In <i>Horne v. Department of Agriculture</i>, SCOTUS to Wade into Complicated Nest of Takings Issues

Next Wednesday, the Supreme Court will hear oral argument in the case of Horne v. U.S. Department of Agriculture - a complicated and relatively little-noticed case that could have important implications for the direction of "takings" doctrine and, in turn, for how far judges wielding this doctrine may intrude upon the policy-making functions of the elected branches. To understand the case, it is useful to analogize the issues in the case to a set of Russian nested dolls. The issue representing the innermost doll, which the Court will only get to if it can unpack the outer dolls, is the most intriguing and arguably the most significant in terms of the future of takings doctrine. The question is whether a federal agricultural marketing program results in a "taking" of private property within the meaning of the Takings Clause of the Fifth Amendment by requiring raisin producers to turn over a portion of their crop to a quasi-governmental entity for eventual disposal with little or no financial return to the producers. The program was established pursuant to the federal Marketing Agreement Act, adopted during the Great Depression to stabilize the prices of certain crops by controlling the volume of production going to market. The Act's requirement that producers place a portion of their crop in "reserve" only goes into effect once the Department of Agriculture, in response to a petition supported by a majority of producers, issues a formal marketing order, which occurred in the case of raisins in the late 1940's. In some years, when production is low, no raisins are reserved under the program; in other years, when production is high, raisin producers must place as much as a third of their crop in reserve. The upshot is more stable - and higher - raisin prices for producers and consumers alike. The Hornes, long-time raisin producers, concluded that the program represented bad agricultural policy and was unfair as applied to them. In the hope of escaping the program's requirements, they rearranged their business practices in an attempt to avoid the Act's mandates while continuing to produce raisins, and ceased placing any portion of their raisin crop in reserve. The USDA rejected this gambit and imposed civil penalties on the Hornes for violating the program rules. They responded by filing suit in federal district court in California, arguing, among other things, that the reserve requirement constituted a taking.