US Supreme Court Signals Interest in Another Michigan Tax-Foreclosure Case

The United States Supreme Court took notable action today in Hathon v. State of Michigan, directing the State to file a response to the petition for certiorari. The State had previously waived its right to respond, a step that typically ends most cases quietly. Instead, the Court requested briefing—an unmistakable indication that at least one Justice views the case as raising substantial and unresolved constitutional questions.

At the center of Hathon is a straightforward but nationally significant issue: Can a State eliminate a property owner’s federal constitutional right to just compensation by declaring a narrow statutory remedy “exclusive”? Michigan argues that homeowners whose equity was taken in tax-foreclosure proceedings may seek relief only through a newly enacted statute, and that the Takings Clause itself provides no direct cause of action against the State. If adopted, that position would make the Fifth Amendment optional for States, leaving the constitutional guarantee of just compensation dependent on legislative grace rather than constitutional command.

The Court’s request for a response signals that this question matters. It is the same unresolved gap the Court declined to reach in last Term’s DeVillier decision. Unlike DeVillier, however, Hathon presents a clean vehicle: Michigan concedes no alternative remedy exists beyond its statutory process, and the Michigan Supreme Court expressly barred all direct constitutional claims.

The case arrives at a moment when the Supreme Court is already engaged with Michigan’s tax-foreclosure system. The Court granted review earlier this year in Pung v. Isabella County, another case handled by Outside Legal Counsel PLC and Pacific Legal Foundation, which challenges government retention of home equity beyond what is owed. Hathon goes a step further, asking whether the Constitution itself supplies a cause of action when the government takes property without paying for it.

Today’s order means the Justices want to hear from the State of Michigan directly. The response will be filed in the coming weeks, after which the Court will decide whether to take the case, hold it for Pung, or call for additional briefing.

Outside Legal Counsel PLC represents the petitioners in Hathon and will continue to pursue the fundamental principle at stake: When the government takes private property, the Constitution—not a statute—requires just compensation. That promise cannot be legislated away.