Fifth Amendment

Supreme Court Gets Another Chance to Kill Crazy Raisin Regulations

The implications reach far beyond just raisins.

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Last week the Supreme Court announced it would revisit the important case of Horne v. USDA. The case, which I first wrote about here in 2013 after attending the Court's first hearing on it, centers on a USDA program that forces those who traffic in raisins ("handlers," in USDA raisin parlance) to turn over cash or a significant part of their crop—sometimes almost fifty percent—to the USDA without compensation.

In Horne, the eponymous family, which markets raisins, sued the USDA to force the agency to compensate them if the USDA forced them (along with raisin handlers around the country) to turn over cash or almost half their raisin crop to the agency in return for the purported privilege of handling raisins.

The Hornes effectively sued to stop the government from stealing their raisins, arguing that the USDA program amounts to an unconstitutional taking under the Fifth Amendment.

The Fifth Amendment's Takings Clause is perhaps the most important protection of private property written into the U.S. Constitution. The clause requires that any government taking—or seizure, effectively—of private property must be a) for public use and b) accompanied by "just compensation."

As the Ninth Circuit puts it, the Hornes argue the USDA "works a constitutional taking by depriving raisin producers of their personal property, the diverted raisins, without just compensation."

That's exactly what the USDA's raisin marketing program does. Unfortunately, the Ninth Circuit didn't see it that way.

In May, the court ruled against the Hornes—for a second time, no less.

The court determined that "the Hornes' impatience with a regulatory program they view to be out-dated and perhaps disadvantageous to smaller agricultural firms is understandable," but concluded that "the courts are not well-positioned to effect the change the Hornes seek, which is, at base, a restructuring of the way government regulates raisin production."

While the Horne case concerns the USDA's raisin programs, the case outcome could have widespread impact for farmers around the country—and could put an end to a host of superfluous, wasteful USDA programs. Why? Because the USDA's raisin marketing order program is just one of dozens of similar programs.

Similar USDA marketing order programs are in place for almonds, apricots, avocados, cherries (both sweet and tart), Florida and Texas citrus, cranberries, dates, grapes, hazelnuts, kiwifruit, olives, many onions and pears, pistachios, California plums and prunes, many potatoes, raisins, spearmint oil, tomatoes, and walnuts.

These programs are responsible for pervasive regulation of the respective industries.

The spearmint oil marketing order, for example, governs all spearmint oil sold in the country. It "authorizes volume control measures to regulate the marketing of spearmint oil through annual sales allotments," according to the USDA. "Spearmint oil produced in excess of a grower's allotment is placed into a reserve pool and used later to fill production deficiencies and unexpected demand."

Note the government's use of passive voice, which I italicized. The words "is placed… and used" sound a whole lot more constitutional than the more accurate "we take… and use."

There's reason to be optimistic about the case's return to the Supreme Court. Justices of all stripes are skeptical of the USDA program. During the 2013 hearing, Justice Elena Kagan suggested—correctly, as it turned out—that the Court might remand the case, which she said appeared to be either an unconstitutional taking or "just the world's most outdated law."

The program amounts to a choice between "[y]our raisins or your life," Justice Antonin Scalia joked during the same hearing.

While I believe the case is a slam dunk from a legal perspective, I'll quell my optimism this time around.

"I suspect the Court will vacate and remand Horne back to the U.S. Court of Appeals for the 9th Circuit," I wrote after the 2013 hearing, "which will ultimately rule in favor of the Hornes."

The former happened, but the latter didn't. Still, I'm excited to see the Supreme Court have another shot at killing an outdated law that flies in the face of both the Constitution and food freedom.

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  1. The court determined that “the Hornes’ impatience with a regulatory program they view to be out-dated and perhaps disadvantageous to smaller agricultural firms is understandable,”

    So, the court thinks the plaintiffs believe in their cause. Gee, thanks a lot!

    but concluded that “the courts are not well-positioned to effect the change the Hornes seek, which is, at base, a restructuring of the way government regulates raisin production.”

