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SCOTUS takes on the raisin takings case

SCOTUS takes on the raisin takings case

Classical taking, government theft, or something else entirely?

In 2015 America, government overreach isn’t exactly headline news anymore. From the IRS to the VA to the EPA, it seems like every agency in the country is managing to find new and exciting ways to rob from the middle class to feed the bureaucracy; not only is the “system” growing, it’s getting harder and harder for the average citizen to fight The Man and come out standing.

Not headline news, and nothing new; many of the programs giving Americans hell were developed decades back. One program targeting raisin farmers, however, is currently under fire from business owners looking to protect their property rights.

In the wake of World War II, the US government developed a series of programs aimed at stabilizing the agricultural industry. They wanted to drive up market prices, and decided the best way to do so was to confiscate a portion of each farmer’s raisin crop without compensation. (Yes, really.) In 2001, farmers Marvin and Laura Horne decided they had had enough with regulations, and developed their own packaging and distribution system.

The government, in turn, told the couple that they owed almost $700,000; the Horne’s sued, and fielded a predictable loss at the 9th Circuit. The appeals court sided with the government, saying that the farmers benefit from the stabilization programs; the Hornes took their case to the Supreme Court, where it was argued this week.

Fox News describes the mood in the courtroom:

During a one-hour argument, most of the justices seemed to agree. Justice Antonin Scalia compared it to old-style Russian central planning, while Justice Elena Kagan called it a “weird historical anomaly.”

Chief Justice John Roberts noted that most other farm regulatory programs try to limit how much of a crop farmers can grow, as opposed to taking away produce already harvested.

“This is different because you come up with the truck and you get the shovels and you take their raisins, probably in the dark of night,” Roberts said to laughter.

Deputy Solicitor General Edwin Kneedler, arguing for the government, stressed that the Hornes benefit from increased raisin prices. He said they voluntarily put their crops into the stream of commerce, so authorities can subject them to market regulations.

But Roberts called it a “classical, physical taking.”

The worst part of the government’s argument against the Hornes is that they “voluntarily put their crops into the stream of commerce,” and are thus subject to “market regulations”—but does that argument really apply here? A quick perusal of my 1L Constitutional Law outline shows a definition of “taking” that looks an awful lot like what’s happening to raisin farmers.

If more than just the conservative justices are on board with this argument, this could end up being a historical ruling for the Supreme Court, and a big blow to big government regulators.

A ruling is expected in June. We’ll keep you posted!


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ANY Federal intrusion into markets leads to huge distortions (because they are national, by definition), which ALWAYS have perverse consequences.

This particular program is worse than even other agriculture programs, which usually take the form of subsidies or “pay not to produce” schemes.

But they are ALL unnecessary, anti-consumer, and an affront to a free people. Or…crazy.

    gregjgrose in reply to Ragspierre. | April 22, 2015 at 4:32 pm

    To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

    The Founders didn’t like standing armies, as a threat to liberty, thus the above.

    I think the same remedy, based on the same threat, would be just copacetic for all our regulatory agencies, nobody gets out alive, no I mean nobody gets more than two years’ funding at a time.

      Ragspierre in reply to gregjgrose. | April 22, 2015 at 4:36 pm

      I go back to my mandatory sunsetting provision for all…ALLLLLLLLL…Federal statutes.

      I’d give them a decade. Let the courts identify their flaws and ambiguities. Then EVERY ONE would have to be individually reviewed. No “omnibus” re-passage. MAKE the Congress step up to their work. MAKE them tighten up their drafting if it’s drifted away for the intent of the original.

Federal programs have wide-ranging effects.

In the late 80s, the Feds paid dairy farmers large amounts of cash to slaughter dairy cows. The idea was to reduce the milk supply so as to raise the price – supposedly, milk was at a dangerously low price.

The buyout had that effect. Supply was drastically reduced, and milk price came up.

It also had another effect – crashing the beef market. My parents nearly lost everything in the resulting market free-fall. They barely hung onto the ranch, and made a lot of sacrifices to manage the land payments.

    Ragspierre in reply to LLC. | April 22, 2015 at 3:29 pm

    Yeppers. That’s because, for all their conceit, “brights” aren’t really very bright at all.

