RICHARD DEVILLIER, ET AL., Petitioners, v. TEXAS, Respondent
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Elena Kagan, John G. Roberts, Jr., Ketanji Brown Jackson, Neil Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): Robert J. McNamara, Aaron L. Nielson, Edwin S. Kneedler

John G. Roberts, Jr.: We'll hear argument next in Case 22- 913, Devillier versus Texas.

Mr. McNamara.

Robert J. McNamara: Mr. Chief Justice, and may it please the Court:  The Question Presented in this case is resolved by the text of the Fifth Amendment, which, unlike any other provision of the Constitution, imposes on the government a  --an explicit duty to pay money.

It's also answered by this Court's decision in First English, which holds that the just compensation remedy is mandatory and that the Fifth Amendment itself furnishes a basis on which a court can award just compensation in an inverse condemnation case.

And this right of property owners to sue in inverse condemnation to obtain just compensation for an alleged taking is at the heart of modern American takings law.

It's at the heart of inverse condemnation claims filed against state and local governments nationwide. And it's also at the heart of every takings claim filed against the federal government under the Tucker Act.

The Tucker Act provides no cause of action, no substantive entitlement to a remedy. The cause of action, the substantive entitlement to a remedy, in every Tucker Act takings case is the self- executing Fifth Amendment, the same cause of action recognized in First English, the same cause of action pled here.

To reject that cause of action now is to upend the way lower courts, both state and federal, understand the Takings Clause to work and also to abandon this Court's consistent explanations of that clause not just in First English but in more recent cases like Knick v.

Township of Scott. And there's no reason to make that kind of drastic change.

This Court has already recognized that money- mandating legal obligations logically come along with the right to file a lawsuit to enforce those obligations.

That's true as to statutes, which is what this Court held in Maine Community Health Options.

It should be at least as true as to  the Constitution, and this Court's precedents consistently teach that it is.

I welcome the Court's questions.

Clarence Thomas: In your reply brief, you say that the 19th Century federal courts were faced with a bedrock property right and no way to enforce it directly.

Doesn't that seem to be at odds  -- the fact that the courts there had to resort to extra- constitutional causes of action, isn't that at odds with your argument now?

Robert J. McNamara: I don't think so, Your Honor, because the primary problem facing federal courts in the early part of the 19th Century was a lack of jurisdiction.

And I think the question of jurisdiction is just conceptually distinct from the question of whether there's a cause of action, whether there's a right to a remedy.

Congress could tomorrow amend Section 1331 to reimpose an amount -in- controversy limit, and if it did that, that would prevent a number of people from bringing Ex parte Young actions in federal court.

Those claims wouldn't cease to exist.

Congress would just have eliminated the jurisdiction over them.

And so I think there's a difference between jurisdictional limits which limited  takings claims and even pleading requirements like the limits to the forms of action, which also limited plaintiffs' abilities to bring  certain kinds of claims, and the core Question Presented here, which is just whether there is an entitlement to relief.

There's only one modern form of action, which just takes the shape of saying, I'm entitled to this remedy for that reason. The remedy is just compensation.

The reason is the Fifth Amendment as applied through the Fourteenth.

And once the jurisdictional problems and the pleading problems are removed, as they have been in this case, the only question remains whether the Fifth Amendment mandates compensation, whether it mandates that remedy, which this Court has already answered. First English says that the just compensation remedy is mandatory. And I think contrasting the  -- the arguments of the other side with the rule adopted by the California Supreme Court in Agins is actually a useful illustration here.

The  California Supreme Court's decision in Agins said, we as a common law court don't want to recognize a claim for just compensation in a regulatory takings case.

We think that intrudes on the legislature's prerogative.

We don't  recognize that cause of action.

And First English says that doesn't matter.

The cause of action, the entitlement to relief, flows directly from the Fifth Amendment. So too here.

The complaint here pleads a c ause of action directly under the Fifth Amendment  --

Amy Coney Barrett: Counsel  --

Robert J. McNamara: -- that says our property was taken and the Fifth Amendment -- yes, Your Honor?

Amy Coney Barrett: Counsel, I agree that jurisdiction and a cause of action are distinct, but it's a little bit hard to see how in 1791  -- I mean, I think your argument is, when the Fifth Amendment was ratified, those who ratified it had to see the Fifth Amendment as itself supplying the cause of action because this was the crucial way to vitiate the takings right, the right to just compensation.

But Congress didn't provide for federal question jurisdiction until 1875, so that kind of languished on the vine for a pretty long time if you're right that the founding generation or the  -- you know, the ratifyin g generation in 1791 viewed it that way.

Moreover, you know, the historical evidence of private bills runs contrary to your argument because, yes, there was a right to just compensation, but we have all of this time, throughout the 19th Century, of Congress enacting private bills to give just compensation.

And I think you have to contend with that because, I mean, I get that this is against Texas, against the state, but if the Fourteenth Amendment incorporated the Fifth Amendment as it was, there's kind of a mountain of historical evidence, you know, that you've got to contend with.

Robert J. McNamara: So I -- I don't think that mountain do es quite the work that Texas needs it to, Your Honor.

And I think one problem here is the difficulty in mapping the modern con ception of cause of action onto 1791 visions of the court.

I think, if you asked a lawyer in 1791 whether the Fifth Amendment  contained a cause of action, they probably wouldn't understand the question.

But, if you asked them can a property owner sue to enforce just compensation, the  answer absolutely would have been yes.

It would have been a suit in trespass.

It would perhaps have been a suit in ejectment.

But there was an understanding at the framing that this was an enforceable right, and if you --

Neil Gorsuch: Well, that -- that establishes at most, it seems to me, that the Fifth Amendment envisioned some remedial mechanism would be available.

And the common law trespass, as you point out, might have been it, or conversion might have been it.

It -- it doesn't necessarily mean that there is itself an independent cause of action under the Fifth Amendment.

Robert J. McNamara: I think it does, Your Honor, once the forms --

Neil Gorsuch: Why?  You've just conceded that the cause of action that -- that the Framers would have understood would have been in trespass.

Robert J. McNamara: Well, Your Honor, I think, in -- in modern terms, what the Court means when it says "cause of action"  --

Neil Gorsuch: Well, no.

But we're talking about the original meaning, and you're asking us to appeal to the original meaning and say they would have understood there would have been a cause of action.

Perhaps, but what would that cause of action look like?

Robert J. McNamara: I think they would have understood that there was an entitlement to a remedy.

Neil Gorsuch: Some remedy?

Robert J. McNamara: An entitlement to just compensation as a remedy.

Neil Gorsuch: Some -- some way to get that?

Robert J. McNamara: Yes, and I think  --

Neil Gorsuch: Fair enough.

That doesn't necessarily mean there's a federal cause of action.

It could mean it happens under state 25   -- common law, right?

Robert J. McNamara: Well, Your Honor, two

Neil Gorsuch: I mean, you -- you would admit that a state common law cause of action did and could fully vindicate the Fifth Amendment?

Robert J. McNamara: Yes, Your Honor, I think there could be a state common law action that vindicated the First Amendment, but I also think --

Neil Gorsuch: Fifth.

Fair enough.

Robert J. McNamara: Yes, Your Honor, or  -- or the First.

Neil Gorsuch: And that that would -- that would be enough.

No -- nothing more would be required.

Robert J. McNamara: Well --

Neil Gorsuch: And, in fact, that's how it operated for a long time.

Robert J. McNamara: Well, certainly, Your Honor, if compensation is provided through any mechanism, there's no longer a Fifth Amendment injury to be remedied.

Neil Gorsuch: Ah.

Okay.

I understand that argument.

That's not the argument you're -- you're pressing, though.

Robert J. McNamara: That's because, here, compensation hasn't been paid.

The plaintiffs  in this case continue to suffer the ongoing Fifth Amendment injury.

Neil Gorsuch: Well, maybe that's because you  -- you -- you -- you allowed this case to be removed, which I -- and -- and, you know, I'm -- I'm surprised you didn't oppose removal on that ground and said there's no federal question that we need to resolve here because it's really a state common law cause of action we're pursuing.

That would have been one option.

Or maybe in federal court you might have said we want a declaratory judgment, which everyone concedes you can get under the Fifth Amendment, and take pendent jurisdiction over our state common law cause of action, which would adequately vindicate our Fifth Amendment rights.

You didn't pursue either of those courses here.

Robert J. McNamara: So two responses, Your Honor.

One, I don't think there was a good- faith grounds to oppose Texas's removal because what the complaint says on its face is we are entitled to just compensation under the Fifth Amendment.

Neil Gorsuch: Well, but it  -- it then pleads state causes of action to do so.

Robert J. McNamara: No, Your Honor.

It  -- it pleads a claim directly under the Fifth Amendment.

Neil Gorsuch: Well, maybe that's another problem you face is it -- if  you had an adequate common law  --do you dispute that Texas has an adequate common law remedy to  -- for -- for your problem?

Robert J. McNamara: I do, Your Honor.

And this is actually an important point.

That --

Neil Gorsuch: Is that argument in your brief, that -- that the -- that the common law of Texas or state law has no mechanism to enforce the Fifth Amendment?

