The law of constitutional remedies is tightly coupled with the law of equity. In the early twentieth century, suits in equity became the “normal mechanism” through which constitutional rights were protected against violation by government officials.1 From the 1950s to the 1970s, the structural injunction — which emerged as a tool to combat segregation — expanded equity’s role, giving courts broad discretion and flexibility to remedy “social condition[s] that threaten[ed] important constitutional values.”2 But that discretion was attacked as unprincipled, and the structural injunction fell out of favor.3 In 1999, Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc.4 presented alternative visions of equity. At times, the Court seemed to embrace a broader conception, acknowledging federal courts’ “general equitable powers.”5 At others, it described equity rigidly, stating that federal courts have no “power to create remedies previously unknown to equity jurisprudence.”6 In the decades since Grupo, the Court has hewed to the latter description, constraining the remedial flexibility of federal courts.7 Last Term, in DeVillier v. Texas,8 the Court considered “whether a property owner may sue for just compensation directly under the Takings Clause.”9 The Court ultimately declined to reach the question presented10 and did not discuss the possibility of equitable relief for the alleged constitutional violation. This comment explores how the Court might instead have applied equity’s traditional principles — and how that approach contrasts with the Court’s narrowing view of equity and constitutional remedies.
DeVillier began with what looked like a run-of-the-mill takings claim. To preserve an evacuation route during heavy rainfall, Texas built a barrier along the median of Interstate 10 (I-10) just east of Houston.11 The barrier “effectively created a dam.”12 I-10 runs east to west across the state, and stormwater in the area drains north to south (toward the Gulf of Mexico).13 The barrier did its job — during Hurricane Harvey and Tropical Storm Imelda, it held water north of the highway, leaving the southern half clear.14 But as a result, property north of the barrier was flooded.15 Richard DeVillier and forty-five other property owners sued Texas in state court, alleging that the construction of the barrier and subsequent flooding constituted a taking under the Texas and U.S. Constitutions.16 At this point, the case looked routine — government flooding of property through construction of a dam is a classic takings fact pattern.17
But Texas had other ideas. It removed to the Southern District of Texas, asserting federal question jurisdiction over the Fifth Amendment claim, and then immediately moved to dismiss that claim.18 Texas pointed out that 42 U.S.C. § 1983, which provides a cause of action for alleging constitutional violations, does not permit suits against states.19 Without § 1983, Texas argued, the plaintiffs had no cause of action.20 And with no cause of action, the Fifth Amendment claim was dead in the water because “[a] claim for a constitutional violation against the States . . . cannot arise directly under the Constitution.”21 The district court disagreed.22 The assigned magistrate judge called Texas’s argument “pretzel logic” and raised the intuitive concern: Some plaintiffs would have no remedy for their constitutionally guaranteed right.23 He cited First English Evangelical Lutheran Church of Glendale v. County of Los Angeles24 for the proposition that the Fifth Amendment Takings Clause is “self-executing,” and inherently permits suits for just compensation “when the government takes private property.”25 The district court adopted the magistrate’s report, denied Texas’s motion, and certified its order for interlocutory appeal.26
The Fifth Circuit vacated, writing that the “Takings Clause . . . does not provide a right of action for takings claims against a state.”27 The per curiam opinion was just three sentences long.28 It remanded the case to the district court, apparently to proceed with only the state claim.29 After a failed vote for rehearing en banc, the judges provided more reasoning. Judges Higginbotham and Higginson (both on the original panel) wrote concurrences in the denial of rehearing, and Judge Oldham wrote a dissent.30
Judge Higginbotham’s concurrence made the case that “service to federalism” weighed against finding a federal cause of action — that states can and should be trusted to protect the U.S. Constitution.31 Because the Fifth Amendment involves “an amalgam of state and federal law,” there is value in having state courts decide federal takings claims, with decisions still ultimately reviewed by the U.S. Supreme Court.32 Judge Higginbotham also argued for deference to the legislative branch — if Congress wanted to include a cause of action against states in § 1983, it could have.33 He concluded that finding a cause of action was “above our paygrade.”34 Judge Higginson’s concurrence expanded on the separation of powers concern.35
Judge Oldham’s dissent sharply criticized the panel’s decision, arguing that it foreclosed federal takings claims against states.36 Eleventh Amendment sovereign immunity might protect states against federal takings claims in federal court.37 But by removing a case, a state chooses federal court, which is treated as a waiver of that immunity.38 Now, state defendants could simply copy Texas’s maneuver — remove federal takings cases, and then move to dismiss for want of a cause of action.39 Judge Oldham identified an irony: Texas asserted federal question jurisdiction, but then argued that there was no federal claim to begin with.40 In his view, there was either a federal question and a federal cause of action, or neither.41 He argued the court should have granted rehearing to investigate the existence of a cause of action, citing both Founding-era history and First English.42
