Reason: Federal Appeals Court Rules Takings Clause Creates Cause of Action Even Without Additional Federal or State Legislation

Reason: Federal Appeals Court Rules Takings Clause Creates Cause of Action Even Without Additional Federal or State Legislation by Ilya Somin (“Victims of uncompensated takings can sue directly under the Constitution. The case involved uncompensated seizure of horses.”). Fulton v. Fulton County Board of Commissioners, 22-12041 (11th Cir. July 31, 2025):

This case involves the “just compensation” remedy. Brandon Fulton alleges that Fulton County took his horses without justification and without paying for them. He asserts that the Fifth Amendment demands the County pay him “just compensation” for the taking of his property. See U.S. CONST. amend. V. So he seeks to sue to recover what he says the County owes him under the Constitution.

The problem: Congress has not provided him with a cause of action to secure “just compensation” in federal court. Fulton initially tried to bring an action under 42 U.S.C. § 1983. That statute allows suits against municipalities who, through official policies or customs, violate the Constitution. See Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 694 (1978). But because Fulton is unable to plead an official policy or custom under which the County took his horses, he can’t proceed under that statute—even though the Takings Clause doesn’t require a plaintiff to clear that bar to be entitled to “just compensation.”

So Fulton seeks a plan B. He asks to amend his complaint to sue directly under the Takings Clause itself.

Whether the Takings Clause contains a cause of action that allows a litigant to recover “just compensation” in federal court presents an open question. In DeVillier v. Texas, the Supreme Court confirmed that its “precedents do not cleanly answer the question ….” 601 U.S. 285, 292 (2024). Yet the Court also confirmed 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. It demonstrates only that constitutional concerns do not arise when property owners have other ways to seek just compensation.” Id. Now, after careful review of the text, structure, and history of the Constitution, we conclude that the Takings Clause does directly authorize suit.

The Dissent responds by saying we are “creat[ing] a new right of action” and leaving “constitutional wreckage in the wake.” Diss. Op. at 35. But its answer that the Takings Clause includes no direct cause of action ignores the original public meaning of the Clause and transforms the Constitution’s promise of “just compensation” into nothing more than a Tantalus-type taunt. Most respectfully, we don’t think that’s “judicial humility,” see id. at 35; we
think it’s judicial abdication. We have a duty to apply the Constitution as written. So we respectfully decline to read out of the Constitution the relief it expressly promises for taken property.

The Framers of the Fifth and Fourteenth Amendments provided a real remedy in “just compensation” for government takings. They guaranteed the ability to recover “just compensation” directly under the Constitution. So we hold that Fulton’s proposed amendment to his complaint is not futile.