    What they are is arrogant people driven to screw with other people’s choices. THEY never pay for their disasters, either. And those are legion.

I am depressed enough to believe the Supremes will either tell the Executive Branch – “Help yourself.”


They will repudiate the EB with a narrow ruling that only applies to raisin farmers.

Seems to me there are two constitutional questions here.

The first is “just compensation” – is the government giving these farmers just compensation for what is being taken?

Number two: Is the act of “taking” constitutional itself? That is, in the taking, is the government fulfilling one of its duties while exercising an enumerated power? (Although Congress has authority to “regulate interstate commerce,” that should limit Congress to “making commerce regular.” The term “regulate,” when used in the Constitution, means “orderly,” with the specific objective of promoting or enhancing something – like “commerce” or the efficiency of the “militia.” The power was not meant to give Congress the authority to interfere with, diminish, prevent, prohibit, or manage the public market. Unfortunately, SCOTUS disagrees with me, but it took it about 150 years for Congress to suddenly “discover” that has such authority and for SCOTUS to support the power grab, which makes me suspicious. If Congress had such authority, the 18th Amendment would not have been necessary; Congress would have just made alcoholic beverages illegal by statute. The fact that they did not is a strong indication that at the time, Congress understood the limits of its authority.)

It should be obvious I think the answer to question #2 is “No,” making it unnecessary to even address question #1.

    Ragspierre in reply to DaveGinOly. | April 22, 2015 at 6:58 pm

    If we step back a bit to the Articles Of Confederation, we see where the “commerce clause” came from, its purpose, and its limits.

    ONE of the HUGE holes in the Articles was in the area of providing a means of facilitating commerce BETWEEN the states. Remember that each considered itself a sovereign, and some had populations that WARMLY hated others, often on religious grounds. (A Quaker could easily be tarred and feathered in some other states.)

    In fact, the Constitution was ANOTHER experiment in forming “a more perfect union”. Nobody at the time knew it would work, but it was at least informed by the failures of the Articles. Many of its provisions directly respond to those failures, including the commerce clause, the war powers, a Federal court system allowing for “foreign” citizens (of other states) to have their matters dealt with in a non-state court, and a currency.

    The idea that Congress could interfere…or would DREAM of interfering…in INTRASTATE commerce would have been a deal-breaker for the representatives of the SOVEREIGN states, all very jealous of their own prerogatives respecting the new…highly suspect…national government.

    And everyone knew this, up until the Collectivists started destroying the Constitution.

      Humphrey's Executor in reply to Ragspierre. | April 22, 2015 at 11:28 pm

      Thus the apotheosis of the commerce clause is Wickard v Filburn (1942) wherein SCOTUS said the Feds could fine a man for growing too much wheat even though he grew the wheat only to feed his own livestock because he was not involved in interstate commerce, his actions affected interstate commerce (because if he didn’t grow the wheat, he would have had to buy it from someone else, and that was the purpose of the program — to increase demand/prices).

      I think the Raisin farmers will lose because of Wickard. But i hope they win.

        I agree that, under Wickard v. Filburn, they’re toast. But under the expansive Commerce Clause described under W v. F (and then adopted and expanded by reg by every federal bureaucracy since) we’re ALL toast. I’m hoping that the Supreme Court takes the opportunity to rein in the Commerce Clause; under it’s current interpretation, breathing puts one into the stream of commerce and thus under the heavy thumb of the federal government. (And next, according to the wishes of Anonamom, the Supremes will rediscover the lost Tenth Amendment and our republic will be restored. If you’re gonna dream, dream BIG, I say.)

“. . . In conclusion our previous decision in Wickard v. Filburn, 317 U.S. 111 (1942), is hereby unanimously overturned.

“Judgment for the Marvin and Laura Horne.

“It is so ORDERED.”

[All Justices voted in the affirmative.]


Hey, a guy can dream, can’t he?

Well, can’t he?

I’m just waiting for the spark that lights the powder keg. Come quickly, spark. You’re needed NOW.

healthguyfsu | April 23, 2015 at 5:22 pm

So government takes raisins….farmers are “supposed to” profit from increased raisin prices….raisin consumers pay more money for raisins which increases sales tax revenue on the product for the government as well.

Anyone smell something like rotten raisins here?