PRELIMINARY PRINT

Volume 601 U. S. Part 2 Pages 285–293

OFFICIAL REPORTS OF

THE SUPREME COURT April 15, 2024

Page Proof Pending Publication

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, [email protected], of any typographical or other formal errors. OCTOBER TERM, 2023 285

Syllabus

DeVILLIER et al. v. TEXAS certiorari to the united states court of appeals for the fth circuit No. 22–913. Argued January 16, 2024—Decided April 16, 2024 Richard DeVillier and more than 120 other petitioners own property north of U. S. Interstate Highway 10 between Houston and Beaumont, Texas. The dispute here arose after the State of Texas took action to use por- tions of I–10 as a food evacuation route, installing a roughly 3-foot-tall barrier along the highway median to act as a dam. When subsequent hurricanes and storms brought heavy rainfall, the median barrier per- formed as intended, keeping the south side of the highway open. But it also fooded petitioners' land to the north, causing signifcant damage to their property. DeVillier fled suit in Texas state court. He alleged that by building the median barrier and using his property to store stormwater, Texas had effected a taking of his property for which the State must pay just compensation. Other property owners fled similar suits. Texas removed the cases to federal court, where they were con-

Page Proof Pending Publication solidated into a single proceeding with one operative complaint. The operative complaint includes inverse-condemnation claims under both the Texas Constitution and the Takings Clause of the Fifth Amendment. As relevant, Texas moved to dismiss the federal inverse-condemnation claim, arguing that a plaintiff has no cause of action arising directly under the Takings Clause. The District Court denied Texas' motion, concluding that a property owner may sue a State directly under the Takings Clause. The Fifth Circuit reversed, holding “that the Fifth Amendment Takings Clause as applied to the states through the Four- teenth Amendment does not provide a right of action for takings claims against a state.” 53 F. 4th 904 (per curiam). Held: DeVillier and the other property owners should be permitted to pursue their claims under the Takings Clause through the cause of ac- tion available under Texas law. The Takings Clause of the Fifth Amendment states: “nor shall private property be taken for public use, without just compensation.” The Court has explained that “a property owner acquires an irrevocable right to just compensation immediately upon a taking” “[b]ecause of `the self-executing character' of the Tak- ings Clause `with respect to compensation.' ” Knick v. Township of Scott, 588 U. S. 180, 192 (quoting First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 315). The 286 DeVILLIER v. TEXAS

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question here concerns the procedural vehicle by which a property owner may seek to vindicate that right. Constitutional rights do not typically come with a built-in cause of action to allow for private en- forcement in courts, see Egbert v. Boule, 596 U. S. 482, 490–491, and so they are asserted offensively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. § 1983. DeVillier relies on First English and other cases to argue that the Takings Clause cre- ates by its own force a cause of action authorizing suits for just compen- sation. But those cases do not directly confront whether the Takings Clause provides a cause of action. It would be imprudent to decide that question without frst establishing the premise in the question pre- sented that no other cause of action exists to vindicate the property owner's rights under the Takings Clause. Texas state law does provide an inverse-condemnation cause of action by which property owners may seek just compensation against the State based on both the Texas Con- stitution and the Takings Clause. This case therefore does not present the circumstance in which a property owner has no cause of action to seek just compensation. The Court therefore remands so that DeVillier and the other property owners may proceed through the cause of action available under Texas law. Pp. 291–293. 53 F. 4th 904, vacated and remanded. Page Proof Pending Publication Thomas, J., delivered the opinion for a unanimous Court.

Robert J. McNamara argued the cause for petitioners. With him on the briefs were Andrew H. Ward, Christen Mason Hebert, Daniel H. Charest, E. Lawrence Vincent, and Charles Irvine. Aaron L. Nielson, Solicitor General of Texas, argued the cause for the State of Texas. With him on the brief were Lanora C. Petti t, Principal Deputy Solicitor General, Natalie D. Thompson, Kateland R. Jackson, and Sara B. Baumgardner, Assistant Solicitors General, Ken Paxton, At- torney General, Brent Webster, First Assistant Attorney General, and J. Andrew Mackenzie, Assistant Attorney General. Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging affrmance. With him on the brief were Solicitor General Prelogar, As- Cite as: 601 U. S. 293 (2024) 287

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sistant Attorney General Kim, Principal Deputy Assistant Attorney General Boynton, Anthony A. Yang, William B. Lazarus, John L. Smeltzer, and Alisa B. Klein.*

Justice Thomas delivered the opinion of the Court. Richard DeVillier alleges that the State of Texas took his property for stormwater storage. He sought just compensa- tion under the Takings Clause of the Fifth Amendment, ar- guing that the Constitution itself authorized him to bring suit. We granted certiorari to decide whether “a person whose property is taken without compensation [may] seek redress under the self-executing Takings Clause even if the

