Raisin takings case returns to the Supreme Court

|The Volokh Conspiracy |

Although the news is likely to be buried in the understandable hoopla over the same-sex marriage case, the Supreme Court today also agreed to review Horne v. Department of Agriculture, a case where property owners argue that the federal government's demand that they turn over large quantities of raisins is a taking for which they are entitled to "just compensation" under the Fifth Amendment. The government's effort to seize the raisins is part of a program intended to increase the price of raisinsby creating an artificial scarcity on the market, thereby benefiting producers at the expense of consumers. The Ninth Circuit Court of Appeals rejected the owners' claim in large part because it concluded that the just compensation requirement of the Takings Clause affords "less protection to personal [property]" such as the raisins, "than to real property."

Will Baude has a good post explaining the case in greater detail here. As he notes, I joined an amicus brief co-authored with several other property and constitutional law scholars urging the Supreme Court to take the case and overrule the Ninth Circuit. The brief explains in some detail why the Takings Clause protects personal property on par with real property, and demonstrates that that understanding goes all the way back to the Founding.

Horne is now one of the rare cases that has gone to the Supreme Court twice. In 2013, the Court unanimously rejected the federal government's claim that the property owners should not even be allowed to present their Takings Clause argument in federal court without first paying some $483,000 in fines and pursuing various likely futile administrative remedies.

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