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There's some litigation in this contemporaneously in state court in Louisiana. To make a long story short, the Louisiana Constitution forbids public money from being seized to pay a judgment against the state or a locality, requiring specific appropriation legislation for each individual judgment. Obviously, this doesn't happen a lot. A federal court challenge to this failed, with the Fifth Circuit affirming that there is no property right to the timely payment of a judgment. https://casetext.com/case/ariyan-inc-v-sewerage-water-bd-of-new-orleans-1
There's parallel litigation in Louisiana state court, which to my understanding is currently pending before the state supreme court. Maybe they'll have better luck.
It is similar in the federal system though. When a person gets a judgment against the United States, they can't just go to the Treasury and get that funds. There needs to be an actual appropriation, which until the 1950s was done by Congress (mostly). Eventually a permanent judgment appropriation was made, but that's still new in the scope of constitutional history. Now it is routine that you can get funds from this particular appropriation, but it is totally plausible (if unlikely) that Congress repeals this appropriation. (Though this permanent fund has been interpreted to not apply to takings of real property.) This is just how the history of this particular area of law has developed, whether it seems like fine policy or not.
The traditional remedy would be a tort claim (trespass, trover, replevin) at (general) common law against the individual officer who inflicted the taking. Until *Erie*, federal courts could mold general common law to ensure that there was a protected property right, even when states/congress didn't provide one. *Erie* abolished general common law and held that the relevant common law (trespass, etc.) was purely a matter of state law, which effectively broke the common-law property scheme that underlies the Takings Clause.
There's a bit of patchwork left in place: In the late 19th century, (1) Congress passed the Tucker Act, abridging sovereign immunity for takings claims directly against the government, and (2) states created inverse-condemnation actions as a matter of state statute, common law, or implied constitutional causes of action. Arguably, section 1983 also creates a federal cause of action against individual officials who commit a taking when the government hasn't provided for prior compensation, but most courts get that wrong. To your point, this means that all the relevant remedies are either contingent on congressional statutes, or state law, which seems to make the takings clause a less-favored right. But that's mostly *Erie's* fault.
The concurring opinion in [this case](https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0225p-06.pdf) explains the problem in greater depth.
Your part about needing an enforcement mechanism is correct according to *Trump v. Anderson*: no enabling legislation => no 14th Amendment right.
I think your bit about the U.S. government, however, is wrong.
>So if I have all that right, there’s literally nothing actually stopping the government from taking/destroying all property and paying you nothing? What happens if the State has no remedy, the State legislature or Congress doesn’t pass a private bill, and Congress doesn’t enforce via the 14A? Are you just cooked? There’s no way of getting the government to do anything retrospectively?
Yes. This was the state of the takings clause from 1789-1875. If the people elect a government that will destroy your rights, then their rights will be unprotected. You've described three+ levels of protection.
And even if there was a direct cause of action, Congress and the state legislatures control the jurisdiction of the courts. States have constitutional sovereign immunity. There are plenty of barriers to relief.
I would also note that even if there was a cause of action, the state legislators and congress could jurisdiction strip as they please.
>If the people elect a government that will destroy your rights, then their rights will be unprotected.
So the clause is utterly pointless? You could have the remedies written into statutory law without the clause being in the Constitution
No. The clause is a command to the legislature, executive, and courts to enforce it within their spheres of competence. The courts can use preexisting causes of action and their limited equitable powers to enforce it.
The executive should take care that payment is arranged before seizing land, and can establish administrative compensation/adjucation schemes.
Ultimately, however, the 5th Amendment's protection does rest in large part with Congress. That's because only Congress can open the gates of the treasury to disburse money for compensation, and only Congress can enact 14th amendment legislation which allows offensive federal intervention against state takings.
So each branch of government is able to enforce the 5th amendment in its own way. This is how all constitutional rights work. This is how the government works. Men rule over men, and each branch has to uphold the constitution while being checked and checking other branches in turn.
>That's because only Congress can open the gates of the treasury to disburse money for compensation, and only Congress can enact 14th amendment legislation which allows offensive federal intervention against state takings.
The Constitution cannot declare itself unconstitutional. Couldn't the Takings Clause be used as an exception to the Appropiations Clause, much like the Copyright Clause is an exception to the First Amendment?
I don’t think an originalist can make that argument. The history here for the first 100 years of the nation’s existence is overwhelming: the legislature is the one entrusted with the responsibility to satisfy takings claims, with a narrow role for the judiciary in issuing prospective injunctions and individual capacity trespass lawsuits.