*Briefs of amici curiae urging reversal were fled for the American Farm Bureau Federation by Paul Beard II, Susan V. Warner, Ellen Steen, and Travis Cushman; for the Atlantic Legal Foundation by Lawrence S. Ebner and Nancie G. Marzulla; for the Chamber of Commerce of the United States of America by Jeremy C. Marwell, Andrew R. Varcoe, and Page Proof Pending Publication Jonathan D. Urick; for the National Association of Realtors® et al. by Brett A. Shumate and William J. Strench; for the Pacifc Legal Foundation et al. by Deborah J. La Fetra, Robert H. Thomas, Kathryn D. Valois, Elizabeth Milito, and Ilya Shapiro; for James W. Ely, Jr., et al. by Thomas G. Saunders, David Tryon, and Jay Carson; for Ilya Somin et al. by Caro- line C. Lindsay and Anastasia P. Boden; and for Ernest A. Young by Gregg J. Costa. Briefs of amici curiae urging affrmance were fled for the State of Minnesota et al. by Keith Ellison, Attorney General of Minnesota, Liz Kramer, Solicitor General, and Michael Goodwin and Colin O'Dono- van, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Steve Marshall of Alabama, Treg Taylor of Alaska, Raúl Labrador of Idaho, Theodore E. Rokita of Indiana, Jeff Landry of Louisiana, Lynn Fitch of Mississippi, Michael T. Hilgers of Nebraska, Matthew J. Platkin of New Jersey, Josh Stein of North Carolina, Drew Wrigley of North Dakota, Dave Yost of Ohio, Gentner Drummond of Oklahoma, Ellen F. Rosenblum of Oregon, Alan Wilson of South Carolina, Sean Reyes of Utah, and Jason S. Miyares of Virginia. Felicia H. Ellsworth and Eric L. Hawkins fled a brief for Carlos M. Vázquez as amicus curiae. 288 DeVILLIER v. TEXAS

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legislature has not affrmatively provided them with a cause of action.” Pet. for Cert. i. That question assumes the property owner has no separate cause of action under which to bring a claim based on the Takings Clause. But, that is not the case here. Texas law provides a cause of action that allows property owners to vindicate their rights under the Takings Clause. We therefore vacate and remand so that DeVillier's claims may proceed under Texas' state-law cause of action. I Richard DeVillier and more than 120 other petitioners own property north of U. S. Interstate Highway 10 between Houston and Beaumont, Texas.1 The State of Texas under- took several projects to facilitate the use of that portion of the highway as a food-evacuation route. It installed a roughly 3-foot-tall barrier along the highway median to act as a dam, preventing stormwater from covering the south Page Proof Pending Publication side of the road. In August 2017, Hurricane Harvey brought heavy rain- fall to southeast Texas. The new median barrier per- formed as intended, keeping the south side of the highway open. But, it also fooded petitioners' land to the north, displacing them from their homes, damaging businesses, ruining crops, killing livestock, and destroying family heir- looms. The same thing happened during Tropical Storm Imelda in 2019. As depicted, the median barrier kept the south side of the highway open (on the left side of both pictures) by holding back stormwater, which then sub- merged property north of the highway (on the right side of both pictures):

1 Because this case comes to us at the pleading stage, we assume the truth of the facts alleged in the operative complaint. See, e.g., Swierkie- wicz v. Sorema N. A., 534 U. S. 506, 508, n. 1 (2002). Cite as: 601 U. S. 293 (2024) 289

Opinion of the Court

Figure 1

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Figure 2

Because heavy rainfall is not uncommon in southeast Texas, the median barrier will continue to cause fooding on DeVillier's land during future storms. DeVillier fled suit in Texas state court. He alleged that, by building the median barrier and using his property to store stormwater, Texas had effected a taking of his prop- erty. DeVillier argued that he was therefore entitled to just 290 DeVILLIER v. TEXAS

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compensation under both the United States and Texas Con- stitutions. Other property owners filed similar suits. Texas removed the cases to federal court, where they were consolidated into a single proceeding with one operative complaint. The operative complaint includes inverse- condemnation claims under both the Texas Constitution and the Takings Clause of the Fifth Amendment. See Knick v. Township of Scott, 588 U. S. 180, 186 (2019) (“Inverse condemnation is a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant” (internal quo- tation marks omitted)). As relevant, Texas moved to dismiss the federal inverse- condemnation claim, arguing that a plaintiff has no cause of action arising directly under the Takings Clause. It con- tended that only Rev. Stat. § 1979, 42 U. S. C. § 1983, provides a vehicle to assert constitutional violations, and § 1983 does Page Proof Pending Publication not authorize claims against a State. DeVillier did not dis- pute that he intended to bring his federal claim directly under the Fifth Amendment. Instead, he responded that the Takings Clause is “self-executing,” which, he argued, means that the Clause itself provides a cause of action for just compensation. The District Court denied Texas' motion, concluding that a property owner may sue a State directly under the Takings Clause. The Court of Appeals disagreed. In a one-paragraph opinion, it “h[eld] that the Fifth Amendment Takings Clause as applied to the states through the Four- teenth Amendment does not provide a right of action for takings claims against a state.” 53 F. 4th 904 (CA5 2023) (per curiam). We granted certiorari to decide whether a property owner may sue for just compensation directly under the Takings Clause. 600 U. S. ––– (2023). We now vacate and remand for further proceedings. Cite as: 601 U. S. 293 (2024) 291

