A Devillier v. Texas decisionmay have implications forTrump v. Anderson
UPDATED January 26, 2024Devillier v. Texas seeks to clarify the self-executing nature of the Takings Clause
BACKGROUND 
• Texas built a dam next to property owned by Richard Devillier to prevent flood waters from permeating the nearby highway; instead, the damming flooded and caused damage to Devillier’s and others’ properties
• Devillier filed a lawsuit in state court claiming that Texas owed them compensation under the Fifth Amendment’s Takings Clause; Texas removed the case to federal court where the motion was initially denied, but later the Fifth Circuit court reversed the lower court’s decision
• Devillier has since petitioned the US Supreme Court for review of the Fifth Circuit’s decision
KEY QUESTION
The 5th Amendment’s Takings Clause
Can those whose property is taken
without compensation seek redress
under the self-executing takings clause
of the Fifth Amendment without cause
of action affirmed by the legislature?
NEXT STEPS
Arguments to the Supreme Court were
heard on January 16, 2024
An opinion is TBD
Under the 5th Amendment, Texas must provide compensation for the
taking of the land (via flooding) without further legislative action because
the Takings Clause is self-executing
Defendant argument
Only if Congress passes a statute authorizing a lawsuit can one be filed
FIFTH CIRCUIT COURT RULING
The Fifth Circuit Court ruled that the Devillier case lacks a federal cause of action to sue for takings against state governments
Voters in Colorado challenged Trump’s 2024 eligibility to seek the presidency
BACKGROUND 
- Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit on behalf of six Colorado voters to have former President Trump removed from the 2024 ballot
- The claim is based on Section 3 of the 14th Amendment, which bars from public office anyone who “engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof” after
swearing under oath to support the Constitution
KEY QUESTIONS 
14th Amendment ballot eligibility
Was the Jan. 6 Capitol riot an insurrection?
If an insurrection, did then-President Trump incite the insurrection through social media and his speech?
Do the courts have the authority to enforce
section 3 of the 14th amendment?
Does section 3 of the 14th amendment apply to the presidency?
Plaintiff argument
The plaintiffs argued that Trump incited the January 6 attack on the Capitol and should be removed from the state’s primary ballot under Section 3 of the 14th Amendment
Defendant argument
Trump’s defense argued that he took precautions on January 6 to ensure a non-violent rally, using the word “peace” multiple times that day, and that this lawsuit is another example of political weaponization against Trump
FIRST RULING
Colorado District Judge Sarah B. Wallace found that Trump did “engage in insurrection” on January 6, but ruled that ballot eligibility based on Section 3 of the 14th Amendment did not apply to him as the clause specifically lists all federal elected offices except the presidency
Colorado’s Supreme Court overturns Denver’s district judge’s ruling; US Supreme Court to hear case next
COLORADO IS THE FIRST STATE TO SUCCESSFULLY APPLY THE 14TH AMENDMENT TO TRUMP
- In a 4-3 ruling, the Colorado Supreme Court ruled that Trump engaged in insurrection on Jan. 6, thus
making him ineligible to appear on the 2024 presidential ballot under the 14th amendment - The ruling requires the CO secretary of state to exclude Trump’s name from the GOP primary ballot; there is no mention of the general election and only applies to the state of Colorado
- The three dissenting justices cited that their dissent comes from procedural grounds, not whether Trump engaged in insurrection; they believe the courts have “overstepped their authority” in the matter
COLORADO SUPREME COURT KEY FINDINGS
CO state law does allow voters to challenge Trump’s eligibility under the 14th amendment
CO courts can enforce the 14th amendment insurrectionist ban without action from Congress
The 14th amendment insurrectionist ban does apply to the presidency
The Jan. 6th Capitol attack was an insurrection and Trump did engage in said insurrection
Trump’s speech “inciting” the Jan. 6th insurrectionist
PRESSURE ON THE US SUPREME COURT 
- On Jan. 5, 2024, the US Supreme Court agreed to review the ruling; oral arguments are set for February 8, 2024
- SCOTUS justices have been facing intense criticisms regarding past rulings, such as overturning Roe v. Wade and ending affirmative action, and questions on ethics brought to light by a NY Times investigation into Clarence Thomas
- Further, SCOTUS has yet to decide on two other cases relating to Trump’s obstruction of justice charge regarding Jan. 6 and whether he is immune from criminal prosecution regarding actions he took while president
Both cases examine the self-executing nature of specific constitutional provisions
What are self-executing clauses?
Self-executing clauses are when clauses automatically create enforceable rights upon signature sans additional steps, files, or processes.
Devillier v. Texas
Questions the self-executing nature of the Fifth Amendment’s Takings Clause:
Does the Takings Clause automatically grant property owners the right to sue for just compensation, or is there a need for Congress or state legislatures to enact specific laws clarifying procedures for such lawsuits?
Trump v. Anderson
Questions the self-executing nature of Section 3 of the 14th Amendment:
Does Congress need to enact specific
legislation clarifying procedures for determining insurrection, or do state officials have an independent duty to prevent Trump from obtaining ballot access?
FURTHER COMPARISON
- Plaintiffs in both cases argue that the constitutional provisions are self-executing; in Devillier, this would indicate that specific lawsuits are not necessary to invoke the Takings Clause of the 5th Amendment; in Trump v. Anderson, it would indicate that Section 3 imposes a duty on state officials to disqualify Trump from standing office
- Defendants in both cases argue the need for clarifying legislation in enforcing these constitutional provisions
- Both cases refer to the same underlying question: do constitutional provisions automatically create actionable rights and duties or is additional legislation required to give effect to these provisions?
IMPLICATIONS
The Devillier case may offer insight into how the Supreme Court may rule regarding the notion of self-executing clauses,
the role of state legislatures in constitutional challenges, and due process in Trump v. Anderson
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