WEBVTT 1 00:00:02.439 --> 00:00:06.919 Welcome to scotus Cast, a project of the Federalist Society for Law and Public 2 00:00:06.960 --> 00:00:11.800 Policy Studies. Our contributors joined us from around the country to bring you expert 3 00:00:11.800 --> 00:00:16.679 commentary on US Supreme Court cases as they are argued and the decisions are issued. 4 00:00:16.960 --> 00:00:21.559 The Federalist Society takes no position on particular legal or public policy issues. 5 00:00:21.800 --> 00:00:29.760 All expressions are those of the speaker. Hello, and welcome to scot Discast. 6 00:00:30.039 --> 00:00:33.759 I'm your host, Kyle hammernis On, behalf of the Faculty division of 7 00:00:33.799 --> 00:00:39.119 the Federalist Society. We are here today to discuss Devilier versus Texas, in 8 00:00:39.159 --> 00:00:43.600 which the Supreme Court issued a nine to zero decision on April sixteenth, twenty 9 00:00:43.640 --> 00:00:48.399 twenty four. It is my honor to introduce our guests today, Professor Ilia 10 00:00:48.520 --> 00:00:53.320 Sohman. Professor Soman is a professor of law at George Mason University, antonin 11 00:00:53.359 --> 00:00:58.799 Scalia Law School and he is the b Ken Assignment charn Constitutional Studies at the 12 00:00:58.840 --> 00:01:03.280 Cato Institute. Professor Soman also filed an amicus brief in this case on behalf 13 00:01:03.319 --> 00:01:07.799 of the Cato Institute and himself. And with that, I like to turn 14 00:01:07.840 --> 00:01:11.920 things over to our guest to discuss the overview of the case and the court's 15 00:01:11.959 --> 00:01:18.519 decision. My name is Ilia Soman. I'm a WAW professor, and I 16 00:01:18.560 --> 00:01:23.239 also filed an amekus brief in this case on behalf of myself and the Cato 17 00:01:23.319 --> 00:01:27.959 Institute supporting the property owner. And what I'm gonna do is gonna briefly explain 18 00:01:29.079 --> 00:01:33.319 what the case is about and what the court decided in a nin toz decision 19 00:01:33.439 --> 00:01:38.079 that was relatively narrow. So this case started because Richard DeVillier, who's a 20 00:01:38.079 --> 00:01:42.920 farmer in Texas, plus a number of other property owners, their land was 21 00:01:42.959 --> 00:01:47.439 flooded by the state as part of a public works project, and they sued, 22 00:01:47.640 --> 00:01:53.040 arguing that they had undergone a taking which required just compensation under the taking's 23 00:01:53.079 --> 00:01:57.400 closet of Fifth Amendment. And there is in fact a good deal of precedent 24 00:01:57.439 --> 00:02:00.519 going back all the way to the nineteenth century, which says that if the 25 00:02:00.519 --> 00:02:06.120 government deliberately damages or destroys your property, that qualifies as a taking, including 26 00:02:06.239 --> 00:02:10.199 if they fled your property as in this instance. Originally, DeVillier and the 27 00:02:10.240 --> 00:02:15.280 others filed their cases in state court. However, the state of Texas removed 28 00:02:15.319 --> 00:02:22.199 the case to federal court. Under a provision which allows removal in a situation 29 00:02:22.280 --> 00:02:28.800 where a federal district court would have had original jurisdiction quote unquote. But once 30 00:02:28.879 --> 00:02:31.759 they got to federal court, the state then tried to pull a cash twenty 31 00:02:31.800 --> 00:02:36.120 two. They said, Aha, now that we've gotten it into federal court, 32 00:02:36.439 --> 00:02:40.319 we can dismiss it on the grounds that the takings cluse is not self 33 00:02:40.360 --> 00:02:45.560 executing. That is, that you can't file a case against the state government 34 00:02:45.599 --> 00:02:50.960 for violating the takings clause in West Congress or the state government has passed legislation 35 00:02:51.479 --> 00:02:57.240 empowering you to do so, and the district court ruled against the state, 36 00:02:57.240 --> 00:03:00.400 I think correctly on the grounds that the takings clause is in fact self executing, 