Strong Indications of Property Rights Victory Emerged in Devillier v. Texas Oral Argument

Today the Supreme Court heard oral argument in Devillier v. Texas, an important Takings Clause property rights case. Based on what was said, I think it very likely that the property owner will win, and that the outcome will be a significant victory for property rights generally. I previously wrote about this case here, and in an amicus brief I filed along with the Cato Institute. The main issue at stake is whether state governments can evade liability for violating the Takings Clause of the Fifth Amendment merely because Congress has not enacted a statute specifically giving property owners the right to sue over such issues in federal court. In this case, the state of Texas flooded Mr. Devillier’s ranch as a result of a highway project. When he filed a takings claim in state court, Texas removed the case to federal court under 28 U.S. Code Section 1441, which allows defendants to remove to federal court “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” They then persuaded the US Court of Appeals for the Fifth Circuit to dismiss the case on the ground that it could not be brought in federal court because Congress hadn’t enacted a statute allowing property owners to do so. If allowed to stand, this maneuver creates a Catch-22 under which states can evade takings liability by removing cases to federal court and then having them dismissed. Alternatively, a “rogue” state can simply choose not to allow such claims to be brought in its state courts in the first place. As explained in our amicus brief and my first post about this case, the Supreme Court had already signaled such a Catch-22 barring takings claims from federal court is impermissible in its 2019 ruling in Knick v. Township of Scott. If today’s oral argument is any indication, the justices are not going to allow Texas to bring back the Catch-22 in even more egregious form than the one it abolished in Knick. Multiple justices suggested that they are not willing to accept the approa…