April 29, 2024 • 17 mins
On April 16th, 2024, the Supreme Court issued its ruling in Devillier v. Texas. At issue was whether owners of property north of U. S. Interstate Highway 10 adversely affected by the flood evacuation barrier constructed by Texas should be permitted on remand to pursue their takings clause claims through the cause of action available under Texas law.
Join us to hear Prof. Ilya Somin break down the decision and discuss its potential ramifications.
Featuring:
Prof. Ilya Somin, Professor of Law, George Mason University Antonin Scalia Law School and B. Kenneth Simon Chair in Constitutional Studies, Cato Institute
Join us to hear Prof. Ilya Somin break down the decision and discuss its potential ramifications.
Featuring:
Prof. Ilya Somin, Professor of Law, George Mason University Antonin Scalia Law School and B. Kenneth Simon Chair in Constitutional Studies, Cato Institute
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:02):
Welcome to scotus Cast, a projectof the Federalist Society for Law and Public
Policy Studies. Our contributors joined usfrom around the country to bring you expert
commentary on US Supreme Court cases asthey are argued and the decisions are issued.
The Federalist Society takes no position onparticular legal or public policy issues.
All expressions are those of the speaker. Hello, and welcome to scot Discast.
(00:30):
I'm your host, Kyle hammernis On, behalf of the Faculty division of
the Federalist Society. We are heretoday to discuss Devilier versus Texas, in
which the Supreme Court issued a nineto zero decision on April sixteenth, twenty
twenty four. It is my honorto introduce our guests today, Professor Ilia
Sohman. Professor Soman is a professorof law at George Mason University, antonin
(00:53):
Scalia Law School and he is theb Ken Assignment charn Constitutional Studies at the
Cato Institute. Professor Soman also filedan 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 discussthe overview of the case and the court's
decision. My name is Ilia Soman. I'm a WAW professor, and I
(01:18):
also filed an amekus brief in thiscase on behalf of myself and the Cato
Institute supporting the property owner. Andwhat I'm gonna do is gonna briefly explain
what the case is about and whatthe court decided in a nin toz decision
that was relatively narrow. So thiscase started because Richard DeVillier, who's a
farmer in Texas, plus a numberof other property owners, their land was
(01:42):
flooded by the state as part ofa public works project, and they sued,
arguing that they had undergone a takingwhich required just compensation under the taking's
closet of Fifth Amendment. And thereis in fact a good deal of precedent
going back all the way to thenineteenth century, which says that if the
government deliberately damages or destroys your property, that qualifies as a taking, including
(02:06):
if they fled your property as inthis instance. Originally, DeVillier and the
others filed their cases in state court. However, the state of Texas removed
the case to federal court. Undera provision which allows removal in a situation
where a federal district court would havehad original jurisdiction quote unquote. But once
(02:28):
they got to federal court, thestate 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 groundsthat the takings cluse is not self
executing. That is, that youcan't file a case against the state government
for violating the takings clause in WestCongress or the state government has passed legislation
(02:51):
empowering you to do so, andthe district court ruled against the state,
I think correctly on the grounds thatthe takings clause is in fact self executing,
that you can in fact sue astate for violating your rights and takings
clause even if there's not specific authorizinglegislation. The Fifth Circuit then, in
a very cursory opinion that's wittering onlyjust a few lines long. Uh,
(03:15):
it dismissed the case. You know, on the grounds that you know that
there's not a you know that thatthere's not a basis for a watsuit in
a federal court at least complicitly endorsingthe idea that the clause is not self
executing. Uh. And then thecase got to the Supreme Court, thanks
in parts the efforts of the Institutefor Justice, a public interest law firm
(03:38):
which supports property rights, and tookup 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 infact self executing or not. Uh,
and that that would be the uh, you know, the the issue that
they were going to address. AndI think everybody thought, including myself,
(03:58):
that they were going to ultimately addressedthat 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 thetext of the Fifth Amendment specifically is not
does not require any kind of additionallegislation. And moreover, even if you
think the payment of damage's remedies ingeneral requires a federal statute to authorize,
(04:24):
here, the remedy of just compensationis specifically written into the Constitution. So
there's no doubt that this is aconstitutional requirement. And it just wouldn't make
any sense for either the state orthe federal government to effect be able to
nullify this simply because there isn't additionallegislation, you know, to authorizing this,
(04:44):
and you know, there's just nogood reason to do that, and
no evidence that the original meaning youknow, requires this, nor is there
any precedent requiring it. So certainly, and then to make it even more
egregious, tax is here. Essentiallywe took the case out of state court
and in the federal court and thentried to dismiss So under this approach,
(05:06):
it's not just that there wouldn't bea 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 triedto pull the same trick in state court,
the Texas could just remove it tofederal court and then have a catch
twenty two, where the very factthat they remove it to a federal court
(05:28):
enables them to get rid of thecase. The Supreme Court, in the
twenty nineteen case of Nick versus theTownship 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 bringa case into state court under some previous
decisions, then that may prevent youfrom ever being able to bring the case
(05:50):
in a federal court and undertakings cause. And here it's even worse than that,
because under this ruling by the fifthyou couldn't even bring the case in
state court because once he brought itin state court, Texas could remove it
or another state could remove it andthen get it dismissed in the federal court.