37 00:03:00.639 --> 00:03:05.560 that you can in fact sue a state for violating your rights and takings 38 00:03:05.599 --> 00:03:10.199 clause even if there's not specific authorizing legislation. The Fifth Circuit then, in 39 00:03:10.280 --> 00:03:15.639 a very cursory opinion that's wittering only just a few lines long. Uh, 40 00:03:15.879 --> 00:03:19.439 it dismissed the case. You know, on the grounds that you know that 41 00:03:19.439 --> 00:03:23.759 there's not a you know that that there's not a basis for a watsuit in 42 00:03:23.800 --> 00:03:29.439 a federal court at least complicitly endorsing the idea that the clause is not self 43 00:03:29.479 --> 00:03:34.080 executing. Uh. And then the case got to the Supreme Court, thanks 44 00:03:34.120 --> 00:03:37.680 in parts the efforts of the Institute for Justice, a public interest law firm 45 00:03:38.400 --> 00:03:42.800 which supports property rights, and took up the case. And when the Supreme 46 00:03:42.840 --> 00:03:46.159 Court granted sert on the case, they said, this is going to be 47 00:03:46.360 --> 00:03:51.280 about whether the takings clause is in fact self executing or not. Uh, 48 00:03:51.319 --> 00:03:53.639 and that that would be the uh, you know, the the issue that 49 00:03:53.680 --> 00:03:58.479 they were going to address. And I think everybody thought, including myself, 50 00:03:58.479 --> 00:04:01.199 that they were going to ultimately addressed that issue in one way or another. 51 00:04:01.520 --> 00:04:04.840 And I think had they addressed it, they should have said that this is 52 00:04:04.879 --> 00:04:12.800 in fact self executing, because the text of the Fifth Amendment specifically is not 53 00:04:13.319 --> 00:04:16.959 does not require any kind of additional legislation. And moreover, even if you 54 00:04:17.040 --> 00:04:24.279 think the payment of damage's remedies in general requires a federal statute to authorize, 55 00:04:24.319 --> 00:04:30.279 here, the remedy of just compensation is specifically written into the Constitution. So 56 00:04:30.360 --> 00:04:33.120 there's no doubt that this is a constitutional requirement. And it just wouldn't make 57 00:04:33.160 --> 00:04:36.800 any sense for either the state or the federal government to effect be able to 58 00:04:36.879 --> 00:04:43.720 nullify this simply because there isn't additional legislation, you know, to authorizing this, 59 00:04:44.639 --> 00:04:46.600 and you know, there's just no good reason to do that, and 60 00:04:46.680 --> 00:04:50.639 no evidence that the original meaning you know, requires this, nor is there 61 00:04:50.680 --> 00:04:57.319 any precedent requiring it. So certainly, and then to make it even more 62 00:04:57.360 --> 00:05:01.720 egregious, tax is here. Essentially we took the case out of state court 63 00:05:01.759 --> 00:05:06.279 and in the federal court and then tried to dismiss So under this approach, 64 00:05:06.360 --> 00:05:10.639 it's not just that there wouldn't be a remedy in federal court, there wouldn't 65 00:05:10.639 --> 00:05:15.160 be a remedy in state court either, because anytime anybody filed a taking's claim 66 00:05:15.199 --> 00:05:20.160 against Texas or another state that tried to pull the same trick in state court, 67 00:05:20.199 --> 00:05:24.879 the Texas could just remove it to federal court and then have a catch 68 00:05:24.879 --> 00:05:27.759 twenty two, where the very fact that they remove it to a federal court 69 00:05:28.079 --> 00:05:30.600 enables them to get rid of the case. The Supreme Court, in the 70 00:05:30.600 --> 00:05:36.480 twenty nineteen case of Nick versus the Township of Scott had specifically warned ruled against 71 00:05:36.519 --> 00:05:41.240 the idea of a catch twenty two. These are the words in a court 72 00:05:41.319 --> 00:05:46.279 not my whords where if you bring a case into state court under some previous 73 00:05:46.920 --> 00:05:50.560 decisions, then that may prevent you from ever being able to bring the case 74 00:05:50.600 --> 00:05:57.480 in a federal court and undertakings cause. And here it's even worse than that, 75 00:05:57.639 --> 00:06:01.160 because under this ruling by the fifth you couldn't even bring the case in 76 00:06:01.240 --> 00:06:05.079 state court because once he brought it in state court, Texas could remove it 77 00:06:05.160 --> 00:06:09.759 or another state could remove it and then get it dismissed in the federal court. 