{"id":61589,"date":"2025-08-03T14:08:42","date_gmt":"2025-08-03T19:08:42","guid":{"rendered":"https:\/\/fourthamendment.com\/?p=61589"},"modified":"2025-08-03T14:08:42","modified_gmt":"2025-08-03T19:08:42","slug":"reason-federal-appeals-court-rules-takings-clause-creates-cause-of-action-even-without-additional-federal-or-state-legislation","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=61589","title":{"rendered":"Reason: Federal Appeals Court Rules Takings Clause Creates Cause of Action Even Without Additional Federal or State Legislation"},"content":{"rendered":"\n

Reason: Federal Appeals Court Rules Takings Clause Creates Cause of Action Even Without Additional Federal or State Legislation<\/a> by Ilya Somin (\u201cVictims of uncompensated takings can sue directly under the Constitution. The case involved uncompensated seizure of horses.\u201d). Fulton v. Fulton County Board of Commissioners<\/a>, 22-12041 (11th Cir. July 31, 2025):<\/p>\n\n\n\n\n\n\n\n

This case involves the \u201cjust compensation\u201d 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 \u201cjust compensation\u201d 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.<\/p>\n\n\n\n

The problem: Congress has not provided him with a cause of action to secure \u201cjust compensation\u201d in federal court. Fulton initially tried to bring an action under 42 U.S.C. \u00a7 1983. That statute allows suits against municipalities who, through official policies or customs, violate the Constitution. See Monell v. Dep\u2019t 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\u2019t proceed under that statute\u2014even though the Takings Clause doesn\u2019t require a plaintiff to clear that bar to be entitled to \u201cjust compensation.\u201d<\/p>\n\n\n\n

So Fulton seeks a plan B. He asks to amend his complaint to sue directly under the Takings Clause itself.<\/p>\n\n\n\n

Whether the Takings Clause contains a cause of action that allows a litigant to recover \u201cjust compensation\u201d in federal court presents an open question. In DeVillier v. Texas, the Supreme Court confirmed that its \u201cprecedents do not cleanly answer the question \u2026.\u201d 601 U.S. 285, 292 (2024). Yet the Court also confirmed that \u201cthe 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.\u201d Id. Now, after careful review of the text, structure, and history of the Constitution, we conclude that the Takings Clause does directly authorize suit.<\/p>\n\n\n\n

The Dissent responds by saying we are \u201ccreat[ing] a new right of action\u201d and leaving \u201cconstitutional wreckage in the wake.\u201d 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\u2019s promise of \u201cjust compensation\u201d into nothing more than a Tantalus-type taunt. Most respectfully, we don\u2019t think that\u2019s \u201cjudicial humility,\u201d see id. at 35; we
think it\u2019s 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.<\/p>\n\n\n\n

The Framers of the Fifth and Fourteenth Amendments provided a real remedy in \u201cjust compensation\u201d for government takings. They guaranteed the ability to recover \u201cjust compensation\u201d directly under the Constitution. So we hold that Fulton\u2019s proposed amendment to his complaint is not futile.<\/p>\n","protected":false},"excerpt":{"rendered":"

Reason: Federal Appeals Court Rules Takings Clause Creates Cause of Action Even Without Additional Federal or State Legislation by Ilya Somin (\u201cVictims of uncompensated takings can sue directly under the Constitution. The case involved uncompensated seizure of horses.\u201d). Fulton v. … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-61589","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/61589","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=61589"}],"version-history":[{"count":1,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/61589\/revisions"}],"predecessor-version":[{"id":61590,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/61589\/revisions\/61590"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=61589"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=61589"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=61589"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}