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Brock Gumbel

Publication Date

2-27-2026

Document Type

Casenote

Abstract

“[No person shall be] deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” In just twelve words, the drafters of the Bill of Rights guaranteed property owners a significant protection. The Fifth Amendment Takings Clause is not an express ban on government takings. Rather, it guarantees that when the government takes property from private citizens, it must provide just compensation. Although this guarantee is generally well established, its enforcement in federal court introduces unique and significant challenges.

Plaintiffs must have a cause of action to invoke the power of the federal courts and seek the specific remedy they wish to recover. This remains true when plaintiffs seek just compensation from local governments in federal court. For nearly half a century, 42 U.S.C. § 1983 supplied the only federal cause of action to vindicate this right. But this year, the United States Court of Appeals for the Eleventh Circuit provided a novel alternative to the classic § 1983 framework. In Fulton v. Fulton County Board of Commissioners, the Eleventh Circuit became the first federal appellate court to hold that plaintiffs can invoke the text of the Takings Clause—via the Fourteenth Amendment —to bring a direct cause of action against local governments.

Although the Eleventh Circuit emphasized its decision’s “limited” practical effect, a direct cause of action might raise constitutional implications beyond the scope of the court’s considerations. Specifically, the court’s decision may frustrate the delicate balance of power between Congress and the Judiciary.

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