78 00:06:10.639 --> 00:06:15.040 So I expect and others expected the Supreme Court would ruin those issues. 79 00:06:15.279 --> 00:06:19.279 But what actually happened is that in the oral argument, the Texas Solicitor General 80 00:06:19.319 --> 00:06:25.680 representing the state of Texas, conceded that there actually is a state law cause 81 00:06:25.680 --> 00:06:30.560 of action not only under the state takings clause in the Texas Constitution, but 82 00:06:30.639 --> 00:06:33.560 also under the federal takings Clause. So the Supreme Court, in an opinion 83 00:06:33.639 --> 00:06:38.879 by Justice Clarence Thomas, they said, we don't even need to decide the 84 00:06:38.959 --> 00:06:43.279 issue of whether the takings cause is self execute or not. We can save 85 00:06:43.319 --> 00:06:47.079 that for another day because there is this Texas cause of action. So this 86 00:06:47.160 --> 00:06:53.279 case could just be brought under state court now or under the state law cause 87 00:06:53.279 --> 00:06:58.199 of action. The Supreme Court was not very clear on the issue of exactly 88 00:06:58.240 --> 00:07:00.519 what would then happen to the case, whether it would then be returned to 89 00:07:00.560 --> 00:07:04.560 the federal district court to continue there, or whether it would then have to 90 00:07:04.600 --> 00:07:09.639 be refiled in Texas state court, and if so, whether Texas could then 91 00:07:09.639 --> 00:07:14.000 try to remove it again. However, in discussing the issue and looking at 92 00:07:14.040 --> 00:07:17.319 it, it looks like the expectation is that this will return the federal court, 93 00:07:18.040 --> 00:07:23.879 and because the Supreme Court vacated the Fifth Circuit decision dismissing the case, 94 00:07:24.240 --> 00:07:29.360 it can now precede in federal court. The substantive issue that it will proceed 95 00:07:29.399 --> 00:07:33.000 about will be the federal takings clause as well as the Texas state takings clause. 96 00:07:33.759 --> 00:07:39.439 But presumably Texas will not be able to again dismiss the case on the 97 00:07:39.519 --> 00:07:45.199 grounds that there is no cause of action, because technically they will proceed under 98 00:07:45.279 --> 00:07:48.240 a state cause of action for a federal right. Though I wish the Court 99 00:07:48.279 --> 00:07:54.279 had been more clear on this, They did not decide the important issue of 100 00:07:54.319 --> 00:07:59.240 self execution, so that might arise again in the future if there is a 101 00:07:59.279 --> 00:08:03.680 state that this Ottawa a state cause of action. Or does not concede that 102 00:08:03.720 --> 00:08:09.040 they do, as happened in this case in the Supreme Court oral argument because 103 00:08:09.079 --> 00:08:13.600 of the sort of narrow nature of the Supreme Court decision and some ambiguities there. 104 00:08:15.240 --> 00:08:18.279 Ironically, both sides have tried to claim victory in the aftermath. But 105 00:08:18.360 --> 00:08:22.680 I think it is very obvious that on the issue that was actually decided, 106 00:08:24.000 --> 00:08:28.759 namely whether this particular case will get to proceed, I think Texas pretty obviously 107 00:08:28.839 --> 00:08:31.279 lost. That is what tech. If you look at texas As briefs, 108 00:08:31.399 --> 00:08:35.440 what they were trying to do is get the Fifth Circuit decision affirmed, thereby 109 00:08:35.799 --> 00:08:41.919 affirming the dismissal of the case against the state, and that decision was vacated. 