The Supreme Court granted certiorari to answer the question debated by the courts below: “[W]hether ‘a person whose property is taken without compensation [may] seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action.’”43 But it declined to reach the question after a surprise at oral argument: Texas’s Solicitor General conceded that Texas inverse condemnation law provided a cause of action for both state and federal takings claims.44
Justice Thomas wrote for a unanimous Court.45 “Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement,” he explained, and it was unclear that the Takings Clause was an exception.46 Justice Thomas distinguished First English, which “itself proceeded under a state-law cause of action.”47 He then noted that DeVillier involved a legal remedy.48 Past cases where plaintiffs sought an injunction were therefore irrelevant: “[T]he 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.”49 Despite his skepticism, he acknowledged that “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.”50
Ultimately, Texas’s concession proved critical. Justice Thomas emphasized that states also bear a responsibility to “honor the Constitution.”51 Here, Texas law provided a cause of action through which plaintiffs could vindicate their federal constitutional right, so there was no need for the Court to answer the Takings Clause cause of action question.52 The Court remanded with direction: The plaintiffs “should be permitted to pursue their claims under the Takings Clause through the cause of action available under Texas law.”53 In an interesting wrinkle, the Court did not specify which court should permit the plaintiffs to do so. Judge Oldham’s hypothesized challenge to federal question jurisdiction suggested remand to state court might be appropriate.54 But the Court’s language (“under the Takings Clause”) perhaps implies that there is “federal ingredient” jurisdiction over a state claim where the federal Takings Clause provides the rule of decision.55
DeVillier’s central dictum — that a legal cause of action cannot be inferred from the right to sue for equitable relief — was sound.56 But the Court did not address an important aspect of the question presented, raised by Justice Kagan at oral argument: that plaintiffs might be authorized to sue in equity for just compensation57 directly under the “Takings Clause even if the legislature has not affirmatively provided them with a cause of action.”58 DeVillier’s fact pattern illustrates how courts could apply equity’s traditional principles in cases involving alleged violations of constitutional rights, and how that approach contrasts with the Court’s rigid view of equity and constitutional remedies.
The standard remedy for a taking is damages.59 To obtain relief, plaintiffs must therefore identify a cause of action, or “a legal entitlement to sue,” typically provided by statute or common law (here, perhaps, by the Fifth Amendment).60 But there is a “longstanding tradition” of plaintiffs seeking equitable relief from constitutional violations with no such authorization.61 The DeVillier plaintiffs referenced a line of cases in that tradition, where plaintiffs sought to enjoin the government from taking their property with no statutory cause of action.62
At oral argument, Justice Kagan raised the possibility that just compensation under the Takings Clause might be described as an equitable remedy too.63 The Takings Clause right can be framed as a right to compensation or a right to exclude (or both).64 Justice Kagan utilized the former: “[T]he state has a right to take . . . property,” but it must pay compensation when it does so.65 Under that framing, the constitutional violation alleged by the DeVilliers was not the flooding of their property, but Texas’s “ongoing” withholding of compensation.66 The remedy they sought, then, was not damages as substitution for a “completed” wrong, but enforcement of Texas’s “present obligation” to pay just compensation — the sort of specific, compelling of action associated with equity.67
Though the plaintiffs presented no historical evidence of equitable just compensation,68 the remedy is plausible as an application of the principles of equity. Fiduciary law provides an analogue. In an accounting for profit, an equity court orders the defendant (the fiduciary) to pay to the plaintiff (the beneficiary) profits that they have wrongfully kept for themselves.69 The result looks like damages — a payment of money — but the “remedy is in essence requiring the fiduciary, under judicial compulsion, to perform [their duty].”70 Similarly, Justice Kagan suggested that a court acting in equity might compel Texas to perform its duty to pay compensation.71 Professor Samuel Bray describes the “performance-requiring attribute” of fiduciary remedies as “characteristic of equity” — specifically, the maxim “[e]quity regards as done that which ought to be done.”72
And DeVillier’s fact pattern is one where an equity court might traditionally have invoked that maxim. The principles of equity were historically united as a function rooted in Aristotle’s epieikeia: “[A] rectification of law where law is defective because of its generality.”73 Professor Henry Smith explains that formal law, characterized by general ex ante rules, can fail to achieve its objectives in situations involving “a high degree of variability and uncertainty.”74 Equity acts as a “corrective.”75 It operates ex post, “employ[ing] holistic analysis and emphasiz[ing] substance over form.”76 One of equity’s classic roles is to correct for opportunistic behavior, by definition difficult to control through ex ante rules because opportunists understand and exploit the law “against its purpose.”77 The maxim “equity regards as done that which ought to be done” describes how equity “combat[s] opportunism by undoing it directly,” requiring a party that is “under an obligation to act” to do so.78 Texas’s maneuver to avoid its constitutional obligation certainly looked like opportunism, inequitable behavior that equity might “undo[].”
