On the surface, the issues presented by Devillier v. Texas — a Supreme Court case brought by Texas landowners who claim the state should compensate them for flooding on their land — have nothing whatsoever to do with Donald Trump, or the looming question of whether the insurrectionist former president is allowed to run again for the presidency.
Dig just an inch below the surface, however, and the Devillier case, which will be argued next Tuesday before the justices, raises strikingly similar questions to some of the core issues in Trump v. Anderson, the Supreme Court case asking whether Trump should be removed from the 2024 presidential ballot.
So anyone seeking a preview of how the Court might rule in Trump, which won’t be argued until next month, would be wise to pay close attention to the argument in Devillier.
One of the core questions in Trump is whether Section 3 of the 14th Amendment, a provision that disqualifies former high-ranking public officials from holding office in the future if they “have engaged in insurrection or rebellion” against the Constitution, is “self-executing” — meaning that it takes effect automatically, regardless of whether Congress has enacted legislation laying out what procedures should be used to determine if Trump did, in fact, engage in an insurrection.
If Section 3 is self-executing, that means that the Constitution imposes an independent duty on state officials to prevent Trump from obtaining office again. If it is not, then the question of whether Trump is disqualified from the presidency because of his attempt to overthrow the 2020 presidential election is, at least, much more complicated — and Trump is much more likely to prevail in his effort to appear on the 2024 ballot.
Devillier, meanwhile, asks whether a separate provision of the Constitution — the Fifth Amendment’s “takings clause,” which provides that the government may not take someone’s private property for public use “without…
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