110 00:08:41.919 --> 00:08:43.919 You don't have to take my word for that. You can look right 111 00:08:43.960 --> 00:08:48.919 in the Supreme Court opinion where at the end they say the Court of Appeal 112 00:08:48.039 --> 00:08:54.159 decision is vacated. That reinstates the District Court decision, allowing the case to 113 00:08:54.200 --> 00:08:58.200 go forward. It technically it may even reinstate the district court decisions. It 114 00:08:58.240 --> 00:09:03.320 says that this is sof executing, though obviously that decision, like other District 115 00:09:03.320 --> 00:09:07.399 court decisions, is not binding precedent. So this case can proceed, and 116 00:09:07.440 --> 00:09:09.120 at least for a moment, it seems like Texas will not be able to 117 00:09:09.159 --> 00:09:13.559 get it dismissed on this procedural ground, though perhaps they can win it later 118 00:09:13.679 --> 00:09:18.159 on a substantive ground, or perhaps they can somehow find a way to bring 119 00:09:18.240 --> 00:09:22.120 back sort of these procedural issues somehow. I'm not completely sure about that. 120 00:09:22.159 --> 00:09:26.480 It seems unlikely. But the court, the Supreme Court's decision is sufficiently vague 121 00:09:28.120 --> 00:09:33.759 that it's not completely clear on this. So when Texas Attorney General Ken Paxton 122 00:09:33.840 --> 00:09:37.639 claims that he actually won the case, it seemed to be very obvious that 123 00:09:37.720 --> 00:09:41.360 he did not. It might be very reasonable, more reasonable for him to 124 00:09:41.360 --> 00:09:45.240 say, well, we didn't lose as badly as we could have lost. 125 00:09:45.480 --> 00:09:48.200 If you issue a press release to that effect, that would have been accurate, 126 00:09:48.399 --> 00:09:52.360 because the court could have ruled on the issue of sex self execution and 127 00:09:52.440 --> 00:09:56.799 given them a more decisive loss on that question. They instead said, we're 128 00:09:56.840 --> 00:10:00.840 not ruling on that. On the other hand, they are letting the case 129 00:10:00.919 --> 00:10:03.759 proceed. Indeed, the whole reason why they didn't rule on the issue of 130 00:10:03.799 --> 00:10:09.159 self execution is that they decided that the case can proceed anyway, even aside 131 00:10:09.200 --> 00:10:13.720 from that issue. So you know, when you have a decision where it 132 00:10:13.840 --> 00:10:18.759 says the case that against you can proceed, even though your whole argument was 133 00:10:18.919 --> 00:10:22.600 that the Supreme Court should affirm the will re court decision which says that it 134 00:10:22.679 --> 00:10:26.159 can't proceed, that looks like a lost to me, even though obviously it's 135 00:10:26.240 --> 00:10:31.480 not quite as bad a loss as it could have been. So it's common 136 00:10:31.559 --> 00:10:37.360 for politicians to say deceptive statements, but this goes beyond even the usual practices 137 00:10:37.440 --> 00:10:43.919 in that I can't think of another case where a state attorney general actually lost 138 00:10:43.039 --> 00:10:46.759 in the Supreme Court and he instead tries to claim, you know, that 139 00:10:46.840 --> 00:10:52.559 he won, which he obviously didn't. But the issue of self execution remains 140 00:10:52.600 --> 00:10:58.039 potentially for the future, and there's a little bit of ambiguity about how this 141 00:10:58.120 --> 00:11:01.799 case will proceed. Do I think the most likely scenario is that it will 142 00:11:01.879 --> 00:11:07.000 just continue in federal district court. That court will make a ruin of some 143 00:11:07.080 --> 00:11:09.840 sort on the merits. It may be appeal to the Fifth Circuit. Maybe 144 00:11:09.879 --> 00:11:16.759 the Fifth Circuit could again try to dismiss on jurisdictional grounds at that point, 145 00:11:16.799 --> 00:11:22.480 but it will be difficult for them to do so. So I think the 146 00:11:22.559 --> 00:11:28.080 ultimate implication, at least for the moment, we have avoided a situation where 147 00:11:28.159 --> 