(06:10):
So I expect and others expected theSupreme Court would ruin those issues.
But what actually happened is that inthe oral argument, the Texas Solicitor General
representing the state of Texas, concededthat there actually is a state law cause
of action not only under the statetakings clause in the Texas Constitution, but
also under the federal takings Clause.So the Supreme Court, in an opinion
(06:33):
by Justice Clarence Thomas, they said, we don't even need to decide the
issue of whether the takings cause isself execute or not. We can save
that for another day because there isthis Texas cause of action. So this
case could just be brought under statecourt now or under the state law cause
of action. The Supreme Court wasnot very clear on the issue of exactly
(06:58):
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 expectationis that this will return the federal court,
and because the Supreme Court vacated theFifth Circuit decision dismissing the case,
(07:24):
it can now precede in federal court. The substantive issue that it will proceed
about will be the federal takings clauseas well as the Texas state takings clause.
But presumably Texas will not be ableto again dismiss the case on the
grounds that there is no cause ofaction, because technically they will proceed under
(07:45):
a state cause of action for afederal 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 ariseagain in the future if there is a
state that this Ottawa a state causeof action. Or does not concede that
they do, as happened in thiscase in the Supreme Court oral argument because
(08:09):
of the sort of narrow nature ofthe Supreme Court decision and some ambiguities there.
Ironically, both sides have tried toclaim victory in the aftermath. But
I think it is very obvious thaton the issue that was actually decided,
namely whether this particular case will getto proceed, I think Texas pretty obviously
lost. That is what tech.If you look at texas As briefs,
(08:31):
what they were trying to do isget the Fifth Circuit decision affirmed, thereby
affirming the dismissal of the case againstthe state, and that decision was vacated.
You don't have to take my wordfor that. You can look right
in the Supreme Court opinion where atthe end they say the Court of Appeal
decision is vacated. That reinstates theDistrict Court decision, allowing the case to
(08:54):
go forward. It technically it mayeven 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, itseems 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 perhapsthey can somehow find a way to bring
(09:18):
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 bevery reasonable, more reasonable for him to
(09:41):
say, well, we didn't loseas badly as we could have lost.