Robert J. McNamara: Well, Your Honor, Texas asserts  --

Neil Gorsuch: If it did, I'd -- that one I'd take seriously, but I didn't see it.

Robert J. McNamara: So Texas asserts, Your Honor, that there is a Texas common law mechanism to vindicate the Fifth Amendment, but  there is no Texas decision saying we sitting as a common law court invoke our common law powers to create a cause of action.

Neil Gorsuch: No trespass, no conversion?

Robert J. McNamara: Texas hears inverse condemnation claims arising under the Fifth Amendment.

That's what  the Texas Supreme Court said most recently in City of Baytown v. Schrock, and it cites the Fifth Amendment. It doesn't invoke its common law powers.

Neil Gorsuch: Fair enough.

I get all of that now.

All right.

That's clarifying. But you  -- you --the -- the nature of the argument before us isn't that Texas lacks a common law cause of action.

It's whether or not Texas has such a thing, we're entitled to another remedy under federal law.

Robert J. McNamara: I  -- I don't think that's right, Your Honor.

What the Fifth Circuit said is that the complaint that alleges an entitlement to just compensation flowing from the Fifth Amendment doesn't state a claim, that that claim is dead.

Neil Gorsuch: Let  --let -- let  -- let's suppose we -- it did create a cause of action.

Would  --would it also waive sovereign immunity?  And what would the statute of limitations be?

Robert J. McNamara: It wouldn't necessarily waive sovereign immunity, Your Honor.

I think that's a distinct question.

And the statute of limitations would be the statute of limitations that is applied by lower courts when people actually bring these claims.

There's a robust Court of Federal Claims jurisprudence, federal district courts hear claims arising under the Fifth Amendment, sometimes looking to state law to set the statute of limitations.

Neil Gorsuch: Ah, they look to state law, don't they, yeah?

Robert J. McNamara: But the claim itself, Your Honor, comes from the Fifth Amendment not just in Texas but in states nationwide.

And I think this is an important point. Take Oregon, for example.

Oregon signed on to the state's amicus brief in support of Texas, but the reason that Oregon pays just  compensation for takings under the Fifth Amendment is the Oregon courts, citing First English, have said it must pay just compensation.

And so answering the Question Presented --

Amy Coney Barrett: If we don't read First English the way you do  --I mean, I think that footnote's pretty difficult to decipher  -- do you lose?

Robert J. McNamara: No, Your Honor.

I  --I don't think it's just the footnote in First English.

I think it's the broader holding that the remedy is required.

But I think there's no dispute here that there is an entitlement to relief.

And, certainly, by the time of the ratification of the Fourteenth Amendment, courts across the country had converged on how that kind of entitlement would be enforced.

And it's enforced by a lawsuit directly against the entity that took the proper ty that takes the form of saying, you have this duty to provide just compensation, you have not fulfilled it, and I'd like the court to order you to fulfill it.

Sonia Sotomayor: Can I have just a small point of information?  Your case was dismissed in federal court.

Did you ask for a remand on your claims under the Texas Constitution?

Robert J. McNamara: No, Your Honor.

The district court is keeping pendent jurisdiction over the claims under the Texas cause.

Sonia Sotomayor: So you  -- you have a pending suit on the state law claim?

Robert J. McNamara: Yes, Your Honor, but there is a dispute about the scope of the takings law that governs that question.

Texas has taken the position in the lower courts that the Texas Constitution has a narrower definition of what counts as a taking than the federal courts.

Sonia Sotomayor: Well, then First English comes in too because First English was about a state court claim and when it started, whether a temporary claim was a taking or not, and we said yes, it's a taking, and so the state court had to pay for that taking.

How is it different than First English in that respect?

Robert J. McNamara: I  -- I don't think it's different from First English, Your Honor, except  that, here, it was removed into federal court and then the Fifth Amendment aspect of the case was dismissed on the merits.

Sonia Sotomayor: Oh, I  -- I --I don't disagree with you, but First English is about what the substantive law of Texas is and what Texas has to pay.

And so that issue should be resolved even in the district court, correct?

Robert J. McNamara: I  -- I don't think so, Your Honor, because the backstop in First English is the Fifth Amendment that -- that says that the met -- the just compensation --

Sonia Sotomayor: No, the backstop in the Fifth  --yes, it's the Fifth Amendment that provides the substantive law, but not necess arily -- we didn't address whether it provides a cause of action.

Robert J. McNamara: I  -- I think the Court did, Your Honor.

The United States' amicus brief --

Sonia Sotomayor: All right.

We're -- we're going to -- we're going to go into --

Ketanji Brown Jackson: Can I just ask -- I  -- I mean, this is similar to what Justice Sotomayor was just getting into.

Are you saying  that we don't have three separate concepts, right, remedy, and cause of action?  I thought those were three different things, and perhaps  First English only covered two of them?

Robert J. McNamara: I  -- I'm not sure they're distinct concepts, Your Honor.

I think the simplest way to understand cause of action is an entitlement to a particular remedy, which is why it's coherent to say someone might have a cause of action for an injunction.

Ketanji Brown Jackson: I thought it had to do with the forum, that you have a cause of action that is recognized in the judicial  forum as opposed to, say, going to the legislature through  -- through private bills.

Robert J. McNamara: Well, Your Honor, I  -- I think, to the extent that's the definition of "cause of action," we would have a cause of action under the clear import of the history that the  --

Ketanji Brown Jackson: Not  --not the history.

I guess I'm just trying to understand, is there  --does it make sense to think about the Fifth Amendment as providing the right and  the remedy but not speaking to where you're going to get that remedy from or what is the enforcement mechanism?  That's how I sort of am conceptualizing this, and -- and I think we differ about that, so I'd like to hear your opinion on it.

Robert J. McNamara: I  -- I'm not sure that's a correct reading of the Fifth Amendment, Your Honor, in part because I think that reading -- everyone agrees there are some judicial remedies for the Fifth Amendment.

As I understand my friend's argument, we'd be entitled to sue for injunctive relief or for ejectment in the absence of a -- a path to a Fifth Amendment compensation remedy.

So everyone agrees there's some judicial remedy, and I think the form of that judicial remedy depends on the scope of the government's obligation. There are two visions of the Fifth Amendment.

One is that the Fifth Amendment just provides a precondition.

The government is required to pay and it can be enjoined from  taking the property if it doesn't pay.

The other division that's adopted in First English that's reiterated in Knick is that the Fifth Amendment creates an obligation to pay just compensation.

And if that's the ongoing obligation, the government has taken property, it owes just compensation today, will owe just compensation tomorrow, courts are empowered to cure that ongoing obligation.

It's not a question of damages for a past violation.

It's a question of the government's obligation as it stands in court today.

Amy Coney Barrett: Mr. McNamara, can I go back to Justice Sotomayor's question and just ask for a point of clarification?  I understood Texas law to provide a cause of action for vitiating the federal Fifth Amendment right.

I took your answer to Justice Sotomayor to be saying that Texas courts say -- you were talking about how Texas courts define a taking for purposes of the Texas Constitution.

So am I wrong in thinking that Texas allows you to bring a state cause of action for the federal Fifth Amendment claim?

Robert J. McNamara: I  -- I'm not sure whether that's right to be honest, Your Honor. And I think two things flow from this.

One, if it's true that there is a Texas common law cause of action under which we could have  --we can vindicate our Fifth Amendment rights, then the Fifth Circuit still has to be reversed because it held that that substantive claim should be dismissed on the merits.

Amy Coney Barrett: Okay.

Well, let me just  --just  --it's important for me to be able to understand this procedural point.

Does Texas have  --provide a state cause of action to vitiate the state takings right from the Texas Constitution?

Robert J. McNamara: Yes, Your Honor.

Amy Coney Barrett: Okay.

It seems to me then it can't discriminate against the federal claim anyway.

Robert J. McNamara: I  -- I think that's true, Your Honor, but Texas doesn't  -- Texas isn't trying to discriminate against the  -- this federal claim.

What Texas says, like other state courts, is it's not doing  --it doesn't say we're doing common law analysis and creating a cause of action.

What Texas seems to be doing is constitutional analysis, just like the other  state courts that specifically cite First English and say:  Ah, there is a cause of  caution here.

I'm not familiar with any state case saying we are using our powers as a common law court to create a cause of action to vindicate the Fifth Amendment.

What they say is we're looking at the Fifth Amendment.

We see it creates the obligation.

Frequently they cite First English directly and they say that's what gives rise to the cause of action.

And that, I think, is what's dangerous about the Question Presented here.

As  -- as I understand Texas's argument, the complaint we filed in state court was perfectly valid and could be adjudicated, and the Fifth Amendme nt could have been adjudicated in state court. Once it was removed, Texas moved to dismiss and sought an interlocutory appeal and has successfully extinguished that.

But my concern is that adopting Texas's arguments here tells all of these state courts that have pointed to First English and said this is the source of -- the Fifth Amendment is the source of the cause of action would look to a decision in this case adopting Texas's arguments and say:  Okay.

We were  wrong.

The Constitution does not, in fact, require a remedy.

There is no federal constitutional cause of action.