Opinion of the Court

II The Takings Clause of the Fifth Amendment states: “nor shall private property be taken for public use, without just compensation.” We have explained that “a property owner acquires an irrevocable right to just compensation immedi- ately upon a taking” “[b]ecause of `the self-executing charac- ter' of the Takings Clause `with respect to compensation.' ” Knick, 588 U. S., at 192 (quoting First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 315 (1987)). Texas does not dispute the nature of the substantive right to just compensation. This case pre- sents only a question regarding the procedural vehicle by which a property owner may seek to vindicate that right. Constitutional rights do not typically come with a built- in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in Page Proof Pending Publication cases arising under other sources of law, or asserted offen- sively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. § 1983. DeVillier ar- gues that the Takings Clause is an exception. He relies on First English Evangelical Lutheran Church of Glendale v. County of Los Angeles to assert that the just-compensation requirement of the Takings Clause is “self-executing” and that “[s]tatutory recognition [is] not necessary” for takings claims because they “are grounded in the Constitution itself.” 482 U. S., at 315 (internal quotation marks omitted). In other words, the Takings Clause creates by its own force a cause of action authorizing suits for just compensation. The cases that DeVillier cites do not directly confront whether the Takings Clause provides a cause of action for just compensation. First English itself proceeded under a state-law cause of action. Id., at 313–314, n. 8. DeVillier also points to several takings cases where property owners sought injunctions to prevent the Government from interfer- 292 DeVILLIER v. TEXAS

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ing with their property rights, such as by obtaining ease- ments or imposing zoning regulations. See Dohany v. Rog- ers, 281 U. S. 362, 364 (1930); Delaware, L. & W. R. Co. v. Morristown, 276 U. S. 182, 188 (1928); Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 384 (1926); Cuyahoga River Power Co. v. Akron, 240 U. S. 462, 463 (1916); Norwood v. Baker, 172 U. S. 269, 276 (1898). Because none of those cases relied on § 1983 for a cause of action, he reasons that those cases must have proceeded directly under the Consti- tution. But, the mere fact that the Takings Clause provided the substantive rule of decision for the equitable claims in those cases does not establish that it creates a cause of action for damages, a remedy that is legal, not equitable, in nature.2 That said, the absence of a case relying on the Takings Clause for a cause of action does not by itself prove there is no cause of action. It demonstrates only that constitutional concerns do not arise when property owners have other ways to seek just compensation. Our precedents do not cleanly Page Proof Pending Publication answer the question whether a plaintiff has a cause of action arising directly under the Takings Clause. But, this case does not require us to resolve that question. The question presented asks what would happen if a prop- erty owner had no cause of action to vindicate his rights under the Takings Clause. It would be imprudent to decide that question without satisfying ourselves of the premise that there is no cause of action. Our constitutional system assigns to state offcers “a coordinate responsibility to en- force [the Constitution] according to their regular modes of procedure.” Howlett v. Rose, 496 U. S. 356, 367 (1990). It therefore looks to “[t]he good faith of the States [to] provid[e] an important assurance that `this Constitution, and the Laws

2 The signifcance of DeVillier's equitable cases is further obscured by fundamental changes to the law of equity that postdate those decisions. Compare Fed. Rule Civ. Proc. 2 with A. Bellia & B. Clark, The Original Source of the Cause of Action in Federal Courts, 101 Va. L. Rev. 609, 653 (2015). Cite as: 601 U. S. 293 (2024) 293

Opinion of the Court

of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land.' ” Alden v. Maine, 527 U. S. 706, 755 (1999) (quoting U. S. Const., Art. VI; original alterations omitted). We should not “assume the States will refuse to honor the Constitution,” including the Takings Clause, because “States and their offcers are [also] bound by obligations imposed by the Constitution.” 527 U. S., at 755. The premise that Texas left DeVillier with no cause of ac- tion to obtain the just compensation guaranteed by the Tak- ings Clause does not hold. Texas state law provides a cause of action by which property owners may seek just compensa- tion against the State. As Texas explained at oral argu- ment, its state-law inverse-condemnation cause of action pro- vides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause. Tr. of Oral Arg. 38; id., at 40 (citing Baytown v. Schrock, 645 S. W. 3d 174 (Tex. 2022)); Tr. of Oral Arg. 59–60. And, although Texas as- Page Proof Pending Publication serted that proceeding under the state-law cause of action would require an amendment to the complaint, it also as- sured the Court that it would not oppose any attempt by DeVillier and the other petitioners to seek one. Id., at 41, 61, 64. This case therefore does not present the circum- stance in which a property owner has no cause of action to seek just compensation. On remand, DeVillier and the other property owners should be permitted to pursue their claims under the Takings Clause through the cause of action available under Texas law. III The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Reporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions Page Proof Pending Publication for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

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