Aerial photo taken on September 1, 2017, shows flooded houses after Hurricane Harvey hit Houston, Texas. | Yin Bogu/Xinhua News Agency via Getty Images
A core issue raised in the Colorado case seeking to disqualify Trump from the presidency is also present in a much more obscure case being argued next week.
On the surface, the issues presented by Devillier v. Texas — a Supreme Court case brought by Texas landowners who claim the state should compensate them for flooding on their land — have nothing whatsoever to do with Donald Trump, or the looming question of whether the insurrectionist former president is allowed to run again for the presidency.
Dig just an inch below the surface, however, and the Devillier case, which will be argued next Tuesday before the justices, raises strikingly similar questions to some of the core issues in Trump v. Anderson, the Supreme Court case asking whether Trump should be removed from the 2024 presidential ballot.
So anyone seeking a preview of how the Court might rule in Trump, which won’t be argued until next month, would be wise to pay close attention to the argument in Devillier.
One of the core questions in Trump is whether Section 3 of the 14th Amendment, a provision that disqualifies former high-ranking public officials from holding office in the future if they “have engaged in insurrection or rebellion” against the Constitution, is “self-executing” — meaning that it takes effect automatically, regardless of whether Congress has enacted legislation laying out what procedures should be used to determine if Trump did, in fact, engage in an insurrection.
If Section 3 is self-executing, that means that the Constitution imposes an independent duty on state officials to prevent Trump from obtaining office again. If it is not, then the question of whether Trump is disqualified from the presidency because of his attempt to overthrow the 2020 presidential election is, at least, much more complicated — and Trump is much more likely to prevail in his effort to appear on the 2024 ballot.
Devillier, meanwhile, asks whether a separate provision of the Constitution — the Fifth Amendment’s “takings clause,” which provides that the government may not take someone’s private property for public use “without just compensation” — is also self-executing.
The landowner plaintiffs in Devillier argue that the takings clause is, in fact, self-executing. They also argue that, if it is, then they may sue to demand compensation because the state of Texas allegedly caused their lands to be flooded, regardless of whether any federal or state law authorizes such a lawsuit. Texas, meanwhile, argues that such suits may only proceed according to a state or federal law — even though the takings clause itself already requires Texas to compensate certain landowners, regardless of what Texas state law has to say about the matter.
The Court announced that it would hear Devillier last September, nearly two months before the Colorado Supreme Court handed down its first-in-the-nation ruling that Trump must be removed from that state’s ballot. So it’s unlikely that the justices agreed to hear the Devillier case because they thought it would inform their analysis of the Trump case.
Still, the parallels between the two cases are difficult to ignore.
Who is allowed to sue in order to enforce the Constitution?
To a non-lawyer, the idea that the Constitution might announce a nationwide rule that cannot be enforced through lawsuits is likely to be counterintuitive. The Supreme Court, after all, has maintained for more than two centuries that “it is emphatically the duty of the Judicial Department to say what the law is.” So why isn’t it the judiciary’s duty to say whether the Constitution, which is the highest law in the United States, requires certain landowners to be compensated — or if it requires Trump to be removed from the 2024 presidential ballot?
But the current Supreme Court — or, at least, its Republican appointees — is quite hostile to the idea that private parties can sue to enforce the Constitution, absent a statute that authorizes them to do so. In Hernández v. Mesa (2020), for example, the Court’s Republican majority held that the parents of a 15-year-old Mexican boy may not bring a constitutional lawsuit against a US Border Patrol officer who fatally shot their son in the face.
The Court’s opinion in Hernández spoke in expansive terms about the limits on such lawsuits. “A federal court’s authority to recognize a damages remedy” against a federal official, a majority of the justices reasoned, “must rest at bottom on a statute enacted by Congress” — even if the official’s actions were already forbidden by the Constitution.
There is a logic underlying this counterintuitive conclusion that something can simultaneously violate the Constitution, but also that the Constitution may not be enforceable in court. As Texas argues in its Devillier brief, judges have to know a whole lot more than what a state’s obligations are under the Constitution before they can hear a lawsuit alleging that those obligations were violated.
In a takings case, for example, the judge hearing that case must know “how long the limitations period should be” (that is, at what point should a case be dismissed because a plaintiff waited too long to bring it), “what pleading rules apply,” and whether a state may assert a defense such as sovereign immunity. These sorts of questions are typically answered by state or federal statutes.
Moreover, while cases like Hernández take an especially narrow view of who can sue to enforce the Constitution, Texas’s concern that courts need to rely on an act of the legislature to tell them how to conduct constitutional litigation is not a new concern. Indeed, it is one of the central concerns raised by In re Griffin (1869), one of the few federal court decisions interpreting Section 3 of the 14th Amendment.
Griffin involved a Virginia judge who, while serving in the state legislature, voted to provide “men, money and supplies to support Virginia and the Confederate States, in the war then flagrant with the United States.” The question was whether he was disqualified from serving as a judge under Section 3, because he previously engaged in insurrection or rebellion against the United States.