And that would eliminate the federal takings remedy in state courts across the nation.

Samuel A. Alito, Jr.: Mr. McDowell, the language of the Takings Clause is quite similar to the language of the Due Process Clause in the Fifth Amendment, which immediately precedes it. No person shall be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation.

So why should they be read differently with respect to the creation of a cause of action?

Robert J. McNamara: I don't think they have to be read differently, Your Honor.

I think, if  there's an ongoing due process violation, a plaintiff could bring an Ex  parte Young action. Ex parte Young was not a 1983 action.

It was --

Samuel A. Alito, Jr.: No, not an Ex parte Young, but a claim for damages?

Robert J. McNamara: Well, I -- I think that's the difference here, that we're not  seeking damages; we're seeking just compensation.

We're not saying there was a past completed violation of the Constitution and we want something to offset that.

We're saying the government has taken property, which gives rise to a present duty to pay just compensation, and we want the present obligation enforced, not a backwards- looking damages remedy concocted or created.

And I think that entitlement to just compensation is how the Framers would have understood the Fifth Amendment.

The alternative view, the idea that all you get are injunctions, I don't think squares with either the text or how contemporary commentators talked about the clause.

St. George Tucker and John Jay wrote about the Takings Clause in the context of the Army seizing horses and military supplies.

But,  if the Army is seizing horses, the Army's going to get the horses.

The understanding  would not have been that you could stop the Army in the moment from seizing your horses.

What St. George Tucker is writing about is the ongoing duty to provide  compensation for the horses, which is also how contemporary courts wrote about the just compensation requirement, even constrained as they were by the forms of action.

I -- I think a great example of this is the Massachusetts Supreme Court's decision in -- excuse me  --the Massachusetts Supreme Court's decision in evaluating an action br ought as a  --a writ of debt in Gedney v. Inhabitants of Tewksbury, where the justices -- the judges of the Massachusetts Supreme Court there said: This isn't the right forum.

This isn't an action in debt.

You can't state it using that form.

You have to go to a different forum to get your just compensation.

But, if that other forum denies you compensation, you can return here, in the statement of one of the judges, and ask for that remedy again, which will not probably be refused if --

Samuel A. Alito, Jr.: If the Fifth Amendment confers a right to sue for just compensation in and of itself, is that right unqualified?  And if it is not unqualified, what qualifications do you recognize?

Robert J. McNamara: Oh, I  -- I certainly don't think it's unqualified, Your Honor.

It --

Samuel A. Alito, Jr.: What qualifications do you recognize?

Robert J. McNamara: It  --it requires a court of competent jurisdiction, and so, certainly, Congress is free to channel jurisdiction however it likes.

Texas is similarly free to create courts of jurisdiction as it pleases.

But the underlying  --all we're saying is that there is an underlying entitlement to receive just compensation and that when that entitlement is denied, a court of competent jurisdiction can order that that just compensation be paid.

Samuel A. Alito, Jr.: Well, does it make sense to view the Fifth Amendment as providing a right to sue for compensation, but your ability to vindicate that right is totally dependent on Congress's discretionary choice to create lower federal courts and to give them jurisdiction to entertain such claims?  That sounds like a very weak right if that  -- if it's subject to limitation in that way.

Robert J. McNamara: I think the same could be said of the entire Bill of Rights, though, Your Honor.

The -- the entire stratum of federal constitutional rights depends on Congress to create lower federal courts, courts where these rights can be vindicated.

Once Congress does create those courts, and when a state defendant deliberately chooses to avail itself of those courts, the only question is whether that court can enforce the ongoing obligation to require the payment of just compensation.

And I think that's ultimately what distinguishes this case from the Court's Bivens cases, where Bivens cases are about the policy question of whether to create a remedy.

They don't engage in constitutional text, history, and tradition analysis, which is why Justice Rehnquist could dissent in cases like Carlson v. Green and Davis v. Passman and then, less than a  decade later, Chief Justice Rehnquist could write First English, because we're not talking about a damages remedy; we're talking about the  power of the federal courts to, when their jurisdiction is competently invoked and when the state has waived its sovereign immunity, require  the state to comply with its ongoing constitutional duty.

I think that matches both with the history, it matches with the tradition, and it matches particularly with the Fourteenth Amendment context itself.

It's worth remembering that when this Court incorporated the Fifth Amendment against the states in Chicago, Burlington  Quincy Railroad, it specifically incorporated the right to compensation, not the right not to have the property taken but the right to receive money, that the due process of law necessarily included as a matter of first principles -- Chicago, Burlington actually doesn't cite the Fifth Amendment -- but, as a matter of first principles, it includes the right to receive compensation for the property taken.

These -- these cases rarely appear in federal court, in part because, before Knick, no takings case could be filed ab initio, but also because, as the magistrate judge's opinion in this case points out, it's relatively rare for a state to choose to remove this federal claim  -- this federal right into a federal forum.

But, once it does so, once Texas has decided it wants the scope of our rights under the Fifth Amendment to be litigated in federal court, that can't change the scope of the claim we make.

What the Fifth Circuit opinion below says is that we cannot state a claim invoking our rights under the Fifth Amendment, full stop. If Texas is right that, in fact, we have that right as a matter of Texas common law, then the Fifth Circuit was wrong to say that we only have that right under Section 1983.

That counsels in favor of reversal.

But this Court has also squarely held and again repeated in Knick that the Fifth Amendment does furnish a basis on which a court can award just compensation.

In the mine run of cases, that's going to be a state court awarding just compensation.

But, when the state wishes to be in federal court, I don't think there's a good- faith basis for the plaintiff to say, I'm invoking my rights under the Fifth Amendment, I want the full scope of compensation that I'm entitled to under the Fifth Amendment, but I refuse to allow this claim that arises under my  rights under the Fifth Amendment to be in federal court.

It is the defendant's choice to have this feder al claim that turns on federal law heard in federal court.

That's the choice that Texas made, and that choice can't, on the merits, extinguish our Fifth Amendment remedy.

What Texas has effectively accomplished here by making the unusual decision to remove is that it's eliminated the Fifth Amendment question from this case and given itself what it believes -- I'm not conceding that they're right about Texas law -- but what it believes is a more favorable rule of Texas law.

But, if First English is right and the just compensation remedy is mandatory, then the just compensation remedy is mandatory, and Texas can't extinguish it through procedural maneuvers like removing this case to federal court.

The  -- a claim for just compensation simply takes the form of saying the government has taken a property interest and I  as the former owner am entitled to the fair market value of that property interest.

Ketanji Brown Jackson: Can I just be clear, are you arguing that through Texas's maneuvering that claim is no longer available to you?

Robert J. McNamara: Yes, Your Honor.

I think that's what Judge Oldham points out in his dissent below.

Ketanji Brown Jackson: I understand not in federal court, but are you claiming that Texas has prevented you from making this claim in state court?

Robert J. McNamara: Yes, Your Honor.

There -- there will be no remand in this case.

This case is staying in federal district court.

And as Judge Oldham correctly pointed out, the upshot of the panel opinion below is that this case will proceed without any federal takings claim in it because  --

Ketanji Brown Jackson: If you had sought remand and it went back to Texas court, are you saying that there wouldn't be the opportunity to make this claim in state court?  I'm just trying to understand if the claim is totally gone as  -- as a general matter here.

Robert J. McNamara: I  --so I  -- I think -- I see my light is on.

Thank you, Your Honor.

John G. Roberts, Jr.: No, go ahead.

Robert J. McNamara: So I think, Your Honor, first, I don't know that we would have had grounds to fight remand because the claim does invoke our entitlement under federal law.

But, if the case were remanded, I think the question in Texas state court would be exactly  the Question Presented here:  Are we entitled, without the 1983 vehicle, to invoke our rights under the Fifth Amendment?  Texas courts have said yes, we are entitled to invoke our rights under the Fifth Amendment.

But, again, they just cite the Fifth Amendment.

They're not invoking some special cause of action that they have created.

They, like other courts, look to the Constitution, to this Court's analysis of the Constitution, and say the Constitution provides the entitlement to just compensation, not, as far as I'm aware, an independent common law cause of action.

John G. Roberts, Jr.: Thank you, counsel.

Let's suppose you bring -- the state takes some action, you claim that as a taking, you bring that claim for just compensation.

In the state court, they decide yes, it was a  taking, and so the government owes you $3 million.

And the government says:  Wow, we didn't think it was worth that much.

Here, take it back.

And can they do that?

Robert J. McNamara: To  --to a point, Your Honor.

I think saying here take it back runs afoul of what Justice Brennan identified in his San Diego Gas  Electric dissent that ending the taking just creates an uncompensated temporary taking.

And that is why, as this Court noted in Knick, Justice Brennan's dissent became the law in First English, that just stopping the taking creates an uncompensated temporary taking.

Certainly, the state is within its rights to cease a taking if it wants to cease a taking, and it may be that evidence at trial shows Texas has chosen to cease the taking here,  but the question is and always based on the full factual record what property interest has Texas actually taken or has the defendant actually taken --

John G. Roberts, Jr.: So they can claim what we've taken is a temporary, you know,  right, so we owe you rent, that -- and that's just compensation?