If you issue a press release tothat effect, that would have been accurate,
because the court could have ruled onthe issue of sex self execution and
given them a more decisive loss onthat question. They instead said, we're
not ruling on that. On theother hand, they are letting the case
proceed. Indeed, the whole reasonwhy they didn't rule on the issue of
(10:03):
self execution is that they decided thatthe 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 canproceed, even though your whole argument was
that the Supreme Court should affirm thewill re court decision which says that it
can't proceed, that looks like alost to me, even though obviously it's
(10:26):
not quite as bad a loss asit 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 anothercase where a state attorney general actually lost
in the Supreme Court and he insteadtries to claim, you know, that
(10:46):
he won, which he obviously didn't. But the issue of self execution remains
potentially for the future, and there'sa little bit of ambiguity about how this
case will proceed. Do I thinkthe most likely scenario is that it will
just continue in federal district court.That court will make a ruin of some
(11:07):
sort on the merits. It maybe appeal to the Fifth Circuit. Maybe
the Fifth Circuit could again try todismiss on jurisdictional grounds at that point,
but it will be difficult for themto do so. So I think the
ultimate implication, at least for themoment, we have avoided a situation where
(11:28):
a state could create a kind ofcash twenty two under which they take the
position that it's impossible to suit themin federal court for a taking's viuation,
but if you suit them in statecourt, 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 kindsof shenanigans, though it's not completely clear
(11:48):
as to what the implications are isunfortunately didn't say so in so many words,
but I think at the very leastthere's a suggestion here that they will
not allow that, especially if youcombine that with the previous Nick case,
which discusses said that it's an impermissiblecatch twenty two even to have a situation
where going to state court permanently barsyou from a federal court and you're required
(12:13):
to go to state court first,as was true under the Williamson County case
in nineteen eighty five, which theNick Case overruled. So I think this
is a very narrow decision, butone that avoids what would have been a
very bad decision had it gone theother way. But it does leave the
issue of self execution for a possiblefuture Supreme Court decision. I think when
(12:39):
and if the Supreme Court reaches thatissue, which should rule that the takings
clause is self executing. Indeed,I think almost all constitutional rights are presumptively
self executing, but in the caseof the takings clause, it's even more
clear than for many others. AndI'll stop there, but I'll be happy
to answer any questions that you mighthave. Well, thank you so much,
professor for that overview and the discussionabout the decision. As a person
(13:05):
who filed an amachust brief, doyou 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 thiscase on two different grounds. A,
there is self execution, and Bin this case, even if there were
(13:28):
not, you know, there isthis alternative wib proceeding in there ours.
There is certainly the President for theSupreme Court deciding cases on two different grounds
simultaneously. That's not you know that'snot 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. Thougheven that, I would have preferred that
(13:50):
they be a bit clear on exactlywhat they're doing. But it does seem
to me in document participants in thecase and what seems likely to happen that
the case. The practical implication isthis case will be back in federal district
court. It's not going to staycourt, and once back in federal district
court, it will be at thevery least very difficult for Texas to try
(14:11):
to once again pull off the uh, you know, the Shenanigan of trying
to get it dismissed on the groundsthat there is no you know that there
is no proper jurisdiction. Another questionfor you, professor, do you think
that when the case goes back tothe lower courts they will rule in favor
of Texas and say that it isnot self executing? The Supreme Court has
(14:33):
said that you don't need to ruleon self execution because here you can bring
the case perhaps even in federal courton the even without it being self executing,
because you can in effect use thisTexas cause of action to bring a
federal constitutional claim. Uh. Therefore, you know, the District court and
the Fifth Circuit presumably would not needto rule on self execution. In last,
(14:58):
Texas tries to find in some wayto nonetheless try to get this case
out of federal court. And itis a little bit screwy because it's not
completely clear that this case could haveunder the reason of the Federal Supreme Court
just now. It's not completely clearthat this case could have been filed in
federal district court to begin with.However, the Texas has now put it
(15:22):
into federal court and it looks likeit's not going to be kicked back out
to state court. And now thatit 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 afederal substantive claim, the takings cause claim.
So I think it's hard to beone hundred percent sure about this because
(15:43):
of some of the ambiguities in theSupreme Court decision, But I think what
will likely happen is the District Courtwill rule on the substance of the claim,
that is, whether or not thisflooding was a valuation of the takings
clause. That might then be subjectto an appeal to the Fifth Circuit.
But it will be difficult or impossibleprobably for Texas to try to just get
(16:04):
this case kicked out on procedural groundsagain, because you know, it is
going to be back in the districtin the federal District Court, and Texas
essentially, you know, got outof a worse defeat in the Federal Supreme
Court by conceding that you can filethis case under a Texas cause of action.
Uh. And uh, you know, the Federal District Court at this
(16:26):
point at least presumably has jurisdiction overthat Texas cause of action. UH.
So it will not be easy forTexas to weasel out of this, but
it's possible. There's some procedural angleI'm somehow missing here, but my expectation
at this point is that the mostlikely scenario is the case will go to
the merits, the district Court willhave to decide whether there was a taking
(16:48):
or not, and then the FifthCircuit could potentially be reviewed out to termination.
