The law of constitutional remedies is tightly coupled with the law of equity. In the early twentieth century, suits in equity became the “normal mechanism” through which constitutional rights were protected against violation by government officials.1 From the 1950s to the 1970s, the structural injunction — which emerged as a tool to combat segregation — expanded equity’s role, giving courts broad discretion and flexibility to remedy “social condition[s] that threaten[ed] important constitutional values.”2 But that discretion was attacked as unprincipled, and the structural injunction fell out of favor.3 In 1999, Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc.4 presented alternative visions of equity. At times, the Court seemed to embrace a broader conception, recognizing federal courts’ “general equitable powers.”5 At others, it described equity rigidly, stating that federal courts have no “power to create remedies previously unknown to equity jurisprudence.”6 In the decades since Grupo, the Court has hewed to the latter description, constraining the remedial flexibility of federal courts.7 Last Term, in DeVillier v. Texas,8 the Court considered “whether a property owner may sue for just compensation directly under the Takings Clause.”9 The Court ultimately declined to reach the question presented10 and did not discuss the possibility of equitable relief for the alleged constitutional violation. This comment explores how the Court might instead have applied equity’s traditional principles — and how that approach contrasts with the Court’s narrowing view of equity and constitutional remedies.

DeVillier began with what looked like a run-of-the-mill takings claim. To preserve an evacuation route during heavy rainfall, Texas built a barrier along the median of Interstate 10 (I-10) just east of Houston.11 The barrier “effectively created a dam.”12 I-10 runs east to west across the state , and stormwater in the area drains north to south (toward the Gulf of Mexico).13 The barrier did its job — during Hurricane Harvey and Tropical Storm Imelda, it held water north of the highway, leaving the southern half clear.14 But as to result, property north of the barrier was flooded.15 Richard DeVillier and forty-five other property owners sued Texas in state court, alleging that the construction of the barrier and subsequent flooding constituted a taking under the Texas and U.S. Constitutions.16 At this point, the case looked routine — government flooding of property through construction of a dam is a classic takings fact pattern.17

But Texas had other ideas. It removed to the Southern District of Texas, asserting federal question jurisdiction over the Fifth Amendment claim, and then immediately moved to dismiss that claim.18 Texas pointed out that 42 U.S.C. § 1983, which provides a cause of action for alleging constitutional violations, does not permit suits against states.19 Without § 1983, Texas argued, the plaintiffs had no cause of action.20 And with no cause of action, the Fifth Amendment claim was dead in the water because “[a] claim for a constitutional violation against the States. . . cannot arise directly under the Constitution.”21 The district court disagreed.22 The assigned magistrate judge called Texas’s argument “pretzel logic” and raised the intuitive concern: Some plaintiffs would have no remedy for their constitutionally guaranteed right.23 He cited First English Evangelical Lutheran Church of Glendale v. County of Los Angeles24 for the proposition that the Fifth Amendment Takings Clause is “self-executing,” and inherently permits suits for just compensation “when the government takes private property.”25 The district court adopted the magistrate’s report, denied Texas’s motion, and certified its order for interlocutory appeal.26

The Fifth Circuit vacated the case, writing that the “Takings Clause…does not provide a right of action for takings claims against a state.”27 The per curiam opinion was only three sentences long.28 It remanded the case to the district court, apparently to proceed only on the state claim.29 After an unsuccessful vote to rehear en banc, the justices provided further reasoning. Justices Higginbotham and Higginson (both on the original panel) wrote concurring opinions in denying rehearing, and Justice Oldham wrote a dissent.30

Judge Higginbotham’s concurring opinion held that “service to federalism” weighed against finding a federal cause of action, that the states can and should be trusted to protect the U.S. Constitution.31 Because the Fifth Amendment involves “an amalgam of state and federal laws,” there is value in having state courts decide federal takings claims, with decisions still ultimately reviewed by the U.S. Supreme Court.32 Justice Higginbotham also argued for deference to the legislative branch: if Congress wanted to include a cause of action against the states in section 1983, it could have done so.33 He concluded that finding a cause of action was “above our pay grade.”34 The opinion Justice Higginson’s concurrence amplified the concerns about separation of powers.35

