Buzbee waves off such caution. “If you have your case on file and have litigated your case, you will always have better standing than someone who is sitting on the sidelines,” he says.
His approach to the West Houston suits is based on a fascinating legal argument, one that taps at a core Texan belief: The government should leave you the hell alone and pay you back if it doesn’t. The takings clause of the U.S. Constitution’s Fifth Amendment forbids the federal government from seizing citizens’ property without paying for it: “[N]or shall private property be taken for public use without just compensation.” Attendant case law holds that when a government “takes” property for the public good without going through eminent domain proceedings, the owner can claim that an “inverse condemnation” has taken place, arguing that property was unfairly taken, damaged, or destroyed, and that payment is due.
Until 2012 the government successfully argued that it wasn’t legally responsible for decisions made in response to temporary flooding. That year the Supreme Court laid out a new multifactor test that could establish government liability in such cases. The majority opinion, written by Justice Ruth Bader Ginsburg, held, for example, that the government should compensate a property owner for a taking if it has interfered with a “reasonable, investment-backed expectation.” That is, if it was reasonable to expect that a home you invested in wouldn’t flood, but it does, and a court finds the government responsible, then compensation could be due.
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