Thank you for listening to this episodeof SCO Discussed. Discussed is a
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(17:11):
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slash multimedia. That's feed sooc dotorg slash multimedia. This has been a
FEDSOC audio production.
Welcome to scotus Cast, a projectof the Federalist Society for Law and Public
Policy Studies. Our contributors joined usfrom around the country to bring you expert
commentary on US Supreme Court cases asthey are argued and the decisions are issued.
The Federalist Society takes no position onparticular legal or public policy issues.
All expressions are those of the speaker. Hello, and welcome to scot Discast.
(00:30):
I'm your host, Kyle hammernis On, behalf of the Faculty division of
the Federalist Society. We are heretoday to discuss Devilier versus Texas, in
which the Supreme Court issued a nineto zero decision on April sixteenth, twenty
twenty four. It is my honorto introduce our guests today, Professor Ilia
Sohman. Professor Soman is a professorof law at George Mason University, antonin
(00:53):
Scalia Law School and he is theb Ken Assignment charn Constitutional Studies at the
Cato Institute. Professor Soman also filedan 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 discussthe overview of the case and the court's
decision. My name is Ilia Soman. I'm a WAW professor, and I
(01:18):
also filed an amekus brief in thiscase on behalf of myself and the Cato
Institute supporting the property owner. Andwhat I'm gonna do is gonna briefly explain
what the case is about and whatthe court decided in a nin toz decision
that was relatively narrow. So thiscase started because Richard DeVillier, who's a
farmer in Texas, plus a numberof other property owners, their land was
(01:42):
flooded by the state as part ofa public works project, and they sued,
arguing that they had undergone a takingwhich required just compensation under the taking's
closet of Fifth Amendment. And thereis in fact a good deal of precedent
going back all the way to thenineteenth century, which says that if the
government deliberately damages or destroys your property, that qualifies as a taking, including
(02:06):
if they fled your property as inthis instance. Originally, DeVillier and the
others filed their cases in state court. However, the state of Texas removed
the case to federal court. Undera provision which allows removal in a situation
where a federal district court would havehad original jurisdiction quote unquote. But once
(02:28):
they got to federal court, thestate 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 groundsthat the takings cluse is not self
executing. That is, that youcan't file a case against the state government
for violating the takings clause in WestCongress or the state government has passed legislation
(02:51):
empowering you to do so, andthe district court ruled against the state,
I think correctly on the grounds thatthe takings clause is in fact self executing,
that you can in fact sue astate for violating your rights and takings
clause even if there's not specific authorizinglegislation. The Fifth Circuit then, in
a very cursory opinion that's wittering onlyjust a few lines long. Uh,
(03:15):
it dismissed the case. You know, on the grounds that you know that
there's not a you know that thatthere's not a basis for a watsuit in
a federal court at least complicitly endorsingthe idea that the clause is not self
executing. Uh. And then thecase got to the Supreme Court, thanks
in parts the efforts of the Institutefor Justice, a public interest law firm
(03:38):
which supports property rights, and tookup 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 infact self executing or not. Uh,
and that that would be the uh, you know, the the issue that
they were going to address. AndI think everybody thought, including myself,
(03:58):
that they were going to ultimately addressedthat 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 thetext of the Fifth Amendment specifically is not
does not require any kind of additionallegislation. And moreover, even if you
think the payment of damage's remedies ingeneral requires a federal statute to authorize,
(04:24):
here, the remedy of just compensationis specifically written into the Constitution. So
there's no doubt that this is aconstitutional requirement. And it just wouldn't make
any sense for either the state orthe federal government to effect be able to
nullify this simply because there isn't additionallegislation, you know, to authorizing this,
(04:44):
and you know, there's just nogood reason to do that, and
no evidence that the original meaning youknow, requires this, nor is there
any precedent requiring it. So certainly, and then to make it even more
egregious, tax is here. Essentiallywe took the case out of state court
and in the federal court and thentried to dismiss So under this approach,
(05:06):
it's not just that there wouldn't bea 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 triedto pull the same trick in state court,
the Texas could just remove it tofederal court and then have a catch
twenty two, where the very factthat they remove it to a federal court
(05:28):
enables them to get rid of thecase. The Supreme Court, in the
twenty nineteen case of Nick versus theTownship 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 bringa case into state court under some previous
decisions, then that may prevent youfrom ever being able to bring the case
(05:50):
in a federal court and undertakings cause. And here it's even worse than that,
because under this ruling by the fifthyou couldn't even bring the case in
state court because once he brought itin state court, Texas could remove it
or another state could remove it andthen get it dismissed in the federal court.