Robert J. McNamara: Exactly, Your Honor. The  -- the defendant is always free to say this is  -- this is just a temporary easement or maybe this is a temporary partial easement.

CHIEF JUSTICE ROBERT S:  And they can say that after the fact?

Robert J. McNamara: I  -- I think --

John G. Roberts, Jr.: We took the whole thing, we found out we were taking more than we could -- we're biting off more than we could chew, and so we're going to give it back to you?

Robert J. McNamara: I  -- I think that would be a valid ground for going back to the district court and saying that the facts have changed. The way  --

John G. Roberts, Jr.: Okay.

Thank you.

Robert J. McNamara: Thank you, Your Honor.

John G. Roberts, Jr.: Justice Thomas?  Justice Alito?

Samuel A. Alito, Jr.: Well, suppose that going forward they find a way to divert the water so that it doesn't cause flooding in the  future.

Then what claim would you have?

Robert J. McNamara: I  -- I think that would just be a -- a claim for a temporary easement, Your Honor.

Ultimately, the property interest in this case would be some kind of flooding easement.

The trial court would have to decide whether it's a permanent easement, a partial easement, a temporary easement, and this is the kind of determination courts make in takings cases every day.

Samuel A. Alito, Jr.: Yeah, and if it's -- so, if it's completely eliminated going forward, your -- your property is not going to be flooded going forward, what would the remedy be?

Robert J. McNamara: The -- the remedy -- so, to the extent the Court found on the facts that Texas had taken a temporary easement, it would be the fair market value of that temporary easement.

Samuel A. Alito, Jr.: Would that be different from damages?

Robert J. McNamara: Yes, Your Honor, and  --

Samuel A. Alito, Jr.: In what way would it be different from damages?

Robert J. McNamara: So damages are an attempt to rectify a wrongful act.

And so a plaintiff seeking damages can seek consequential damages.

I would have had -- if you had paid me on time, I would have had this business opportunity that I had to forego.

Samuel A. Alito, Jr.: Yeah, I understand that.

So how would you put a value on the temporary taking?

Robert J. McNamara: It would be  -- generally speaking, there is testimony from dueling appraisers who talk about at fair market value what rent someone would pay for  -- for that kind of easement, what a -- a willing seller would have sold that kind of easement for, but it's limited to the fair market value. It's limited to what the government took as distinct from what the property owner may have lost.

Samuel A. Alito, Jr.: Okay.

Thank you.

John G. Roberts, Jr.: Justice Sotomayor?  Justice Kagan? Justice Barrett? Justice Jackson? Okay.

Thank you, counsel.

Robert J. McNamara: Thank you, Your Honor.

John G. Roberts, Jr.: Mr. Nielson.

Aaron L. Nielson: Mr. Chief Justice, and may it please the Court:  The Court will  be hard-pressed to find any government more committed to property than Texas.

The Texas Constitution is more protective than the federal Constitution, and Texas courts under a Texas cause of action adjudicate takings claims under both constitutions.

This appeal thus isn't about substantive rights.

All Petitioners had to do was use Texas's cause of action.

Instead, Petitioners insist they can bring a cause of action directly under the federal Takings Clause itself.

This argument is wrong for many reasons.

For one, it ignores what the Constitution says.

Governments must provide just compensation,  but the Takings Clause says nothing about how they must do it, whether through commissions, private bills, or litigation.

For another, this Court held in Williams that Congress may constitutionally -- and I'm going to quote here  --"retain for itself the power to hear and determine controversies respecting claims against the United States."  It follows that, again, a quote, "there is no constitutional right to a judicial remedy."  As Petitioners concede, Congress did just that for nearly a century.

We don't see how this Court could hold for Petitioners without overruling Williams.

And as this Court explained in Knick, states didn't start recognizing state causes of action until after the Fourteenth Amendment's ratification.

Petitioners argue none of this matters because of First English, but the Court went out of its way in First English to emphasize that its decision was about substance, not procedure.

And if first Williams somehow did include a procedural holding, Texas satisfies  it.

We have a cause of action for federal takings claims.

Petitioners simply refuse to  use it.

We welcome the Court's questions.

Clarence Thomas: How would that cause of action -- what would it look like?

Aaron L. Nielson: So I would point the Court to the Texas Supreme Court's decision in City of Baytown, and they say, we hear claims under both the Texas Constitution and under the federal Constitution, and then they resolve the claim under Penn Central, which, of course, is a decision of this Court.

Clarence Thomas: Let's say we affirm here.

Can Petitioners' constitutional right be vindicated now in  --in Texas courts?

Aaron L. Nielson: Well, in federal court. The problem is they haven't pleaded the claim. So, at this point, you'd have to have leave from the district court to amend their complaint if they wanted to bring a claim under the Texas cause of action.

There's still live claims here. There's still a claim under the Texas  Constitution itself and they have federal due process  claims.

This is an interlocutory appeal.

So they would have to get leave from the district court to amend their complaint to bring a claim under Texas common law.

They've just never done it because they say they don't have to.

Sonia Sotomayor: I'm --

John G. Roberts, Jr.: Counsel, just a couple of quotes from cases.

In Cedar Point, we said that the Court in First English concluded categorically that the government must pay just compensation for physical invasion.

In Knick, it said First English rejects the view that the Constitution does not of its own force furnish a basis for a court to award money damages against the government.

Now we've  -- we've said those in many 25   -- 42 cases.

Those are just two recent ones --

Aaron L. Nielson: Correct, Your Honor.

John G. Roberts, Jr.: -- where I wrote the opinions.

So  -- (Laughter.)

Aaron L. Nielson: Correctly wrote the opinions.

John G. Roberts, Jr.: --so do you have any dispute with those  -- those holdings?

Aaron L. Nielson: We do not, Your Honor. That's a question of the substantive right, which Texas does not dispute, and you could pursue that claim under the Texas cause of action in a Texas court or here  --

John G. Roberts, Jr.: But it -- it's

Aaron L. Nielson: --in federal court -- yes, Your Honor.

John G. Roberts, Jr.: -- it's the statement of the -- the right, and that's a federal right, right?

Aaron L. Nielson: Yes, Your Honor.

John G. Roberts, Jr.: So you can require that a federal assertion of rights like that be brought in state court and not in federal court?

Aaron L. Nielson: Well, it's brought under a  -- a state cause of action.

So, I mean, you can remove -- there's diversity jurisdiction or something like that, like any other sort of  cause of action, but the cause of action itself is created by -- by Texas.

And that's how it's been  -- as this Court explained in Knick, that's how state  courts have always done it.

Since 1870s, this Court said and onwards --

John G. Roberts, Jr.: Well, it said -- what we said in --

Aaron L. Nielson: --that's how we've done it.

John G. Roberts, Jr.: -- what we said in Knick is that the Constitution of its own force furnishes the basis for a court to award money damages.

And you think what we had in mind is a  --a basis to  -- to --in state court but not federal court?

Aaron L. Nielson: When the claim is against a state, in Knick, the Court said 19 times by our count 1983.

Every time the Court states the holding in Knick, they tie it to Section 1983 because there's a difference between the substantive right and the cause of action.

In Knick, the cause of action was Section 1983 because Congress said, if you're  going to sue municipalities or cities, there you go, there's the cause of action.

John G. Roberts, Jr.: Well, you removed to federal court, where you couldn't bring an action under 1983, right?

Aaron L. Nielson: Correct, Your Honor.

We did remove to federal -- federal court.

Two reasons for that.

One, this is not just one case.

These are four separate cases, all putative class actions.

They say there's more than a hundred plaintiffs here.

Texas --these are filed in different counties.

Texas has no way to put all of them in a single Texas court.

So, if the cases were going to be in a single court, it had to be through removal and put them in  --in that court.

The second reason for that was Texas courts don't have a lot of experience with implied rights of acti on, alleged implied rights of action under federal law.

This is the bread and butter of this Court's -- you guys' court resolv es factual -- those types of issues all of the time.

So we thought let's just get it there, we'll get everybody in one case, and we can take out this, you know, putative federal cause of action, which we think is flatly irreconcilable to begin with.

John G. Roberts, Jr.: So under what basis would they proceed against the state under -- under 1983?

Aaron L. Nielson: They -- they couldn't, Your Honor.

There is no such claim.

Congress has said that you can bring claims against cities and municipalities.

You cannot sue the states under Section 1983.

They say they can.

So, under Bell v.

Hood, they've claimed that there is a federal cause of action.

When someone asserts that a federal cause of action exists, the federal courts have jurisdiction to decide whether that is true, and then they can decide on the merits whether the cause of action exists.

John G. Roberts, Jr.: Well, isn't that a -- a Catch- 22 or --I mean, you say they have to proceed in  --in state court.

They can't proceed in federal court.

And as soon as  they do, you remove it to federal court under 1983, where you say they can't proceed?

Aaron L. Nielson: Well, we would make the same argument in state or federal court that there is no federal cause of action directly under the Fifth Amendment.

That is not --

John G. Roberts, Jr.: Well, but that's what was rejected in  -- in the two cases that I read you, Cedar Point and Knick.