But equity’s limiting principles would weigh against the plaintiffs. Because equity necessarily involves flexibility and discretion,79 it developed limits to protect against abuse.80 One is that equity is “exceptional,” available only to “supplement[] the law” in the limited situations when “law falls short.”81 Plaintiffs seeking equitable relief must therefore show they have “no adequate remedy at law.”82 After Texas’s concession at oral argument, there clearly was an adequate remedy at law: damages under state inverse condemnation law.83
The Court reached the same result that the principles of equity would have led to — it referred the plaintiffs to their remedy at law.84 But the Court did not even entertain the possibility of an equitable just compensation remedy; instead, its language continued to trend toward a narrower view of equity and constitutional remedies.
In recent years, the Court has constrained equity’s remedial flexibility through a history-based test: A remedy is available only if a match can be identified from “the days of the divided bench.”85 And the Court’s recent rhetoric indicates another kind of constraint may be in store — on when plaintiffs are authorized to sue for equitable relief from constitutional violations.86 In DeVillier, Justice Thomas wrote: “Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose.”87 It is possible to read those sentences to apply to only legal remedies. But Justice Thomas’s careful wording suggests he believes otherwise.
The source of the right to sue for equitable relief from constitutional violations — recognized in Ex parte Young88 — is debated. A traditional explanation from Hart and Wechsler is that the right is inherent in the Constitution.89 But that justification appears to be in jeopardy.90 In Armstrong v. Exceptional Child Center, Inc.,91 Justice Scalia described “[t]he ability to sue” for Ex parte Young injunctions as a “creation of courts of equity . . . reflect[ing] a long history of judicial review of illegal executive action, tracing back to England.”92 A continuation of that logic might cabin Ex parte Young’s holding to authorization to sue for antisuit injunctions, justified only because that precise sort of authorization existed prior to 178993 — and a possible implication might be that there is no freestanding right to sue for equitable relief from constitutional violations.94 Scholars and judges who subscribe to this reasoning describe the distinction as “offensive” versus “defensive” or “sword” versus “shield.”95 There is a historical right to sue for a “defensive” antisuit injunction, but no general authorization to “offensively” assert constitutional rights. The Court has never explicitly embraced this view, and it did not do so in DeVillier.96 But Justice Thomas’s language inched closer: Constitutional rights are “asserted offensively pursuant to an independent cause of action designed for that purpose.”97
Equity’s traditional principles present an alternative path.98 Professor Bray explains that over time, patterns (or principles) emerged in when and how equity courts granted relief.99 Those principles made up a body of general law.100 But because of equity’s distinct function, its principles did not precisely define ex ante rights, duties, and rules in the way that the common law does; instead, they guided when and how equity should intervene when “law fail[ed]” in unpredictable ways.101 “Getting into equity” therefore required neither formal authorization to sue (a cause of action) nor identification of exact precedent.102 Instead, plaintiffs had to provide a “persuasive account of how [they] wanted equity to do something that was the sort of thing that equity does.”103 Access was controlled and remedies granted through “the cautious exercise of ample discretion” by the judge, who applied equity’s principles — including its limiting principles.104
Extracting formal, ex ante rules from Founding-era history — both about what equitable remedies are available and when plaintiffs are authorized to sue for them — forces a square peg into a round hole.105 And the approach is not compelled by originalism.106 Courts seeking to understand what the law of equity was at the Founding could instead ask what principles equity courts traditionally applied. The DeVillier fact pattern illustrates the contrast. The Court’s current direction seems to bluntly foreclose equitable just compensation. But a court applying equity’s traditional principles might have granted the remedy if Texas had not made its surprise concession. The plaintiffs had an account of opportunistic behavior, and the remedy they sought fit an equitable pattern. And the contrast has implications that extend beyond the Takings Clause. Professor Richard Fallon suggests equitable remedies may now be unavailable in situations mirroring Whole Woman’s Health v. Jackson107: where a state enacts a functionally unconstitutional law that is specifically designed to avoid legal challenges.108 Such laws would not authorize official enforcement action precisely so that challenges to them would not fall within the “long history of judicial review of illegal executive action.”109 But they represent paradigmatic opportunism — the exact sort of behavior that equity’s traditional principles counter.