Judge Oldham’s dissenting opinion sharply criticized the panel’s opinion. The Eleventh Amendment to the U.S. Constitution bars federal law from being applied to states, arguing that it precluded federal takings lawsuits against states. 36 The Eleventh Amendment’s sovereign immunity could protect states against federal takings lawsuits in federal court. 37 But by striking out a case, a state chooses a federal court, which is considered a waiver of that immunity. 38 Now, state defendants could simply copy Texas’ maneuver: strike out federal takings cases and then move to dismiss for lack of a cause of action. 39 Judge Oldham identified an irony: Texas asserted federal question jurisdiction, but then argued that there was no federal claim to begin with. 40 In his view, there was either a federal question and a federal cause of action, or neither. 41 He argued that the court should have granted a rehearing to investigate the existence of a cause of action, citing both founding-era history and the court’s argument that the court should have granted a rehearing to investigate the existence of a cause of action. the first England.42

The Fifth Circuit dismissed the case, writing that the “Takings Clause…does not provide a right of action for takings claims against a state.”27 The per curiam opinion was only three sentences long.28 It remanded the case to the district court, apparently to proceed only with the state claim.29 After an unsuccessful vote to rehear en banc, the justices provided further reasoning. Justices Higginbotham and Higginson (both on the original panel) wrote concurring opinions denying rehearing, and Justice Oldham wrote a dissenting opinion.30

Judge Higginbotham’s concurring opinion held that “service to federalism” weighed against finding a federal cause of action, that the states can and should be trusted to protect the U.S. Constitution.31 Because the Fifth Amendment involves “an amalgam of state and federal laws,” there is value in having state courts decide federal takings claims, with decisions still ultimately reviewed by the U.S. Supreme Court.32 Justice Higginbotham also argued for deference to the legislative branch: if Congress had wanted to include a cause of action against the states in section 1983, it could have done so.33 He concluded that finding a cause of action was “above our pay grade.”34 The concurring opinion Judge Higginson’s dissenting opinion amplified concerns about separation of powers.35

Judge Oldham’s dissenting opinion Judge Oldham sharply criticized the panel’s opinion. The Eleventh Amendment to the U.S. Constitution prohibits federal law from applying to states, arguing that it precludes federal takings lawsuits against states.36 The Eleventh Amendment’s sovereign immunity could protect states against federal takings lawsuits in federal court.37 But by dismissing a case, a state chooses a federal court, which is considered a waiver of that immunity.38 Now, state defendants could simply copy Texas’ maneuver: dismiss federal takings cases and then move to dismiss for lack of a cause of action.39 Judge Oldham identified an irony: Texas asserted federal question jurisdiction, but then argued that there was no federal lawsuit to begin with. 40 In his view, there was either a federal question and a federal cause of action, or neither. 41 He argued that the court should have granted a new hearing to inquire into the existence of a cause of action, citing both the history of the founding era and the court’s argument that the court should have granted a new hearing to inquire into the existence of a cause of action in early England. 42

And DeVillier’s factual pattern is one where a court of equity might traditionally have invoked that maxim. Principles of equity were historically united as a function rooted in Aristotle’s epieikeia: “[A] rectification of the law when the law is defective because of its generality.”73 Professor Henry Smith explains that formal law, characterized by general ex ante rules, may fail to achieve its goals in situations involving “a high degree of variability and uncertainty.”74 Equity acts as a “corrector.”75 It operates ex post, “employing holistic analysis and emphasizing substance over form.”76 One of the classic roles of equity is to correct opportunistic behavior, by definition difficult to control through ex ante rules because opportunists understand and exploit the law “contrary to its purpose.” 77 The maxim “equity considers done what ought to be done” describes how equity “combats opportunism by undoing it directly,” requiring a party who is “under obligation to act” to do so. 78 Texas’s move to avoid its constitutional obligation certainly seemed like opportunistic, inequitable behavior that equity could “undo.”