(06:10):
So I expect and others expected theSupreme Court would ruin those issues.
But what actually happened is that inthe oral argument, the Texas Solicitor General
representing the state of Texas, concededthat there actually is a state law cause
of action not only under the statetakings clause in the Texas Constitution, but
also under the federal takings Clause.So the Supreme Court, in an opinion
(06:33):
by Justice Clarence Thomas, they said, we don't even need to decide the
issue of whether the takings cause isself execute or not. We can save
that for another day because there isthis Texas cause of action. So this
case could just be brought under statecourt now or under the state law cause
of action. The Supreme Court wasnot very clear on the issue of exactly
(06:58):
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 expectationis that this will return the federal court,
and because the Supreme Court vacated theFifth Circuit decision dismissing the case,
(07:24):
it can now precede in federal court. The substantive issue that it will proceed
about will be the federal takings clauseas well as the Texas state takings clause.
But presumably Texas will not be ableto again dismiss the case on the
grounds that there is no cause ofaction, because technically they will proceed under
(07:45):
a state cause of action for afederal 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 ariseagain in the future if there is a
state that this Ottawa a state causeof action. Or does not concede that
they do, as happened in thiscase in the Supreme Court oral argument because
(08:09):
of the sort of narrow nature ofthe Supreme Court decision and some ambiguities there.
Ironically, both sides have tried toclaim victory in the aftermath. But
I think it is very obvious thaton the issue that was actually decided,
namely whether this particular case will getto proceed, I think Texas pretty obviously
lost. That is what tech.If you look at texas As briefs,
(08:31):
what they were trying to do isget the Fifth Circuit decision affirmed, thereby
affirming the dismissal of the case againstthe state, and that decision was vacated.
You don't have to take my wordfor that. You can look right
in the Supreme Court opinion where atthe end they say the Court of Appeal
decision is vacated. That reinstates theDistrict Court decision, allowing the case to
(08:54):
go forward. It technically it mayeven 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, itseems 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 perhapsthey can somehow find a way to bring
(09:18):
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 bevery reasonable, more reasonable for him to
(09:41):
say, well, we didn't loseas badly as we could have lost.
If you issue a press release tothat effect, that would have been accurate,
because the court could have ruled onthe issue of sex self execution and
given them a more decisive loss onthat question. They instead said, we're
not ruling on that. On theother hand, they are letting the case
proceed. Indeed, the whole reasonwhy they didn't rule on the issue of
(10:03):
self execution is that they decided thatthe 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 canproceed, even though your whole argument was
that the Supreme Court should affirm thewill re court decision which says that it
can't proceed, that looks like alost to me, even though obviously it's
(10:26):
not quite as bad a loss asit 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 anothercase where a state attorney general actually lost
in the Supreme Court and he insteadtries to claim, you know, that
(10:46):
he won, which he obviously didn't. But the issue of self execution remains
potentially for the future, and there'sa little bit of ambiguity about how this
case will proceed. Do I thinkthe most likely scenario is that it will
just continue in federal district court.That court will make a ruin of some
(11:07):
sort on the merits. It maybe appeal to the Fifth Circuit. Maybe
the Fifth Circuit could again try todismiss on jurisdictional grounds at that point,
but it will be difficult for themto do so. So I think the
ultimate implication, at least for themoment, we have avoided a situation where
(11:28):
a state could create a kind ofcash twenty two under which they take the
position that it's impossible to suit themin federal court for a taking's viuation,
but if you suit them in statecourt, 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 kindsof shenanigans, though it's not completely clear
(11:48):
as to what the implications are isunfortunately didn't say so in so many words,
but I think at the very leastthere's a suggestion here that they will
not allow that, especially if youcombine that with the previous Nick case,
which discusses said that it's an impermissiblecatch twenty two even to have a situation
where going to state court permanently barsyou from a federal court and you're required
(12:13):
to go to state court first,as was true under the Williamson County case
in nineteen eighty five, which theNick Case overruled. So I think this
is a very narrow decision, butone that avoids what would have been a
very bad decision had it gone theother way. But it does leave the
issue of self execution for a possiblefuture Supreme Court decision. I think when
(12:39):
and if the Supreme Court reaches thatissue, which should rule that the takings
clause is self executing. Indeed,I think almost all constitutional rights are presumptively
self executing, but in the caseof the takings clause, it's even more
clear than for many others. AndI'll stop there, but I'll be happy
to answer any questions that you mighthave. Well, thank you so much,
professor for that overview and the discussionabout the decision. As a person
(13:05):
who filed an amachust brief, doyou 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 thiscase on two different grounds. A,
there is self execution, and Bin this case, even if there were
(13:28):
not, you know, there isthis alternative wib proceeding in there ours.