00:11:31.919 a state could create a kind of cash twenty two under which they take the 148 00:11:31.960 --> 00:11:35.639 position that it's impossible to suit them in federal court for a taking's viuation, 149 00:11:37.080 --> 00:11:39.720 but if you suit them in state court, they can remove the case to 150 00:11:39.799 --> 00:11:43.480 federal court and then get it dismissed. Hopefully, the recent Supreme Court decision 151 00:11:43.519 --> 00:11:48.519 will put an end to those kinds of shenanigans, though it's not completely clear 152 00:11:48.440 --> 00:11:52.279 as to what the implications are is unfortunately didn't say so in so many words, 153 00:11:54.240 --> 00:11:58.240 but I think at the very least there's a suggestion here that they will 154 00:11:58.240 --> 00:12:01.600 not allow that, especially if you combine that with the previous Nick case, 155 00:12:01.799 --> 00:12:07.759 which discusses said that it's an impermissible catch twenty two even to have a situation 156 00:12:07.879 --> 00:12:13.519 where going to state court permanently bars you from a federal court and you're required 157 00:12:13.559 --> 00:12:16.559 to go to state court first, as was true under the Williamson County case 158 00:12:16.840 --> 00:12:22.519 in nineteen eighty five, which the Nick Case overruled. So I think this 159 00:12:22.679 --> 00:12:28.440 is a very narrow decision, but one that avoids what would have been a 160 00:12:28.519 --> 00:12:31.279 very bad decision had it gone the other way. But it does leave the 161 00:12:31.320 --> 00:12:39.279 issue of self execution for a possible future Supreme Court decision. I think when 162 00:12:39.360 --> 00:12:43.080 and if the Supreme Court reaches that issue, which should rule that the takings 163 00:12:43.080 --> 00:12:46.759 clause is self executing. Indeed, I think almost all constitutional rights are presumptively 164 00:12:46.799 --> 00:12:50.039 self executing, but in the case of the takings clause, it's even more 165 00:12:50.159 --> 00:12:54.960 clear than for many others. And I'll stop there, but I'll be happy 166 00:12:54.960 --> 00:12:58.159 to answer any questions that you might have. Well, thank you so much, 167 00:12:58.159 --> 00:13:05.440 professor for that overview and the discussion about the decision. As a person 168 00:13:05.519 --> 00:13:09.399 who filed an amachust brief, do you think that the Court missed an opportunity 169 00:13:09.799 --> 00:13:15.480 in discussing the self execution. Well, our brief was partly about catch twenty 170 00:13:15.480 --> 00:13:18.639 two and partly about self execution. More generally, I think the Court could 171 00:13:18.679 --> 00:13:24.080 have simply said, we resolved this case on two different grounds. A, 172 00:13:24.559 --> 00:13:28.279 there is self execution, and B in this case, even if there were 173 00:13:28.320 --> 00:13:31.720 not, you know, there is this alternative wib proceeding in there ours. 174 00:13:31.720 --> 00:13:37.840 There is certainly the President for the Supreme Court deciding cases on two different grounds 175 00:13:37.879 --> 00:13:41.399 simultaneously. That's not you know that's not forbidden, but they also certainly had 176 00:13:41.440 --> 00:13:46.600 a discretion to do what they did, which is resolve it the immediate issue 177 00:13:46.639 --> 00:13:50.919 on this very narrow ground. Though even that, I would have preferred that 178 00:13:50.960 --> 00:13:54.080 they be a bit clear on exactly what they're doing. But it does seem 179 00:13:54.120 --> 00:13:58.360 to me in document participants in the case and what seems likely to happen that 180 00:13:58.440 --> 00:14:03.840 the case. The practical implication is this case will be back in federal district 181 00:14:03.879 --> 00:14:07.960 court. It's not going to stay court, and once back in federal district 182 00:14:07.960 --> 00:14:11.360 court, it will be at the very least very difficult for Texas to try 183 00:14:11.360 --> 00:14:13.840 to once again