But equity’s limiting principles would weigh against the plaintiffs. Since equity necessarily involves flexibility and discretion,79 it developed limits to protect against abuse.80 One is that equity is “exceptional,” available only to “supplement[] the law” in the limited situations where “the law falls short.”81 Thus, plaintiffs seeking equitable relief must show that they have “no adequate legal remedy.”82 After Texas’s concession at oral argument, there was clearly an adequate legal remedy: damages under the state’s inverse condemnation law.83

The Court reached the same result that principles of equity would have led to: it remanded the plaintiffs to their legal remedy.84 But the Court did not even consider the possibility of a remedy for equitable compensation; instead, its language continued to tend toward a narrower view of equity and constitutional remedies.

In recent years, the Court has limited equity’s flexibility in applying remedies by a history-based test: a remedy is available only if a solution equivalent to that of “the days of split judges” can be identified. 85 And recent rhetoric from the Court indicates that another kind of restriction may be on the way: on when plaintiffs are entitled to sue for equitable relief for constitutional violations. 86 In DeVillier, Justice Thomas wrote: “Constitutional rights do not typically come with a built-in cause of action permitting their private enforcement in the courts. Instead, constitutional rights are typically invoked defensively in cases arising from other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose.”87 It is possible to read those sentences as applying only to statutory remedies. But Justice Thomas’s careful wording suggests that he believes otherwise.

The source of the right to sue for injunctive relief for constitutional violations recognized in Ex parte Young is debated. 88 A traditional explanation from Hart and Wechsler is that the right is inherent in the Constitution. 89 But that justification appears to be in jeopardy. 90 In Armstrong v. Exceptional Child Center, Inc.,91 Justice Scalia described “the ability to sue” for Ex parte Young injunctive relief as a “creation of courts of equity . . . reflecting a long history of judicial review of unlawful executive actions, going back to England.”92 A continuation of that logic might include the Ex parte Young decision on authority to sue for antisuit injunctive relief, justified only because that precise kind of authority existed before 1789—and one possible implication might be that there is no independent right to sue for equitable relief for constitutional violations. 94 Scholars and judges who subscribe to this reasoning describe the distinction as “offensive” versus “defensive” or “sword” versus “shield.”95 There is a historic right to sue for a “defensive” antisuit injunction, but no general authorization to “offensively” assert constitutional rights. The Court has never explicitly adopted this view, and it did not do so in DeVillier.96 But Justice Thomas’s language came a bit closer: constitutional rights are “offensively asserted pursuant to an independent cause of action tailored for that purpose.”97

Traditional principles of equity present an alternative path.98 Professor Bray explains that over time, patterns (or principles) emerged for when and how equity courts granted relief.99 Those principles formed a body of general law.100 But because of equity’s distinctive function, its principles did not precisely define ex ante rights, duties, and rules in the way that common law does; Instead, they guided when and how equity should intervene when “the law failed” in unpredictable ways. 101 “Entering equity,” therefore, did not require formal leave to sue (a cause of action) or identification of the exact precedent. 102 Instead, plaintiffs had to provide a “persuasive statement of how [they] wanted equity to do something that was the sort of thing equity does.” 103 Access was controlled and remedies granted through “the cautious exercise of a broad discretion” by the judge, who applied the principles of equity, including its limiting principles. 104

Drawing formal ex ante rules from the history of the Founding era—both about what equitable remedies are available and about when plaintiffs are authorized to sue for them—forces a square peg into a round hole. 105 And the approach is not bound by originalism. 106 Courts seeking to understand what equity law was at the Foundation might, Instead, ask what principles equity courts traditionally applied. The DeVillier fact pattern illustrates the contrast. The Court’s current direction appears to exclude fair and equitable compensation out of hand, but a court applying traditional equity principles might have granted relief had Texas not made its surprising concession. The plaintiffs had a narrative of opportunistic behavior, and the relief they sought fit an equitable pattern. And the contrast has implications that extend beyond the Takings Clause. Professor Richard Fallon suggests that equitable remedies may not be available in situations mirroring Whole Woman’s Health v. Jackson107: when a state enacts a functionally unconstitutional law that is specifically designed to preempt legal challenges.108 Such laws would not authorize official enforcement action precisely so that challenges to them would not fall within the “long history of judicial review of unlawful executive actions.”109 But they represent paradigmatic opportunism, exactly the kind of behavior that traditional principles of equity counter.