Aaron L. Nielson: With respect, Your Honor, I don't read either of those cases as saying there is a federal cause of action. There's certainly a federal substantive right to relief, but as this Court said in all of the Bivens line of cases or all the implied right of action cases, the right to, you know, a -- a substantive right does not therefore mean that there is a cause of action.

Elena Kagan: But, General, do you agree with Mr. McNamara that if a state takes a person's property and doesn't give compensation, that state is violating the Constitution every day?  It's an ongoing violation.

Do you agree with that?

Aaron L. Nielson: That's not how the Court has  -- I --I -- I believe -- I certainly agree that's a violation of the Constitution.

I don't think this Court's cases have ever  --

Elena Kagan: But that's what I want to know.

It's an ongoing violation of the Constitution, right?  I've taken Mr. McNamara's property.

I haven't paid him.

Every day, I'm  violating the Constitution, correct?

Aaron L. Nielson: Yes, Your Honor.

Elena Kagan: Okay.

So aren't courts supposed to do something about that?

Aaron L. Nielson: Yes, Your Honor.

And what this Court said in Knick is, when there's not a cause of action, which remember there wasn't a cause of action, there were  -- you have -- there's no remedies.

Elena Kagan: Yeah.

Aaron L. Nielson: What is injunctive relief --

Elena Kagan: But this is  --this is very different.

Aaron L. Nielson: Sure.

Elena Kagan: You know, in the usual case, we have a constitutional -- let's take a Fourth Amendment case.

You know, it's you've  searched somebody's home illegally.

Aaron L. Nielson: Mm- hmm.

Elena Kagan: It's happened, and then it's over, and then the question is what remedy are you going to be giving for that violation.

But this is a different kind of violation.

It's not  --it's not even clear that the word "remedy" is appropriate here.

It's a right to compensation.

And the state, by taking the land and not compensating, is violating that right every day.

It's not that the state  --

Aaron L. Nielson: Mm- hmm.

Elena Kagan: -- is failing to provide a remedy.

The state is violating the right to be paid.

Aaron L. Nielson: Sure, Your Honor.

And I -- I just -- and the answer would be, if there's not a cause  of action, that's why I went back to Knick.

Elena Kagan: Well, if it's not a cause of action, I mean, in the  --

Aaron L. Nielson: Sure.

Elena Kagan: -- usual case, suppose that a state violates Mr. McNamara's First Amendment rights.

Aaron L. Nielson: Yep.

Elena Kagan: Could he bring a suit about that?

Aaron L. Nielson: Yes, Your Honor, for injunctive relief.

Elena Kagan: Yes.

And what Mr. McNamara, I believe, is saying is that -- that the usual distinction that we draw, you can bring a right for injunctive relief, but you can't -- you can bring a suit for injunctive relief, but you can't bring a suit for damages, that's the usual distinction.

But it sort of falls apart in this case because the right is a right to be paid.

Aaron L. Nielson: Yes, Your Honor.

And so I  -- I -- I come at this from maybe the other direction.

Let's imagine that some government said, you know what, we're not going to pay. We're telling everybody now.

Now you are on notice we are not paying.

Well, then what happens?  Before they could do anything, you would rush to court and you would say:  Injunction.

They can't do it. They've promised they're not going to pay. They're not going to provide that.

And the Constitution says, if they don't, they're out -- they're violating their rights.

That's Eastern  Enterprises v. Apfel, where if there's -- clear that there's not going to be a right to judicial -- to payment, there are no -- no monies coming, not  -- not judicial, but no payments coming, you can get that injunction right away.

Elena Kagan: I mean, General, let me make the point another way.

Aaron L. Nielson: Sure.

Elena Kagan: I mean, it's sort of backwards to say that Mr. McNamara's client can sue for an injunction, meaning like, you know, give me back my property.

Actually, the state has a right to take his property or a prerogative to take  --

Aaron L. Nielson: Yeah.

Elena Kagan: -- his property.

If the state wants to use his property for a railroad, it doesn't really matter that the -- a person doesn't want to sell.

The state has the ability to take -- the only thing that the state does not have the prerogative to do and the thing that the landowner has a right to have is payment.

Aaron L. Nielson: Yes, Your Honor.

Elena Kagan: So to say, well, look, you can sue for an injunction but you can't sue for payment just doesn't understand the nature of this right.

Aaron L. Nielson: Well, so our first- line argument is, you know, the way the United States did it for a hundred years is correct.

But, if the Court disagrees with that, if the Court says, you know what, actually --

Elena Kagan: So, General, I kind of agree with that.

Your best argument is like what happened between the time of the Constitution and, you know, someplace in the late 19th Century.

But suppose that I'm not such an originalist and I don't really care about that.

(Laughter.)

Aaron L. Nielson: Sure.

All right.

So that's the answer I'm going to say.

So, if we -- if a court says, we read First English and it requires not just a substantive relief, it requires some sort of judicial proceeding, which  we don't think is consistent with the history, but let's assume, Texas does it.

Texas provides  a cause of action for which they can bring a federal takings claim.

So even if that is true, which we don't believe as our first -line argument is correct, Texas still wins.

They --

Amy Coney Barrett: What if Texas didn't do it, though?

Aaron L. Nielson: So  -- so that's where we get interesting.

Amy Coney Barrett: But I'm not -- and I just want to be clear I'm not talking about the hypothetical you gave where Texas announces in advance  --

Aaron L. Nielson: Yeah.

Amy Coney Barrett: -- we're going to take and we're not going to pay.

Let's say that Texas takes and just this one property owner can't get the money, the  --Texas is being intransigent about it.

Aaron L. Nielson: Mm- hmm.

Amy Coney Barrett: And Texas says: And, by the way, our  state cause of action -- we have no state cause of action for you to use in our courts to get the money, no private bills. We  don't do that.

There's no state --

Aaron L. Nielson: Sure.

Amy Coney Barrett: -- law remedy.

What then?

Aaron L. Nielson: All right.

So, you know, if a state goes rogue, that's how we're thinking about it, because we know from Knick all the states don't do that, but let's assume some state says, we're just not going to do that.

Well, you have injunctive relief.

I realize that might not be a perfect relief --

Amy Coney Barrett: Doesn't work in this hypothetical.

Aaron L. Nielson: It doesn't work because of that.

Then the answer is exactly what the Constitution says.

Congress -- Section 5 of the Fourteenth Amendment says, if a state is violating the Constitution, which would be happening in this scenario, that's precisely what Section 5 is for.

Congress has never done that --

Amy Coney Barrett: So they have to wait for Congress to enforce it through legislation? Would there be some sort of due process violation or an argument that the state has to  provide some sort of forum?

Aaron L. Nielson: Well, that's what I'm trying to say.

If you read First English that way to say that not only is it there's a substantive obligation, but there has to be some sort of judicial forum for -- for, you know, vindication of that  --

Amy Coney Barrett: Not a judicial forum.

It could be  --

Aaron L. Nielson: Sure.

Amy Coney Barrett: -- an administrative forum.

I mean, I  -- I'm taking --

Aaron L. Nielson: Okay.

Sure.

Sure.

Amy Coney Barrett: -- your argument about that.

Aaron L. Nielson: Okay.

Amy Coney Barrett: You're  -- you're really saying that the state could shut down and give no administrative forum, no legislative forum, no judicial forum, and because the Fifth Amendment doesn't create an implied cause of action, then the property owner would have to say, Congress, can you please use your Section 5 25   -- 55 power?

Aaron L. Nielson: The answer would be first try to get an injunction.

That doesn't always work for the reasons that you say.

In that scenario, yeah, that's what the Constitution says.

John G. Roberts, Jr.: Well, but we're talking --

Neil Gorsuch: Why  --

Samuel A. Alito, Jr.: Why  --

Neil Gorsuch: I'm sorry, Chief.

John G. Roberts, Jr.: Those are two governments.

I mean, we're talking about the ability of the government to take property without paying for it.

The states and Congress may have common cause on that.

And the idea that, well, you look to a different government

Aaron L. Nielson: Mm- hmm.

John G. Roberts, Jr.: --to tell this government that that's not something governments can do, that's not much of a remedy.

Aaron L. Nielson: Well, this Court has cases that says we trust that Congress takes itself seriously.

We trust that the states take their oath seriously.

That's one of the premises of Alden v. Maine, that they're going to do that.

But --

Neil Gorsuch: Well, we also -- we also assume people act in their self- interest.

Aaron L. Nielson: Sure.

Neil Gorsuch: And our whole system of separated powers is premised on that idea. And the self- interest here that would be created isn't a rogue state but an incentive for governments not -- not -- to  --to withdraw their -- their existing causes of action.

I think that's the thrust  --

Aaron L. Nielson: Yeah.

Neil Gorsuch: -- of Justice Barrett and the Chief's questions.

Aaron L. Nielson: What we  --

Neil Gorsuch: And I guess I'm wondering --

Aaron L. Nielson: Sorry.

Neil Gorsuch: -- why wouldn't the injunction order the state to pay?

Aaron L. Nielson: So that's a question that has not been litigated, whether you could have injunctive relief to pay.

