Supreme Court VICTORY For Property Rights

One of the best things about working at IJ is being able to solve problems caused by government. Instead of reading about things happening in the world and getting angry about them, we read about things happening in the world and then we fix them.

There’s no better example of that than Richie DeVillier’s case. As featured in the December issue, the rancher’s family land was devastated after Texas transportation officials built a dam along a nearby highway median, flooding out Richie and all his neighbors. When Richie sued, claiming that the Fifth Amendment required Texas to pay just compensation if it wanted to turn his land into a lake, Texas persuaded the 5th Circuit to throw his claim out. According to that court, Richie could only sue to enforce the Fifth Amendment if federal civil rights statutes allowed him to sue, and those statutes don’t allow for lawsuits against state governments. In other words, Congress was exclusively in charge of whether Richie could enforce the Constitution, and Congress hadn’t given him permission.

I’ll confess—when we read that opinion, we did get angry about it. Congress doesn’t need to order Texas to enforce the Constitution! The Constitution orders Texas to enforce the Constitution! Of course courts have the power to step in when the government shirks its constitutional duties! 

But at IJ, getting angry is the beginning, not the end. So we stepped in and successfully persuaded the U.S. Supreme Court to take the case. After all, this was outrageous: The appeals court ruling effectively meant that Texas would have to follow the Constitution only when it wanted to—and the state, unsurprisingly, didn’t want to.

Once we managed to catch the attention of the high court, though, Texas started to change its tune. After all, it’s outrageous to say that Texas can’t be forced to obey the Fifth Amendment—and once IJ’s briefs made clear exactly how outrageous that was, Texas seemed unwilling to defend that position. Maybe, Texas said, Richie should be allowed to sue under the Fifth Amendment after all.

By the time the case got to oral argument, Texas’ position had entirely changed. Sure, maybe the appellate court had said the Constitution could only be enforced through federal civil rights statutes, but Texas, at least, could be sued under the Fifth Amendment directly. (This went over about as well as you’d expect. Justice Sotomayor accused Texas’ lawyer of a “bait and switch.”)

But, bait and switch or not, Texas had given up the game. And in April, we got a unanimous 9-0 decision from the Supreme Court conceding as much. Since Texas now agreed Richie was allowed to sue, the 5th Circuit decision that threw out Richie’s case was wrong and his claims had to be revived. Texas would now have to follow the requirements of the Fifth Amendment—and it could be hauled into court if it failed.

That’s not, of course, the end of the story. This ruling means that Richie (and every other property owner in Texas) can enforce their property rights against the state, but it tells us nothing about the rest of the country. That is why IJ is continuing the fight to protect property rights nationwide. Because there are still things out there to get angry about—and, most importantly, to fix.

Robert McNamara is IJ’s deputy litigation director.