There is certainly the President for theSupreme Court deciding cases on two different grounds
simultaneously. That's not you know that'snot 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. Thougheven that, I would have preferred that
(13:50):
they be a bit clear on exactlywhat they're doing. But it does seem
to me in document participants in thecase and what seems likely to happen that
the case. The practical implication isthis case will be back in federal district
court. It's not going to staycourt, and once back in federal district
court, it will be at thevery least very difficult for Texas to try
(14:11):
to once again pull off the uh, you know, the Shenanigan of trying
to get it dismissed on the groundsthat there is no you know that there
is no proper jurisdiction. Another questionfor you, professor, do you think
that when the case goes back tothe lower courts they will rule in favor
of Texas and say that it isnot self executing? The Supreme Court has
(14:33):
said that you don't need to ruleon self execution because here you can bring
the case perhaps even in federal courton the even without it being self executing,
because you can in effect use thisTexas cause of action to bring a
federal constitutional claim. Uh. Therefore, you know, the District court and
the Fifth Circuit presumably would not needto rule on self execution. In last,
(14:58):
Texas tries to find in some wayto nonetheless try to get this case
out of federal court. And itis a little bit screwy because it's not
completely clear that this case could haveunder the reason of the Federal Supreme Court
just now. It's not completely clearthat this case could have been filed in
federal district court to begin with.However, the Texas has now put it
(15:22):
into federal court and it looks likeit's not going to be kicked back out
to state court. And now thatit 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 afederal substantive claim, the takings cause claim.
So I think it's hard to beone hundred percent sure about this because
(15:43):
of some of the ambiguities in theSupreme Court decision, But I think what
will likely happen is the District Courtwill rule on the substance of the claim,
that is, whether or not thisflooding was a valuation of the takings
clause. That might then be subjectto an appeal to the Fifth Circuit.
But it will be difficult or impossibleprobably for Texas to try to just get
(16:04):
this case kicked out on procedural groundsagain, because you know, it is
going to be back in the districtin the federal District Court, and Texas
essentially, you know, got outof a worse defeat in the Federal Supreme
Court by conceding that you can filethis case under a Texas cause of action.
Uh. And uh, you know, the Federal District Court at this
(16:26):
point at least presumably has jurisdiction overthat Texas cause of action. UH.
So it will not be easy forTexas to weasel out of this, but
it's possible. There's some procedural angleI'm somehow missing here, but my expectation
at this point is that the mostlikely scenario is the case will go to
the merits, the district Court willhave to decide whether there was a taking
(16:48):
or not, and then the FifthCircuit could potentially be reviewed out to termination.
Thank you for listening to this episodeof SCO Discussed. Discussed is a
project of the Federalist Society, notfor profit educational organization of conservative and libertarian
law students, law professors, andlawyers, founded upon the principles that the
state exists to preserve freedom, thatthe separation of governmental power is essential to
(17:11):
our constitution, and that it isemphatically the province and duty of the judiciary
to say what the law is,not what it should be. Don't forget
to subscribe to our podcast series includescotuscasts and practice group podcasts on iTunes or
Google Play. For an archive ofpast podcasts, as well as audio and
video of past Federalist Society events,please visit our website at fedsock dot org
(17:34):
slash multimedia. That's feed sooc dotorg slash multimedia. This has been a
FEDSOC audio production.
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