Neil Gorsuch: Say you have to provide  --

Aaron L. Nielson: Correct.

Neil Gorsuch: -- just compensation.

We're not telling you how.

Aaron L. Nielson: Yeah.

Neil Gorsuch: We're not telling you in what forum.

Aaron L. Nielson: And  --

Neil Gorsuch: But the Constitution commands it.

Aaron L. Nielson: Sure.

As I said, that's -- if you want to read First English that way, Texas has no quarrel with that because we provide it.

And we don't just provide through a commission, though I think we have the constitutional right to do so.

We do it in court.

We  --

Amy Coney Barrett: But you have to answer -- I'm sorry.

You have to answer the hypothetical.

Aaron L. Nielson: Yeah.

Amy Coney Barrett: I think Justice Gorsuch's premise is that Texas isn't doing this.

Aaron L. Nielson: Okay.

So, if we say that a Texas doesn't or -- or some state doesn't have a -- a court proceeding and you don't have  any other sort of commission, you still can get an injunction, and if you know the state doesn't have any of those things, you can get that injunction very, very, very early.

Neil Gorsuch: And wouldn't the injunction say, Texas, you have an obligation --

Aaron L. Nielson: Mm- hmm.

Neil Gorsuch: -- to pay?

Aaron L. Nielson: And this is where I'm not quarreling because Texas  --

Neil Gorsuch: Okay.

Aaron L. Nielson: --as a matter of --

Brett M. Kavanaugh: You don't want to concede that?

Aaron L. Nielson: --first principles -- as a matter of first principles, I don't know how you get there.

But I'm saying that Texas has no quarrel with it --

Neil Gorsuch: Okay.

And  -- and --

Aaron L. Nielson: --because Texas does have the usual thing.

Neil Gorsuch: I've got  -- I've got it.

I've got it.

I just want to -- I just want to clear up two other things.

Aaron L. Nielson: Sure.

Neil Gorsuch: What is the common law cause of action and what is the state constitutional cause of action that does exist that you say could have but wasn't brought?

Aaron L. Nielson: That's right.

So the -- the easiest place to see it because it's the most recent and I think the most clear is t he Texas Supreme Court's City of Baytown  --

Neil Gorsuch: Right.

That just says, though, as I understand it from your colleague --

Aaron L. Nielson: Yeah.

Neil Gorsuch: -- go look at the federal Constitution.

So how does that help you?

Aaron L. Nielson: Well, they look at both. They say, we resolve takings claims under our constitutions, plural, and then they cite both. And I think  --

Neil Gorsuch: So Texas has represented  to this Court that there is a state constitutional cause of action? 25   -- 60

Aaron L. Nielson: Yes, Your Honor.

Neil Gorsuch: Okay.

And is there a common law cause of action --

Aaron L. Nielson: Well, that  --

Neil Gorsuch: -- that would achieve the same thing?

Aaron L. Nielson: --that's what I'm -- that's what I'm -- I must have -- I must have misunderstood --

Neil Gorsuch: Beyond  --

Aaron L. Nielson: -- what you were saying. That is the cause of action.

Neil Gorsuch: That is the cause of action?

Aaron L. Nielson: Yeah.

Neil Gorsuch: Okay.

And it wasn't pled here, is what you're --

Aaron L. Nielson: No, Your Honor.

They --

Neil Gorsuch: What does  --

Aaron L. Nielson: --vigorously resisted

Neil Gorsuch: Fine.

Fine.

Aaron L. Nielson: --the idea that they have to  --

Neil Gorsuch: Okay.

I got it. And what  --what cause of action remains pendent as you understand it?

Aaron L. Nielson: So they still have claims for federal due process, and they still have claims for the Texas Constitution.

Neil Gorsuch: Would you oppose leave to amend to add a Texas constitutional claim on an email?

Aaron L. Nielson: On behalf of the State of Texas, we would not oppose that in the district court.

Neil Gorsuch: Okay.

Thank you.

Brett M. Kavanaugh: Justice Gorsuch  --

Sonia Sotomayor: Sorry.

But I  --I -- I  --I'm sorry.

Brett M. Kavanaugh: Go ahead.

Sonia Sotomayor: Point of clarification.

Aaron L. Nielson: Sure.

Sonia Sotomayor: Tell me how they plead this.

Let's assume we affirm the court below.

There's no freestanding right to come into federal court and sue Texas under the Fifth Amendment.

How would they go to the Texas court and make their Fifth Amendment claim?  What would they say in the Texas court?

Aaron L. Nielson: So  --yes.

So what they would say here, and, candidly, the pleadings have never been as pellucid as I think anyone  would have liked, but what I think that they would say is, we are bringing our claim under state law, see City  -- see, e.g., City of Baytown.

I think that would be sufficient to  get us there.

Sonia Sotomayor: That  -- that's -- my gosh.

I've never heard of pleadings in any state where you had to mention the law at issue.

Aaron L. Nielson: Well, that's  the --

Sonia Sotomayor: Usually you mention the facts  --

Aaron L. Nielson: Well --

Sonia Sotomayor: -- or you state the facts and then you --

Aaron L. Nielson: Well --

Sonia Sotomayor: But putting that aside, here, they say violation of Article I, Section 17 of the Texas Constitution for the taking, damaging, or the destruction of their property.

That's Count 1.

Aaron L. Nielson: Yes, Your Honor.

Sonia Sotomayor: And Count 2 says violation of the Fifth Amendment of the U.S. Constitution.

Aaron L. Nielson: Yes, Your Honor.

Sonia Sotomayor: Summarizing basically.

I don't know what else they would  have had to do in Texas court if I cite that case.

Aaron L. Nielson: It  --

Sonia Sotomayor: They said, I'm suing you in Texas court.

You're the one who removed to federal court.

Aaron L. Nielson: Yes, Your Honor.

Sonia Sotomayor: This seems to me like a totally made- up case because they did exactly what they had to do under Texas law. It's you who are telling me -- it's almost a bait and switch -- that you wanted to get to federal court to basically have a class action and you couldn't do it in state court, so  -- but you had to fight something, which I don't know what you're fighting because you're telling me that Texas lets them have a cause of action under the Fifth Amendment.

Aaron L. Nielson: Yes, Your Honor. There's no bait and switch here, I want to be clear on that, no bait and switch.

Sonia Sotomayor: Well, you're the one who removed.

Aaron L. Nielson: We removed, and they didn't come back and say, oh, no, you misunderstand what we're saying.

Instead, every  step along the way, they have doubled down all the way going to cert, you know, seek certiorari review from this Court.

So, if we misunderstood what they were saying --

Sonia Sotomayor: So, if  --if they go back down and say to the district court, this has been remanded to the district court, all we want is just compensation under the Texas Constitution and the Fifth Amendment under that case that you're mentioning, that's okay and you're not going to resist that?

Aaron L. Nielson: We  -- we --we would not resist that, Your Honor.

Sonia Sotomayor: Okay.

Brett M. Kavanaugh: On Justice Gorsuch's injunction- to-pay hypothetical, I just want to make sure I'm clear on that.

Aaron L. Nielson: Yeah.

Brett M. Kavanaugh: I thought you were saying we don't need to answer that question in this case because Texas provides forums for compensation.

Aaron L. Nielson: Yes, Your Honor. Conceptually, I don't know how you get an injunction to pay money.

Brett M. Kavanaugh: But -- but --

Aaron L. Nielson: I'm not familiar with that, but that's blowing apart --

Brett M. Kavanaugh: I  --I understand that, but even in the --

Aaron L. Nielson: Yeah.

Brett M. Kavanaugh: -- the theoretical possibility of it is just not present here, right?

Aaron L. Nielson: Correct, Your Honor. And, as I said, it's hard for me to quarrel with it because Texas does pay money.

But, conceptually, I don't know how you get there.

Brett M. Kavanaugh: Yeah.

Aaron L. Nielson: If I may --

Ketanji Brown Jackson: What about a declaration?  What about a declaration?  Is that something different?

Aaron L. Nielson: A declaration?

Ketanji Brown Jackson: Could you sue for -- for  --

Aaron L. Nielson: Sure.

Ketanji Brown Jackson: -- declaratory judgment that Texas or whatever state is not paying you?

Aaron L. Nielson: So my understanding of a declaratory judgment action is it sounds in equity, not in damages.

So I think it would fall within  the universe of Ex parte Young type remedies.

So we wouldn't have any objection to that either, though, again, I -- I'm a little bit shooting from the hip, so I apologize it wasn't briefed on that one, so I'm -- I'm a bit nervous on that.

Ketanji Brown Jackson: Yes.

Aaron L. Nielson: Though, I mean, if I  -- if I may, I would like just to make a couple of affirmative points.

John G. Roberts, Jr.: Well, no, you can do that later.

Aaron L. Nielson: Oh,  I apologize, Your Honor.

John G. Roberts, Jr.: Yeah. Justice Thomas? Justice Alito?

Samuel A. Alito, Jr.: Well, why don't you quickly make an affirmative point.

(Laughter.)