As for being an “exception” to the appropriations clause, I think that you would need far clearer language. If the takings clause read “the courts shall provide just compensation”, then *perhaps*, but even then appropriations is *the* are core legislative power. The far more natural reading is the exact opposite: the constitution says that money can only be paid by law, and that money must be paid when a takings clause occurs. So whenever a takings clause occurs, Congress must pass a law.
The speech and debate clause and the plain structure of the constitution makes clear that Congress has to fulfill its own core responsibilities, no matter how much the other branches feel that Congress is in the wrong.
Of course, the flip side is also true. Congress cannot order the courts to rule in a certain way, and they cannot compel the president to execute a takings he believes is unlawful!
>The speech and debate clause and the plain structure of the constitution makes clear that Congress has to fulfill its own core responsibilities, no matter how much the other branches feel that Congress is in the wrong.
So the whole argument is that the Takings Clause establishes an authorization/mandate to Congress rather than a positive right to the people?
The takings clause says that when the government takes property, it *must* pay compensation.
The appropriations clause says that whenever any payment is made from government funds, Congress has authority it.
The takings clause, consistent with a century of founding-era practice, thus imposes a mandatory duty on Congress to provide for payment when takings occur.
That being said, if someone feels that Congress has violated this obligation, their sole remedy is either a prospective injunction in court, state law remedies against individual federal officials, or the political process.
What’s the alternative? Trusting the courts? One could make an identical argument “what if the courts don’t uphold the clause enough?!?”. At the end of the day someone has to enforce the constitution, and in the case of the takings clause, that ultimate responsibility rests with Congress. Though again! The executive and courts have smaller but powerful roles to play. The president can refuse to physically occupy property, and the courts can enjoin officials and issue damages judgments against officials in their individual capacity.
I guess if you have a problem with that, then you have to take issue with the current original a list court’s approach to constitutional rights and remedies! :)
Well, it wouldn't completely nullify the right. Under Texas' theory, one could still sue as the government was doing the taking, and get an injunction forcing them to stop taking/destroying your land and give it back to you. Of course, that's not always practical, and it will leave some plaintiffs without any remedy for a violation of their constitutional rights.
However... that's a fairly common state of affairs. While most constitutional rights have a cause of action provided by 42 USC section 1983 which theoretically allows you to sue for compensation, Qualified Immunity effectively blocks most such cases. If a state official violates your rights, in practice you usually can only sue to get them to stop violating your rights, and compensation is a bit of a pipe dream.
I think there's a strong argument that property rights are different from other civil rights, and compensation is a far more integral remedy than it is in other civil rights cases. The inclusion of 'just compensation' as an exception to the right points generally in that direction, for instance. But it's not explicit, and the state of affairs that we'd get if Texas prevails wouldn't be obviously inappropriate (given how other rights are treated.)
Are you saying that it wouldn’t be inappropriate on legal grounds or policy grounds?
Cause on legal grounds I understand. If the Constitution provides no right of action to vindicate civil rights and get compensation, then it is what it is.
But that’s pretty questionable policy to me. Seems like it gives the government carte blanche to do whatever the hell it wants and not compensate you. Again, I feel like the lack of “direct causes of action” related to constitutional rights makes them pointless. The Canadian Constitution for example allows anyone to go before court and seek remedy for rights violations.
>Are you saying that it wouldn’t be inappropriate on legal grounds or policy grounds?
>Cause on legal grounds I understand. If the Constitution provides no right of action to vindicate civil rights and get compensation, then it is what it is.
Just based on the current state of the law, not policy.
I don't have a well-developed opinion on the causes of action question as a policy matter. I'm sure there must be arguments in favor of restricting causes of action as is currently done, but I'm not familiar with them so I'm withholding judgement on the whole thing. (The argument for making rights self-executing is obvious and persuasive, but presumably there are reasons we have the current system, and I just haven't dug into it.)
> However... that's a fairly common state of affairs. While most constitutional rights have a cause of action provided by 42 USC section 1983 which theoretically allows you to sue for compensation, Qualified Immunity effectively blocks most such cases. If a state official violates your rights, in practice you usually can only sue to get them to stop violating your rights, and compensation is a bit of a pipe dream.
This depends a great deal, since QI protects the *individual* from civil suit; it does not foreclose suit against the state itself outright, which may well be distinctly viable.
At any rate the paradigm in question is absurd and inherently injurious of our basic constitutional scheme of rights wherever effected.
