Encouraging government lawyers to engage in the worst legal shenanigans

If the primary function of the United States Constitution is to delegate limited, bounded power to the federal government and protect the individual rights of Americans, then why do courts ever presume that government officials act in good faith? Especially when they so frequently try to avoid liability for violating individual rights. Particularly for owners seeking just compensation when the government takes their private property, evidence of such "good faith" is in short supply.

Consider the profoundly cynical gamesmanship in DeVillier v. Texas, decided by the Supreme Court on April 16. No one disputes that Texas built a highway barrier to redirect hurricane-driven floodwaters onto Richard DeVillier's and 120 others' properties. This was no small matter: the floodwaters displaced people from their homes, damaged businesses, ruined crops, killed livestock, and destroyed family heirlooms.

Since the Constitution requires government to pay for land it "takes" (the taking here was Texas using DeVillier's and other's land as a place to store stormwater), the property owners filed a lawsuit against Texas, in Texas's own state courts, seeking compensation for the taking under both the U.S. and Texas constitutions.

State attorneys, rather than engaging directly with the lawsuit, pursued a novel strategy to try to make the case disappear entirely. Because DeVillier filed suit under both the federal and state constitutions, Texas exercised its right to transfer the case to federal court.

But once the case was in federal court, Texas claimed that DeVillier couldn't sue directly under the federal Constitution's Takings Clause, nor could he invoke the federal Civil Rights Act because that law doesn't authorize lawsuits against states. The Fifth Circuit agreed, and tossed DeVillier's lawsuit, leaving him without any recourse to recover compensation from Texas.

The Supreme Court took up the case to resolve a longstanding question: when a state takes property but fails to pay compensation, do the owners need the legislature's permission to sue? But Texas didn't want to defend its sordid tactic that deprived property owners of any forum and changed its tune during oral arguments before the Court, stating that it had no problem with the case proceeding in the state court originally chosen by the property owners.

Because of this statement, the Supreme Court's decision didn't resolve the issue of whether property owners can, in fact, bring takings claims directly under the Constitution without invoking a statute specifically authorizing the lawsuit. But even though it left the big issue for the future, the Court plainly rejected Texas's remove-and-dismiss gamesmanship.

What a needless waste! Texas employed every possible maneuver to avoid a takings lawsuit and only when pressed at oral argument before the Supreme Court did the state's attorney shrug off its former positions as if to say, "My bad. No harm done."

But by permitting this about-face and construing it as a "good faith" effort to ensure state court resolution of the takings claims, the Court encourages government lawyers to engage in the worst legal shenanigans.

Texas transferred DeVillier's case to federal court in June 2020. Nearly four years later, DeVillier will be at last be permitted to litigate his case. For the endlessly deep pockets of the government, this delay is inconsequential. For real people whose property has been taken, the delay takes an enormous financial and mental toll.

Similarly, the government made a key strategic concession in Sheetz v. County of El Dorado, decided a few days before DeVillier. In Sheetz, the Court took the case to decide whether legislatively imposed fees attached to building permits are subject to the same constitutional review as administratively imposed fees attached to building permits.

The County vigorously opposed and advocated that legislatively imposed fees are not subject to such review.... until coming face to face with the Supreme Court. Then, seeing that the Constitution could not support such a distinction, the County conceded the case during oral argument, after which the Court described the parties as being in "radical agreement."

George Sheetz filed his lawsuit against the County in 2017. Seven years later, he can pursue the merits of his claim.

In both Sheetz and DeVillier, government officials and their lawyers put all their efforts into immunizing government actions from judicial review, apparently nervous about defending those actions on the merits. After years of needless delay -- as conceded by the same governments that created it in the first place -- the property owners in Sheetz and DeVillier now will exercise their long-awaited opportunity to seek vindication of their constitutional rights.

It's easy to understand that lawyers representing governments, officials, and bureaucrats feel the rush that accompanies zealous representation of their clients. But just as prosecutors have a duty to seek justice, not only convictions, the Supreme Court in Niz-Chavez v. Garland (2021) reminded other government lawyers -- and the government officials themselves -- to "turn square corners" with citizens when litigating to determine the scope of the government's power. Playing games with people's constitutional rights is unworthy of our government, and their counsel.