Courts

How Strong Is The Takings Clause, Really?

'The 5th Circuit’s decision in this case amounts to ‘you pay if you feel like it.'' - Robert McNamara

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When people usually talk about the Fifth Amendment, they do so in the context of criminal hearings. But there’s more to the Fifth than being a legendary Chappelle bit. The takings clause is kinda like the Third Amendment in that people forget how important of  a constitutional protection it is right up until the state starts having its way with your property. A taking, constructive or otherwise, happens when the government either grabs or so meddles with that they basically grab your stuff up. If and when that happens, they’re supposed to pay you justly. It is easy when there is a cut and dry example like Uncle Sam grabbing your land for personal use. But what about when fixing a highway has collateral damage? From the ABA Journal:

The U.S. Supreme Court on Friday agreed to decide whether Texas landowners can sue the state under the takings clause for flooding caused by highway reconstruction even when a statute has not authorized lawsuits.

To sue a state, said state generally has to grant consent to sue it first. State sovereign immunity, blah blah blah. But here, that would have the effect of trumping a constitutional protection. Don’t you just love when legal norms are in conflict?

The U.S. Supreme Court agreed to hear four consolidated cases that argue the takings clause is “self-executing,” meaning the landowners can sue directly under the Fifth Amendment as applied to the states by 14th Amendment.

The redirected water claimed “countless crops and killed several animals.” This case could have just as easily been about cars or any other property destroyed by government acts — negligent or otherwise.

If you’ve been wanting to read about interesting constitutional issues that don’t involve the Supreme Court not having a binding ethics code, get your fix with Devillier v. Texas.

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5th Circuit Takings Ruling That Breaks ‘Pottery Barn rule’ Will Be Reviewed By US Supreme Court [ABA Journal]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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