Aaron L. Nielson: Well, I would just like to say that as far as I am aware, Texas is the only party here that has offered evidence on the original public meaning of the actual language of the text, not the ideas, the actual language of the Constitution.

And when courts looked at that language, they read it precisely the same way that Texas does now.

John G. Roberts, Jr.: Anything further?

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: Justice Sotomayor?  Justice Gorsuch? Justice Jackson? Thank you, counsel.

Aaron L. Nielson: Thank you, Your Honor.

John G. Roberts, Jr.: Mr. Kneedler.

Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court:  The Fifth Amendment to the United States Constitution does not of its own force create a cause of action against the government under the Fifth Amendment against the United  States Government for damages.

Numerous provisions of the Constitution make that clear, including the text of the just compensation clause itself.

It says property shall not be taken, no person -- property shall not be taken for public use without just compensation.

The right is not to have the property taken without compensation.

It's not a right to compensation.

And this  --it's prohibitory.

It has a condition for the governmental action to be lawful.

That condition is the payment of compensation.

If there's not compensation, then the action is unlawful, and what lies is an injunction to cease the taking of the property.

This Court in  --in a number of recent -- relatively recent cases has made that point.

In Ruckelshaus versus Monsanto, in Dames   Moore, in the railroad reorganization cases, the question really was, should there be an injunction preventing this statute from going  into effect, or is there compensation available under the Tucker Act such that an injunction would not be appropriate?  In all of those cases, that's what  the Court held, that there was compensation available.

But the very question presupposed that there might be situations in which compensation was not available.

That's the violation.

And the same thing, if you look at the overall context of the Fifth Amendment, that is also true.

The preceding clause, as Justice Alito pointed out, says that no person shall be deprived of property without due process.

The prohibition is the deprivation, the condition -- without  -- without the condition of due process. If a court finds a violation, it doesn't order due process.

It orders  --it enjoins the conduct that was undertaken without due process.

The government can always go back and do it over again with due process.

And --and, finally, there's another clause in the Fifth Amendment that is written in exactly the same way, the indictment clause.

It  says a person shall not be held for a capital or otherwise infamous crime unless on a presentment of an indictment.

An indictment is the condition precedent to having a lawful holding  of somebody for a crime, and one --

John G. Roberts, Jr.: Mr. Kneedler, in the --

Edwin S. Kneedler: Yeah.

John G. Roberts, Jr.: -- brief that you filed in First English 38 years ago, you argued that the Constitution does not of its own force furnish a basis for a court to award money damages against the government.

Now, in the decision in First English, Justice Rehnquist rejected the idea "that the Constitution does not of its own force furnish a basis for the court to award money damages against the government."  Now it seems to me that the question turns on basis.

And what you seem to be saying is it created a general theory of what the 25    -- 71 government had to do.

But that doesn't mean that anybody could take that and recover compensation.

They have to go get an injunction or they  --they can't proceed at all because there's no cause of action?

Edwin S. Kneedler: Yes, Your Honor.

John G. Roberts, Jr.: I mean, are you just rearguing the point that the Court rejected?

Edwin S. Kneedler: Not at all.

Not at all.

Our -- our point -- that portion of our brief was really going to the cause of action question and  --and for the reasons that we said in that brief and this brief, and I don't think the Court rejected this.

For all the reasons we said, not just the text of the clause, but  -- but the Appropriations Clause, the Fifth Amendment only applied to the United States, the Appropriations Clause would have prohibited any court from awarding a money judgment or an injunction to pay money because only Congress can authorize the payment of money from the Treasury.

John G. Roberts, Jr.: Well, but it's

Edwin S. Kneedler: OPM versus Richmond makes that clear.

John G. Roberts, Jr.: Well, the Constitution can do it too, which is what the rest of that footnote rejecting the arguments that the government made in First English said. It says that the cases made clear that it is the Constitution that dictates the remedy for interference with property rights amounting to a taking.

So I --I'm not sure how you get around the fact that the Constitution speaks in terms of  just compensation and not an injunction.

Edwin S. Kneedler: Well, as I said, it speaks in terms of compensation in terms of defining the right, which is not to have property taken without just compensation.

But that footnote, I think it's important to understand the context of that footnote.

In fact, all of First English was about the Agins rule in the  -- in the --in California, which said there was not even a taking.

Sometimes they said no compensation, but there was no taking until a court first determined that there was a taking.

And that was the rule, that was the controversy at the time, the so- called temporary taking.

Does -- does the taking arise in a regulatory context at the time the regulation is effective or later?  That was the issue that the Court rejected, and in that respect, it said no, compensation is owed from the moment of -- of the Constitution.

And what  --

John G. Roberts, Jr.: Thank you, counsel.

Samuel A. Alito, Jr.: Mr. Kneedler, I have a little trouble understanding your argument about the Tucker Act.

In your view, neither the Tucker Act nor the Takings Clause provides a cause of actio n, but then you say the combination of the two somehow provides a cause of action.

And the Petitioner says that what you're saying is that nothing plus nothing equals something.

So this  --you must be relying on some kind of higher math that I can't understand.

Where  -- what is the cause of action --

Edwin S. Kneedler: I  --

Samuel A. Alito, Jr.: -- in a Tucker Act suit?

Edwin S. Kneedler: As I said, I think it's the combination of the two.

It's not zero plus zero; it's one -half plus one- half.

The --as we say, the  --the -- the Constitution, the Fifth Amendment itself, does not create a cause of action.

It would have -- would have been extraordinary.

We went for 200 years, as  pointed out, with that not being the case.

But what the Tucker Act does is, as the Court said two terms ago, three terms ago, I guess, it provides the framework under which it -- it can be determined whether Congress has provided the ability to sue under the Tucker Act.

The Tucker Act standard is whether the particular substantive provision that is being relied upon creates a -- can reasonably be read to mandate compensation if there is a violation. By definition -- and the Court made this point in Bormes -- the Tucker Act is there for something where there is an obligation but no elements of a cause of action.

So the -- the  -- for example, the Fifth Amendment or the statute that may be involved, particular statute that may be involved, by definition does not create a cause of action.

Congress provided in the Tucker Act that you can recover compensation if -- if the other provision of law can reasonably be construed.

That's  -- that's a Tucker Act standard for when  --

Samuel A. Alito, Jr.: All right.

Suppose there -- suppose that the Takings Clause was not in the Constitution, but Congress enacted a statute that said the federal government shall not take private property for public use  without just compensation.

Would that be a money- mandating statute that creates a cause of action?

Edwin S. Kneedler: I don't think so.

I -- because it's a  --it's a -- it's a prohibition, I think it's the same -- the same as the Fifth Amendment itself.

It  --it is a directive to Congress not to -- or executive not to take property without affording compensation.

Now it may be that the particular statute would be understood or could be interpreted that way, but, here, we're talking about the Constitution, and no other provision  of the Constitution provides of its own force a remedy, particularly a remedy for damages.

And that would have been extraordinary at the time the Constitution was adopted because of the Appropriations Clause, sovereign immunity, and the Debt Clause.

If  --if compensation is not paid, that is a debt of the United States, and it's clear --

Samuel A. Alito, Jr.: I find it hard to understand how that would not be a statute that mandates the payment of money.

It says you -- you can't take property for a public use without just compensation.

It's talking about paying money.

If that's not a money- mandating provision, then --

Edwin S. Kneedler: It might -- it might be -- it might be money -- money-mandating under the Tucker Act.

I  -- I think I understood you to say this wasn't the Tucker Act.

Samuel A. Alito, Jr.: No.

Edwin S. Kneedler: But that's because the Tucker Act has been under --

Samuel A. Alito, Jr.: It's another  -- it's another statute, and we would interpret it like we interpreted the statute in Maine Community Health.

Does -- does it mandate the payment of money?  I would think the answer to that would be yes.

And if that's the case with the  statute, why isn't it the same with the --

Edwin S. Kneedler: Because the  --

Samuel A. Alito, Jr.: -- with the Fifth Amendment?

Edwin S. Kneedler: -- money mandating is not  --is not something under the Tucker Act. It is -- it is a provision in the Tucker Act that  --

Samuel A. Alito, Jr.: All right.

Edwin S. Kneedler: It's not -- it's not the other statute.

It's a provision in the Tucker Act.

And that is a Tucker Act- specific standard for when Congress --

Samuel A. Alito, Jr.: Thank you.

Ketanji Brown Jackson: Mr.

--

Samuel A. Alito, Jr.: Thank you, Mr. Kneedler.

Ketanji Brown Jackson: -- Mr. Kneedler, I thought your answer to Justice Alito was going to be going back to what you said at the beginning, which is the compensation is conditional in the same way as the Due Process Clause is conditional.

I thought that was very interesting, and maybe you want to repeat it.

Edwin S. Kneedler: Yeah.

No, no, that  -- I think that's a fundamental point about the text, not -- of the just compensation clause  itself, but the entire Fifth Amendment is pro -- is prohibitory.

I mentioned the indictment clause, but the self- incrimination clause is the same way.

The Double Jeopardy Clause is  -- is the same.

Ketanji Brown Jackson: And so, to the extent that we see a condition there, it -- you -- you're not interpreting that as mandating that condition necessarily.

