effect, that would have been accurate, because the court could have ruled on the issue of sex self execution and given them a more decisive loss on that question. They instead said, we're not ruling on that. On the other hand, they are letting the case proceed. Indeed, the whole reason why they didn't rule on the issue of self execution is that they decided that the case can proceed anyway, even aside
from that issue. So you know, when you have a decision where it says the case that against you can proceed, even though your whole argument was that the Supreme Court should affirm the will re court decision which says that it can't proceed, that looks like a lost to me, even though obviously it's
not quite as bad a loss as it could have been. So it's common for politicians to say deceptive statements, but this goes beyond even the usual practices in that I can't think of another case where a state attorney general actually lost in the Supreme Court and he instead tries to claim, you know, that he won, which he obviously didn't. But the issue of self execution remains potentially for the future, and there's a little bit of ambiguity about how this
case will proceed. Do I think the most likely scenario is that it will just continue in federal district court. That court will make a ruin of some sort on the merits. It may be appeal to the Fifth Circuit. Maybe the Fifth Circuit could again try to dismiss on jurisdictional grounds at that point,
but it will be difficult for them to do so. So I think the ultimate implication, at least for the moment, we have avoided a situation where a state could create a kind of cash twenty two under which they take the position that it's impossible to suit them in federal court for a taking's viuation, but if you suit them in state court, they can remove the case to
federal court and then get it dismissed. Hopefully, the recent Supreme Court decision will put an end to those kinds of shenanigans, though it's not completely clear as to what the implications are is unfortunately didn't say so in so many words, but I think at the very least there's a suggestion here that they will not allow that, especially if you combine that with the previous Nick case, which discusses said that it's an impermissible catch twenty two even to have a situation
where going to state court permanently bars you from a federal court and you're required to go to state court first, as was true under the Williamson County case in nineteen eighty five, which the Nick Case overruled. So I think this is a very narrow decision, but one that avoids what would have been a very bad decision had it gone the other way. But it does leave the
issue of self execution for a possible future Supreme Court decision. I think when and if the Supreme Court reaches that issue, which should rule that the takings clause is self executing. Indeed, I think almost all constitutional rights are presumptively self executing, but in the case of the takings clause, it's even more clear than for many others. And I'll stop there, but I'll be happy to answer any questions that you might have. Well, thank you so much,
professor for that overview and the discussion about the decision. As a person who filed an amachust brief, do you think that the Court missed an opportunity in discussing the self execution. Well, our brief was partly about catch twenty two and partly about self execution. More generally, I think the Court could
have simply said, we resolved this case on two different grounds. A, there is self execution, and B in this case, even if there were not, you know, there is this alternative wib proceeding in there ours. There is certainly the President for the Supreme Court deciding cases on two different grounds simultaneously. That's not you know that's not forbidden, but they also certainly had a discretion to do what they did, which is resolve it the immediate issue
on this very narrow ground. Though even that, I would have preferred that they be a bit clear on exactly what they're doing. But it does seem to me in document participants in the case and what seems likely to happen that the case. The practical implication is this case will be back in federal district
court. It's not going to stay court, and once back in federal district court, it will be at the very least very difficult for Texas to try to once again pull off the uh, you know, the Shenanigan of trying to get it dismissed on the grounds that there is no you know that there is no proper jurisdiction. Another question for you, professor, do you think that when the case goes back to the lower courts they will rule in favor
of Texas and say that it is not self executing? The Supreme Court has said that you don't need to rule on self execution because here you can bring the case perhaps even in federal court on the even without it being self executing, because you can in effect use this Texas cause of action to bring a federal constitutional claim. Uh. Therefore, you know, the District court and
the Fifth Circuit presumably would not need to rule on self execution. In last, Texas tries to find in some way to nonetheless try to get this case out of federal court. And it is a little bit screwy because it's not completely clear that this case could have under the reason of the Federal Supreme Court just now. It's not completely clear that this case could have been filed in
federal district court to begin with. However, the Texas has now put it into federal court and it looks like it's not going to be kicked back out to state court. And now that it is in federal court, it seems like under the Supreme Court's decision, it can proceed under this Texas cause of action procedurally, but it's for a federal substantive claim, the takings cause claim.
So I think it's hard to be one hundred percent sure about this because of some of the ambiguities in the Supreme Court decision, But I think what will likely happen is the District Court will rule on the substance of the claim, that is, whether or not this flooding was a valuation of the takings clause. That might then be subject to an appeal to the Fifth Circuit.
But it will be difficult or impossible probably for Texas to try to just get this case kicked out on procedural grounds again, because you know, it is going to be back in the district in the federal District Court, and Texas essentially, you know, got out of a worse defeat in the Federal Supreme Court by conceding that you can file this case under a Texas cause of action. Uh. And uh, you know, the Federal District Court at this
point at least presumably has jurisdiction over that Texas cause of action. UH. So it will not be easy for Texas to weasel out of this, but it's possible. There's some procedural angle I'm somehow missing here, but my expectation at this point is that the most likely scenario is the case will go to the merits, the district Court will have to decide whether there was a taking or not, and then the Fifth Circuit could potentially be reviewed out to termination.
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