    Ahem. Just call it a “raisintax” and be done with it.

    1. The courts don’t have to restructure the regulations. They just have to strike down the unconstitutional ones. That’s all you have to do, Supremes.

      1. “the courts are not well-positioned to effect the change the Hornes seek, which is, at base, a restructuring of the way government regulates raisin production.”

        This from the Ninth Circuit? Yeah, those guys are totally against “judicial activism.”

        What about this: “the courts are not well-positioned to effect the change Linda Brown seeks, which is, at base, a restructuring of the way government regulates public education.”

    2. That’s what I thought. Why isn’t this just considered a tax on raisins, payable in raisins or their cash equivalent?

    3. Exactly, a refundable raisin tax credit at market rates offset on state and federal taxes. Then the grower will have compensation.

      Currently, the government steals a portion of the crop in the guise of ‘market control’.

  2. The clause requires that any government taking?or seizure, effectively?of private property must be a) for public use and b) accompanied by “just compensation.”

    I wish the clause required that any government taking or seizure to be illegal altogether.

  3. I see no raisin for people whose only crime is raisin crops to be forced to surrender part of that crop to the government without compensation. They are right to be raisin Cain about this.

    I’m glad that a magazine called Raisin is covering this case.

    1. It’s just sour grapes. There are no new wrinkles here.

    2. a magazine called Raisin

      Drink (wine)!

      1. ‘1001 ways to use Raisins’ was a classic issue.

        1. I liked the one that had each subscribers vineyard on their own personalized cover.

          1. I don’t subscribe to magazines to see my ugly mug printed on the cover. I want to see beautiful, impeccably airbrushed celebrities sporting clothes I can’t afford striking poses I wouldn’t be caught dead imitating and discussing with fawning interviewers their glamorous, fascinating personal lives of opulent debauchery.

    3. These are tough issues the court has to grappa with.

    4. There is no raisin that raisin raisins should allow the government the right to raze the raisin storehouses of private raisin raisers. Not since the reisgn of George the third have Americans raisined such an uproar towards an oppressive raisingime. The Constitution is plain in it’s approbations against unraisinable search and seizure.

  4. Justice Elena Kagan suggested?correctly, as it turned out?that the Court might remand the case, which she said appeared to be either an unconstitutional taking or “just the world’s most outdated law.”

    Let the record show that this stalwart lover of freedom once characterized a theoretical law mandating broccoli consumption as “dumb.”

    1. But constitutional if I recall.

      1. She didn’t answer the question. Which, of course, answered the question.

        1. Ah, thanks.

    2. Never understood why people dismissed the ‘mandatory broccoli’ theory. Seems to me it’s plainly evident it’s a matter of time before ‘experts’ get to this.

      This is not a slippery slope logical fallacy, to me anyway. We’re already on that slope. That is, just look at the salt, sugary drinks, Michelle’s crusade, the recent article against pizza, the general overall fear of obesity, forcing pharmacies to sell fruits and vegetables, etc., etc..

      They already try to change – or force people to change – their eating habits.

      So that a ‘eat your fuckien broccoli’ law is not far fetched from where I sit.

      Nor subsidizing organic food at groceries for the poor is too much of a leap of faith.

      After all we all have a ‘right’ to healthy food. Like free education and health care.

      Food is the next great battle.

      1. We’re all gonna get Bloomberged

      2. Caveat: the slippery slope logical fallacy is my least favorite logical fallacy. That being said, I think the term is over-used. We’re talking principles, here (a foreign term for the GOP and Dems). If the law can force you to do “A”, can I not argue that it can force you to do “B” without being accused of slippery slope thinking?

        1. I don’t see why you can’t.

          I always refer to the smoking crusade. It was ‘never’ supposed to evolve like it did. If you brought up a ‘what’s to stop regulations from entering the private sphere?’ (as people soberly did back then), it was dismissed as being ‘unreasonable.’