It's about the prohibition?

Edwin S. Kneedler: Right.

Exactly.

If I could -- I'm sorry.

If I could go back to the Chief Justice's question about First English, the language in that footnote is directed to, it says, remedial.

But what it is referring to is the computation of just compensation as a remedial matter.

If you have a cause of action, how do you calculate the remedy?  All of the cases, it says, as the cases in the text make clear, it  -- it's a remedy, and it does provide a basis for compensation, but in a cause of action where there already is one.

John G. Roberts, Jr.: Thank you.

Edwin S. Kneedler: Every one of the cases the Court cited --

John G. Roberts, Jr.: Thank -- thank you, counsel.

Edwin S. Kneedler: I'm sorry.

John G. Roberts, Jr.: Justice Thomas?

Clarence Thomas: No.

John G. Roberts, Jr.: Anything further?

Sonia Sotomayor: Is your position -- is there any daylight between Texas's position and the government's position here?

Edwin S. Kneedler: Well, some  --

Sonia Sotomayor: Your  --you representing the government?

Edwin S. Kneedler: Yeah.

To the extent there was a suggestion that there could be an injunction to pay money, we would disagree with that because of the Appropriations Clause, I think.

The Fifth Amendment cannot be read --

Sonia Sotomayor: So would it be  --

Edwin S. Kneedler: -- to allow that.

Sonia Sotomayor: -- a matter of semantics, you can't take this property?  You have to stop flooding it?  You have to do  --

Edwin S. Kneedler: You have to  -- you have to stop whatever it is that would constitute a taking.

And -- and --

Sonia Sotomayor: Right.

And just to clarify your answer to Justice Alito in my head, you're saying it's the Tucker Act plus the statute  --

Edwin S. Kneedler: Yes.

Sonia Sotomayor: -- mandating payment that gets you into court?

Edwin S. Kneedler: That is -- that's -- that's correct, and it's certainly not the -- it's certainly not the other provision itself, the just  --the just compensation clause or the other statute, which by definition  --

Sonia Sotomayor: So that's your half- point/half- point --

Edwin S. Kneedler: Yes.

Sonia Sotomayor: -- equals one?

Edwin S. Kneedler: Yes.

Sonia Sotomayor: Okay.

Edwin S. Kneedler: Sorry.

John G. Roberts, Jr.: Justice Kagan? Justice Gorsuch?

Neil Gorsuch: Two questions. First, the rogue state example, why shouldn't we worry about that?  Why shouldn't we worry about  the incentive structure we create that would allow states to withdraw compensation s chemes, and maybe the federal government too, to exploit this loophole?

Edwin S. Kneedler: With respect, it's not a loophole.

It's a  -- it's a fundamental aspect of the Constitution that the Constitution does not  -- does not require this. And the rogue state is answered by it's a prohibition, and if -- if Congress does not provide the condition necessary to render it lawful, you have an injunction -- injunctive action.

And as the Court said in Knick, that was the way  --

Neil Gorsuch: Okay.

Edwin S. Kneedler: -- that just compensation issues were raised before.

Neil Gorsuch: Okay.

And then, second, this may be a question better directed to Mr. McNamara when he speaks on rebuttal, but Justice Sotomayor pointed out an interesting  feature of the procedural history of this case. The complaint has two counts about takings.

One  is under the state constitution, and the other is under the federal Constitution.

How do we read what the Fifth Circuit did here?  Did it only dismiss the second, the federal claim, and is the first claim under, what is it, City of Bayview and the -- and the Texas Constitution, still live?  Do they even need to amend their complaint to add it?  Is it already there?

Edwin S. Kneedler: There's a footnote in the court of appeals' opinion that says that the Texas Constitution or Texas provides a cause of action.

And that is not further elaborated upon, but it's --

Neil Gorsuch: No.

Exactly.

Edwin S. Kneedler: -- it's remanded for further proceedings.

Neil Gorsuch: So do you take it that that first count under the state constitution is still alive and available to the plaintiffs?

Edwin S. Kneedler: I  --it is  still alive and available.

If it required an amendment to the complaint, I --

Neil Gorsuch: Do you think it requires amendment  --

Edwin S. Kneedler: I  --

Neil Gorsuch: -- to the complaint, or because it was remanded for further proceedings and the court only expressly addressed the federal Constitution, that that first count is still alive?

Edwin S. Kneedler: I think it would depend on whether that first count, in  --in relying on the state constitution, was just relying on a state substantive right to compensation or whether it was also relying  --

Neil Gorsuch: Well, Texas --

Edwin S. Kneedler: -- on a cause of action.

Neil Gorsuch: -- has represented to us that it provides a cause of action  --

Edwin S. Kneedler: Right.

And  --

Neil Gorsuch: -- right?  So --

Edwin S. Kneedler: -- so, yes, if  -- if -- if the complaint is read to be invoking the state cause of action for the federal taking,  then, yes, I think that would be open on remand.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh?  Justice Barrett?

Amy Coney Barrett: Mr. Kneedler, I just want to clarify something.

So your position in response to, say, the rogue state hypothetical, when you said an injunction is the solution, it's not an injunction to pay money because you said the United States thinks that can't  happen. So is it your position that if, say, a state or the United States takes property, refuses to get -- give just compensation for it, that the property owner could get an injunction essentially saying, give me my property back if you're not going to pay, and perhaps get that injunction but not get reimbursed for the temporary taking that happ ened in between the seizure and the award of the injunction?

Edwin S. Kneedler: That -- that is -- that is correct.

And the same thing would be true, there could be a temporary deprivation of due process, and if you get an injunction preventing the government from doing whatever it d id without due process, there is an interim period, but a person can go to court, get a TRO, get a preliminary injunction to -- to prevent that from going on a long  --a long time.

That's just the nature of litigation and an injunction, but it doesn't lead to the question of damages.

And this Court's cases, First English and others, had to do with the calculation whether interest should be paid, and that's what the Court meant about the Fifth Amendment being a basis for the award of compensation, not that there was a cause of action.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: And just to clarify from what Justice Barrett just said, the government's position would be that you might be able to have a cause of action, say, under state law or whatnot for that temporary taking.

It's not that you would be out the compensation entirely, right?

Edwin S. Kneedler: Right.

It  -- that would depend on -- on state law and the availability of a state cause of action on that. But we're -- I'm only talking about the federal  causes of action, which there's no basis for an award of money out of the Treasury and overcoming sovereign immunity and all that in  federal court for a compensation even for that interim period.

But the interim period is endemic to  -- to litigation, due process violation being held on an indictment, but that is the proper remedy and that's the -- the remedy that existed until the Tucker Act was passed.

It was the remedy that this Court said in Knick was the way to vindicate Fifth Amendment rights until the Tucker Act or state constitutions came along and provided a monetary remedy.

Ketanji Brown Jackson: Thank you.

John G. Roberts, Jr.: Thank you, counsel.

Rebuttal, Mr. McNamara.

Robert J. McNamara: Thank you, Your Honor. To begin with  Justice Gorsuch's question, I think it's important to remember the procedural posture here.

I understood my friend  from Texas to say that the City of Baytown decision means that Texas courts hear claims  "under the federal Constitution."  The complaint pleads a claim under the federal Constitution, and to the extent Texas's  only complaint with that was that it failed to cite directly to a Texas Supreme Court decision, it's not clear why Texas moved to dismiss it, sought an interlocutory appeal of that deci sion as a dispositive issue and then extinguished it on the merits in the Fifth Circuit.

To the extent that claim exists, that claim has been extinguished and that warran ts reversal.

To the original meaning, and I think, Your Honor, the -- the rogue state example is not a hypothetical.

It's a real example because state after state has looked to federal law and to First English as the thing that prevents the state from denying compensation.

That's true in Oregon, as I mentioned, but also New Mexico, South Carolina, Nebraska, the list goes on of states that provide compensation under the Fifth Amendment beca use they understand the Fifth Amendment to require compensation.

And they're correct to understand that, Your Honor.

The original understanding,  as evidenced by writings from James Madison to St. George Tucker, is that the Fifth Amendment creates an obligation to pay, which is why you  can sue under the Tucker Act because the Fifth Amendment creates an obligation to pay.

Only in the absence of a court of competent jurisdiction to enforce that obligation does -- do the federal courts resort to cases like Meigs v. McClung's Lessee, where the Court ejected the United States military from its own base because it didn't have clean title.

That -- that is the last resort in the absence of a court that has the jurisdiction to enforce that obligation.

That's why, in Maine Community Health, this Court specifically pointed to the Takings Clause as the analogy for what sort of money- mandating inquiry it means to create the obligation to pay. But, more broadly, Your Honor, I -- I think Texas's understanding of the Fifth Amendment would relegate property rights to the  status of the poor relation of the Bill of Rights.

It would be the only acknowledged ongoing obligation in the Constitution that is  entitled to no enforcement, that is left entirely to the discretion of the government  entities that are supposedly obligated to pay. But, surely, as evidenced by the writings and by the adoption of the Fifth Amendment itself, the Framers meant for property rights to mean more than that.

If the Court has no further questions, we'll rest on our briefs.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.