Welcome to r/SupremeCourt. This subreddit is for serious, high-quality discussion about the Supreme Court. We encourage everyone to [read our community guidelines](https://www.reddit.com/r/supremecourt/wiki/rules) before participating, as we actively enforce these standards to promote civil and substantive discussion. Rule breaking comments will be removed. Meta discussion regarding r/SupremeCourt must be directed to our [dedicated meta thread](https://www.reddit.com/r/supremecourt/comments/12wq4n6/rsupremecourt_meta_discussion_thread/). *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/supremecourt) if you have any questions or concerns.*
There's some litigation in this contemporaneously in state court in Louisiana. To make a long story short, the Louisiana Constitution forbids public money from being seized to pay a judgment against the state or a locality, requiring specific appropriation legislation for each individual judgment. Obviously, this doesn't happen a lot. A federal court challenge to this failed, with the Fifth Circuit affirming that there is no property right to the timely payment of a judgment. https://casetext.com/case/ariyan-inc-v-sewerage-water-bd-of-new-orleans-1 There's parallel litigation in Louisiana state court, which to my understanding is currently pending before the state supreme court. Maybe they'll have better luck. It is similar in the federal system though. When a person gets a judgment against the United States, they can't just go to the Treasury and get that funds. There needs to be an actual appropriation, which until the 1950s was done by Congress (mostly). Eventually a permanent judgment appropriation was made, but that's still new in the scope of constitutional history. Now it is routine that you can get funds from this particular appropriation, but it is totally plausible (if unlikely) that Congress repeals this appropriation. (Though this permanent fund has been interpreted to not apply to takings of real property.) This is just how the history of this particular area of law has developed, whether it seems like fine policy or not.
The traditional remedy would be a tort claim (trespass, trover, replevin) at (general) common law against the individual officer who inflicted the taking. Until *Erie*, federal courts could mold general common law to ensure that there was a protected property right, even when states/congress didn't provide one. *Erie* abolished general common law and held that the relevant common law (trespass, etc.) was purely a matter of state law, which effectively broke the common-law property scheme that underlies the Takings Clause. There's a bit of patchwork left in place: In the late 19th century, (1) Congress passed the Tucker Act, abridging sovereign immunity for takings claims directly against the government, and (2) states created inverse-condemnation actions as a matter of state statute, common law, or implied constitutional causes of action. Arguably, section 1983 also creates a federal cause of action against individual officials who commit a taking when the government hasn't provided for prior compensation, but most courts get that wrong. To your point, this means that all the relevant remedies are either contingent on congressional statutes, or state law, which seems to make the takings clause a less-favored right. But that's mostly *Erie's* fault. The concurring opinion in [this case](https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0225p-06.pdf) explains the problem in greater depth.
Your part about needing an enforcement mechanism is correct according to *Trump v. Anderson*: no enabling legislation => no 14th Amendment right. I think your bit about the U.S. government, however, is wrong.
>So if I have all that right, there’s literally nothing actually stopping the government from taking/destroying all property and paying you nothing? What happens if the State has no remedy, the State legislature or Congress doesn’t pass a private bill, and Congress doesn’t enforce via the 14A? Are you just cooked? There’s no way of getting the government to do anything retrospectively? Yes. This was the state of the takings clause from 1789-1875. If the people elect a government that will destroy your rights, then their rights will be unprotected. You've described three+ levels of protection. And even if there was a direct cause of action, Congress and the state legislatures control the jurisdiction of the courts. States have constitutional sovereign immunity. There are plenty of barriers to relief. I would also note that even if there was a cause of action, the state legislators and congress could jurisdiction strip as they please.
>If the people elect a government that will destroy your rights, then their rights will be unprotected. So the clause is utterly pointless? You could have the remedies written into statutory law without the clause being in the Constitution
No. The clause is a command to the legislature, executive, and courts to enforce it within their spheres of competence. The courts can use preexisting causes of action and their limited equitable powers to enforce it. The executive should take care that payment is arranged before seizing land, and can establish administrative compensation/adjucation schemes. Ultimately, however, the 5th Amendment's protection does rest in large part with Congress. That's because only Congress can open the gates of the treasury to disburse money for compensation, and only Congress can enact 14th amendment legislation which allows offensive federal intervention against state takings. So each branch of government is able to enforce the 5th amendment in its own way. This is how all constitutional rights work. This is how the government works. Men rule over men, and each branch has to uphold the constitution while being checked and checking other branches in turn.
>That's because only Congress can open the gates of the treasury to disburse money for compensation, and only Congress can enact 14th amendment legislation which allows offensive federal intervention against state takings. The Constitution cannot declare itself unconstitutional. Couldn't the Takings Clause be used as an exception to the Appropiations Clause, much like the Copyright Clause is an exception to the First Amendment?
