Supreme Court hears arguments on whether Fifth Amendment itself creates a federal cause of action for just compensation

WASHINGTON — The Supreme Court on Friday heard competing views over whether the Fifth Amendment, by its own force, supplies a federal cause of action allowing property owners to obtain money damages for a taking.

Mister McNamara, counsel for the petitioners, told the justices that the Fifth Amendment "imposes an explicit duty to pay money," citing this Court’s First English decision as holding that just compensation is a mandatory remedy that courts may enforce. "First English says that the just compensation remedy is mandatory," McNamara said, arguing that when jurisdictional and pleading obstacles are removed, courts must be able to order payment for an ongoing taking rather than only provide retrospective or state-law remedies.

The argument centered on two competing visions. Petitioners said the Takings Clause creates an entitlement to compensation enforceable in court; opposing counsel said the clause specifies a condition for lawful government action but does not itself prescribe a federal damages remedy. Texas’s counsel argued the petitioners could seek compensation under Texas law and that the Court should not read the Constitution as supplying a freestanding damages action. "This appeal thus isn't about substantive rights. All petitioners had to do was use Texas's cause of action," Texas counsel said during argument.

The U.S. government, appearing as amicus on certain points, told the Court that the Fifth Amendment "does not, of its own force, create a cause of action" for money judgments against the sovereign and emphasized the relevance of statutory mechanisms such as the Tucker Act and related money-mandating inquiries when plaintiffs seek payment from government treasuries.

Justices probed historical practice and the early federal courts’ limited jurisdiction, asking whether nineteenth-century reliance on private bills and common-law forms undermines the claim that the Constitution itself supplied a judicial cause of action from the founding. Petitioners countered that historical practice reflected forum and jurisdictional limits, not an absence of entitlement to compensation.

The bench also questioned the practical consequences of affirming or rejecting a freestanding federal cause of action, including whether removal to federal court could extinguish a federal takings claim and how state-court remedies would operate if owners are left to pursue compensation only under state law. Texas counsel said removal was used to consolidate multiple class actions and that state courts already recognize forms of relief for takings under state law.

In rebuttal, Mister McNamara cautioned that rejecting a constitutional cause of action would leave property rights vulnerable and urged the Court to preserve the remedial force First English has been read to supply in many state and federal decisions. After argument the case was submitted for decision.

The Court’s decision will address whether a property owner may sue a state in federal court for money damages under the Fifth Amendment itself, or whether such claims must proceed under state causes of action or specific statutory vehicles. No opinion was announced at the argument’s end; the case was submitted.