pull off the uh, you know, the Shenanigan of trying 184 00:14:13.840 --> 00:14:18.360 to get it dismissed on the grounds that there is no you know that there 185 00:14:18.399 --> 00:14:22.799 is no proper jurisdiction. Another question for you, professor, do you think 186 00:14:22.559 --> 00:14:26.480 that when the case goes back to the lower courts they will rule in favor 187 00:14:26.519 --> 00:14:33.159 of Texas and say that it is not self executing? The Supreme Court has 188 00:14:33.200 --> 00:14:37.679 said that you don't need to rule on self execution because here you can bring 189 00:14:37.720 --> 00:14:43.320 the case perhaps even in federal court on the even without it being self executing, 190 00:14:43.399 --> 00:14:46.799 because you can in effect use this Texas cause of action to bring a 191 00:14:46.840 --> 00:14:52.480 federal constitutional claim. Uh. Therefore, you know, the District court and 192 00:14:52.519 --> 00:14:58.720 the Fifth Circuit presumably would not need to rule on self execution. In last, 193 00:14:58.799 --> 00:15:01.559 Texas tries to find in some way to nonetheless try to get this case 194 00:15:01.879 --> 00:15:07.600 out of federal court. And it is a little bit screwy because it's not 195 00:15:07.679 --> 00:15:13.240 completely clear that this case could have under the reason of the Federal Supreme Court 196 00:15:13.360 --> 00:15:16.240 just now. It's not completely clear that this case could have been filed in 197 00:15:16.320 --> 00:15:22.360 federal district court to begin with. However, the Texas has now put it 198 00:15:22.360 --> 00:15:26.320 into federal court and it looks like it's not going to be kicked back out 199 00:15:26.360 --> 00:15:28.519 to state court. And now that it is in federal court, it seems 200 00:15:28.559 --> 00:15:33.639 like under the Supreme Court's decision, it can proceed under this Texas cause of 201 00:15:33.679 --> 00:15:39.399 action procedurally, but it's for a federal substantive claim, the takings cause claim. 202 00:15:39.480 --> 00:15:43.919 So I think it's hard to be one hundred percent sure about this because 203 00:15:43.960 --> 00:15:46.279 of some of the ambiguities in the Supreme Court decision, But I think what 204 00:15:46.320 --> 00:15:52.440 will likely happen is the District Court will rule on the substance of the claim, 205 00:15:52.480 --> 00:15:54.960 that is, whether or not this flooding was a valuation of the takings 206 00:15:56.000 --> 00:15:58.519 clause. That might then be subject to an appeal to the Fifth Circuit. 207 00:16:00.519 --> 00:16:04.080 But it will be difficult or impossible probably for Texas to try to just get 208 00:16:04.080 --> 00:16:11.480 this case kicked out on procedural grounds again, because you know, it is 209 00:16:11.639 --> 00:16:15.080 going to be back in the district in the federal District Court, and Texas 210 00:16:15.360 --> 00:16:18.360 essentially, you know, got out of a worse defeat in the Federal Supreme 211 00:16:18.399 --> 00:16:23.080 Court by conceding that you can file this case under a Texas cause of action. 212 00:16:23.679 --> 00:16:26.639 Uh. And uh, you know, the Federal District Court at this 213 00:16:26.679 --> 00:16:32.440 point at least presumably has jurisdiction over that Texas cause of action. UH. 214 00:16:32.559 --> 00:16:34.799 So it will not be easy for Texas to weasel out of this, but 215 00:16:36.639 --> 00:16:41.039 it's possible. There's some procedural angle I'm somehow missing here, but my expectation 216 00:16:41.120 --> 00:16:44.559 at this point is that the most likely scenario is the case will go to 217 00:16:44.600 --> 00:16:48.120 the merits, the district Court will have to decide whether there was a taking 218 00:16:48.200 --> 00:16:51.840 or not, and then the Fifth Circuit could potentially be reviewed out to termination. 219 00:16:52.159 --> 00:16:56.039 Thank you for listening to this episode of SCO Discussed. 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