But Chief Justice Salmon Chase, who authored Griffin, dodged the question of whether this judge should be removed from office. Though the judge may be guilty of rebellion, Chase reasoned, his “guilt can only be ascertained, the identity of the individual can only be made certain, the penalty applied to that particular individual, only by due process of law—i. e., trial, conviction and judgment.”
And, much as Texas now argues that an act of the legislature is required to tell courts how to conduct takings trials, Chase also argued that “legislation by congress is necessary” to determine what sort of process should be used to determine whether a particular individual violated Section 3 of the 14th Amendment. Thus, in the absence of such legislation, Section 3 may become unenforceable.
Griffin, it should be noted, was not a Supreme Court decision. In the mid-19th century, justices often heard ordinary cases as if they were lower court judges. So the decision is not binding on modern-day justices hearing the Devillier and Trump cases. But, again, the parallels between the due process arguments raised by Chase in Griffin and the arguments raised by Texas in Devillier are fairly obvious.
And it’s worth reiterating that the idea that a provision of the Constitution may go unenforced because no one has passed a statute enabling its enforcement is controversial within the judiciary. Four justices, after all, dissented in Hernández.
But the Hernández majority’s skepticism toward allowing constitutional lawsuits, absent some kind of enabling statute, is also not new. As Griffin shows, judges have long worried that, absent a statute telling them how to conduct a particular proceeding, they may not be able to hear many constitutional challenges — even if that means that some constitutional violations may go unsanctioned.
Can a state statute render an unenforceable constitutional provision enforceable?
One question that also arises in the Trump and Devillier cases is whether a state legislature can pass a law laying out how a constitutional challenge should proceed in court, or whether, as Chase suggested in Griffin, a law permitting constitutional provisions to be enforced through lawsuits must come from Congress.
Texas, for what it is worth, does not contest that a state statute can authorize takings lawsuits. As it notes in its brief, the Texas Constitution also prohibits takings “without adequate compensation being made.” And state law allows takings lawsuits to proceed using a process known as “inverse condemnation.”
At multiple points in its brief, Texas seems to suggest that states are required to provide some sort of process to ensure that victims of governmental takings are duly compensated — the brief argues that “in the event of a taking, the Constitution requires compensation.”
But, while Texas appears to concede that its state law must provide some sort of process to resolve takings lawsuits, the specific nature of that process can matter a great deal. As Bob McNamara, a lawyer with the libertarian Institute for Justice who represents the Devillier plaintiffs, told me over email, Texas law is less favorable to takings plaintiffs than the rule that federal courts are likely to apply if his clients can sue directly under the takings clause.
The Devillier plaintiffs claim they are entitled to be compensated by the state after Texas built a highway barrier that acts as a “three-foot-high, impenetrable concrete dam,” which caused their land to flood during major storms. According to McNamara, “Texas says that for something to be a ‘taking’ under state law, state officials must have specifically intended to take particular property — they must have looked at a map and said, ‘Ah, yes, let’s flood Mr. DeVillier’s property.’”
By contrast, McNamara says, “the federal takings rule uses intent in the more ordinary sense— government officials are presumed to have intended the inevitable results of their actions.”
This question over just how much leeway states have to modify the process — and potentially even the substantive rules — used to determine whether a constitutional violation occurred also arises in the Trump case.
Recall that Chief Justice Chase argued in Griffin that “legislation by congress is necessary” to determine how Section 3 of the 14th Amendment should be enforced. Ordinarily, however, state legislatures are also permitted to enact laws permitting private lawsuits to enforce the federal Constitution, much as Texas enacted laws permitting takings plaintiffs to bring suits.
This distinction between acts of Congress and acts of a state legislature matter because, while Congress has not enacted a comprehensive statute laying out what qualifies as an “insurrection” and what process courts should use in Section 3 cases, Colorado does have a statute that allows private citizens to sue to remove ineligible candidates from the state ballot.
That said, this statute calls for a fairly truncated process, which, in the words of one of the dissenting justices in the Colorado Supreme Court, lacks “basic discovery, the ability to subpoena documents and compel witnesses, [and] workable timeframes to adequately investigate and develop defenses.” For this reason, Trump’s strongest argument against the Colorado Supreme Court decision removing him from the ballot is that he was denied due process — or, to put it another way, that the truncated process Colorado used to determine that he is disqualified was not adequate for such a monumental constitutional decision.
But, if Texas is allowed to pass a law that effectively waters down the rights of takings plaintiffs — permitting them to bring takings lawsuits, but only if they can show that state officials acted with a particular intent — then why doesn’t Colorado have similar leeway to decide how ballot disqualification lawsuits should proceed?
All of which is a long way of saying that, while the Devillier and Trump appear to be unrelated at first glance, the former case raises many of the same difficult questions raised by the later one. So if you are hoping to get a preview of how the Court may approach Trump, next week’s Devillier arguments are likely to, at the very least, offer a clue about how the justices will approach the former president’s disqualification case.