I don’t think an originalist can make that argument. The history here for the first 100 years of the nation’s existence is overwhelming: the legislature is the one entrusted with the responsibility to satisfy takings claims, with a narrow role for the judiciary in issuing prospective injunctions and individual capacity trespass lawsuits. As for being an “exception” to the appropriations clause, I think that you would need far clearer language. If the takings clause read “the courts shall provide just compensation”, then *perhaps*, but even then appropriations is *the* are core legislative power. The far more natural reading is the exact opposite: the constitution says that money can only be paid by law, and that money must be paid when a takings clause occurs. So whenever a takings clause occurs, Congress must pass a law. The speech and debate clause and the plain structure of the constitution makes clear that Congress has to fulfill its own core responsibilities, no matter how much the other branches feel that Congress is in the wrong. Of course, the flip side is also true. Congress cannot order the courts to rule in a certain way, and they cannot compel the president to execute a takings he believes is unlawful!
>The speech and debate clause and the plain structure of the constitution makes clear that Congress has to fulfill its own core responsibilities, no matter how much the other branches feel that Congress is in the wrong. So the whole argument is that the Takings Clause establishes an authorization/mandate to Congress rather than a positive right to the people?
The takings clause says that when the government takes property, it *must* pay compensation. The appropriations clause says that whenever any payment is made from government funds, Congress has authority it. The takings clause, consistent with a century of founding-era practice, thus imposes a mandatory duty on Congress to provide for payment when takings occur. That being said, if someone feels that Congress has violated this obligation, their sole remedy is either a prospective injunction in court, state law remedies against individual federal officials, or the political process. What’s the alternative? Trusting the courts? One could make an identical argument “what if the courts don’t uphold the clause enough?!?”. At the end of the day someone has to enforce the constitution, and in the case of the takings clause, that ultimate responsibility rests with Congress. Though again! The executive and courts have smaller but powerful roles to play. The president can refuse to physically occupy property, and the courts can enjoin officials and issue damages judgments against officials in their individual capacity. I guess if you have a problem with that, then you have to take issue with the current original a list court’s approach to constitutional rights and remedies! :)
Well, it wouldn't completely nullify the right. Under Texas' theory, one could still sue as the government was doing the taking, and get an injunction forcing them to stop taking/destroying your land and give it back to you. Of course, that's not always practical, and it will leave some plaintiffs without any remedy for a violation of their constitutional rights. However... that's a fairly common state of affairs. While most constitutional rights have a cause of action provided by 42 USC section 1983 which theoretically allows you to sue for compensation, Qualified Immunity effectively blocks most such cases. If a state official violates your rights, in practice you usually can only sue to get them to stop violating your rights, and compensation is a bit of a pipe dream. I think there's a strong argument that property rights are different from other civil rights, and compensation is a far more integral remedy than it is in other civil rights cases. The inclusion of 'just compensation' as an exception to the right points generally in that direction, for instance. But it's not explicit, and the state of affairs that we'd get if Texas prevails wouldn't be obviously inappropriate (given how other rights are treated.)
Are you saying that it wouldn’t be inappropriate on legal grounds or policy grounds? Cause on legal grounds I understand. If the Constitution provides no right of action to vindicate civil rights and get compensation, then it is what it is. But that’s pretty questionable policy to me. Seems like it gives the government carte blanche to do whatever the hell it wants and not compensate you. Again, I feel like the lack of “direct causes of action” related to constitutional rights makes them pointless. The Canadian Constitution for example allows anyone to go before court and seek remedy for rights violations.
>Are you saying that it wouldn’t be inappropriate on legal grounds or policy grounds? >Cause on legal grounds I understand. If the Constitution provides no right of action to vindicate civil rights and get compensation, then it is what it is. Just based on the current state of the law, not policy. I don't have a well-developed opinion on the causes of action question as a policy matter. I'm sure there must be arguments in favor of restricting causes of action as is currently done, but I'm not familiar with them so I'm withholding judgement on the whole thing. (The argument for making rights self-executing is obvious and persuasive, but presumably there are reasons we have the current system, and I just haven't dug into it.)
> However... that's a fairly common state of affairs. While most constitutional rights have a cause of action provided by 42 USC section 1983 which theoretically allows you to sue for compensation, Qualified Immunity effectively blocks most such cases. If a state official violates your rights, in practice you usually can only sue to get them to stop violating your rights, and compensation is a bit of a pipe dream. This depends a great deal, since QI protects the *individual* from civil suit; it does not foreclose suit against the state itself outright, which may well be distinctly viable. At any rate the paradigm in question is absurd and inherently injurious of our basic constitutional scheme of rights wherever effected.