Richie Devillier has deep Texas roots. He lives off a road named after his family on land his relatives have farmed since his great-grandfather arrived as a sharecropper in the 1920s. The property provides a generational home and source of income.

But actions by the Texas government have destroyed the Devilliers’ farm and forced the family and neighbors into a legal fight, just appealed to the U.S. Supreme Court , that will affect the rights of property owners across Texas.

Problems started for the Devilliers in the early 2000s, when the Texas Department of Transportation made major changes to Interstate 10 just south of their property line. The state’s goal was to create a reliable evacuation route from Houston during major storms. Workers raised the interstate’s elevation, added two lanes, and built a watertight concrete barrier down the median.

The investment paid off. When Hurricane Harvey slammed the coast in 2017, the barrier created a dam that stopped the rainfall runoff on the north side of Interstate 10, trapping water that otherwise would have flowed to the Gulf of Mexico. The south side of the highway stayed dry, as intended, but left the land northward flooded.

For as long as Richie and his relatives can remember, their land had never flooded before. But suddenly, their farm and surrounding properties looked like a lake. Hundreds of acres of crops were ruined, and many cows and horses died.

Richie and his neighbors complained to the Department of Transportation, but nothing was done. Two years later, when tropical storm Imelda hit the area, the flooding happened again. Left with no alternative, the Devilliers joined their neighbors and filed a lawsuit against Texas.

Under the Fifth Amendment to the Constitution, the government can take private property for public uses, but it must pay for it. Sometimes this happens directly through eminent domain, a process that transfers permanent ownership to the government. Other “takings” occur through regulatory changes that restrict land uses or otherwise lower land values. Owners retain title to their property but suffer losses anyway.

Either way, the government must pay for what it takes or destroys. The rule is simple: You break it, you buy it. The Constitution calls this “just compensation.” The idea is to make sure no individual is stuck footing the bill for public projects. If the government decides using the Devillier farm as floodplain is necessary, then it must cover the costs.

Texas disagrees. In its view, states only must pay for a taking if the federal government has explicitly told them to do so. And since no federal statute says Texas must pay for damages it causes, it can choose not to compensate the Devilliers for their loss.

Shockingly, a panel of federal judges agreed in 2022. Offering almost no analysis, the 5th Circuit held that the promise of just compensation is unenforceable unless Congress passes a law specifically authorizing property owners such as Richie to sue.

The 5th Circuit is wrong. The Supreme Court has repeatedly held that the right to compensation when government takes your property is “self-executing,” meaning it is a right that cannot be revoked through legislative action or inaction. Other courts have said this should make compensation automatic. Just last year, a federal jury awarded a woman in McKinney, Texas, nearly $60,000 in damages after a judge ruled she had a “self-executing” right to compensation when a local SWAT team destroyed her home.

Constitutional remedies, such as being compensated by the government when it takes your property, are not up to the whims of the government; they are required. When the Fifth Amendment says Texas must provide just compensation, it means Texas must provide just compensation.

That’s why our public interest law firm, the Institute for Justice, has joined with the Devilliers and their neighbors to ask the Supreme Court to take up their case. This legal fight should not be necessary. But once again, the high court must affirm that the government, not individual property owners, must bear the costs of public works across Texas and the rest of the nation.

Robert McNamara is deputy litigation director and Trace Mitchell is a litigation fellow at the Institute for Justice in Arlington, Virginia.