          We now want to ban smoking in cars and homes. The weasel reason for this?

          The children.

          Naturally.

        2. That’s why slippery slope is rarely applicable, though it’s the most common criticism of libertarianism.

          If the court rules that the legislature or executive possess the legitimate power to do X, and X entails all sorts of things that haven’t yet been legislated or introduced via executive regulation/memos, but could be, that isn’t a slippery slope.

          If the SC ruled that the executive possesses the legitimate power to execute American citizens without due process, and the president doesn’t use that power for a generation or two, that doesn’t mean that invoking the SS fallacy against those who fear legitimated murder of political dissidents is correct.

          It means that the legitimized power is there, but is not being exploited at the moment, presumably due to the good graces and forbearance of the top officials in the executive branch.

  5. But WWFJST?

    What would fucking John Stewart think on this goddamned raisin thing? I simply can’t fire any neurotransmitters and the accompanying copious amounts of a myriad of skull chems on the topic until then.

    What the FUCK is up with this John Stewart quotation obsession on the interwebs? What is this guy and his Branch Stewartian writer pack? Fucking John Jesus Christ Stewart? Fevered fans and eclectic cult status I can rationalize. Certainly his status as a well-rounded comedian deserves a groupie pack full of hipsters and progressive orthodoxians.

    But becoming a serious quote bin for lazy writers engaging in, I guess, an attempt at meaningful conversations on current political events?

    Soon as the cute little Jew goes slightly negative on Obama the right-wing rags crow. And when the cute little Jew and his cadre of scribes in their elite cubicles can model something slightly different about their favorite obsession called Fox News the left-wing rags crow.

    What the fuck did I even post this shit for?

    1. “little” is considered an offensive term, just so you know. It offends short people.

      1. ‘Miniature’ Jew, then. Thank you for the righteous turnabout, notorious brother GKC.

    2. Meh… The Daily Show started to suck ass immediately following the departure of its creator (Lizz Winstead) and original host (Craig Kilbourne).

    3. WATCH: JOHN STEWART DESTROY A RAISIN

  6. Teh MEEZULS is coming for you, America!

    Public Health Authorities are very very concerned. Melissa Harris Perry also is concerned, but has yet to explore the racial oppression angle.

    I haz a confuse.

  7. Why did the raisin go out with the prune?

    Because he couldn’t find a date!

  8. The Daily Show started to suck ass immediately following the departure of its creator (Lizz Winstead) and original host (Craig Kilbourne).

  9. OH, NOES! Churches are taking over our schools!

    You probably didn’t even know that. Melissa Harris Racetroller is on the case, with a blockbuster expose.

    Some woman from Freedom From Religion is outraged. It’s a gosh darned conspiracy. There are people out there usurping the Progressive Agenda!

    1. Wow, other people are consensually engaging in social activities during non-school hours?

      AND THEY CANT BE DISCRIMINATED AGAINST AND REGULATED BASED ON WHAT THEY *THINK*?

      If this is happening in your community, complain!”

      I have a strange memory about someone saying something once about an ‘emerging Left-Right alliance on Civil Liberties‘, but that must have been before the explosion in these insane “God-Cults”

      Ever notice how these people love to say things like =

      “The use of public schools for religious purposes is so divisive… “

      …as they divisively agitate to circumscribe other people’s behaviors?

      Naturally, the most common outcome of their agitations is to get the school district to end all use of public property for non-school purposes *writ large*; and so the “community” is enriched.

      1. Very well put.

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  11. They won’t touch Wickard so it will be decades of screwing around trying to determine what is an unconstitutional taking and what isn’t.

    And Reason mobile sucks balls.

    1. Well if it sucks balls then I guess it has improved somewhat from the last time I tried to use it, when it was essentially non-functional.

      1. Which, the app or the mobile version of the web site? The former doesn’t let you comment, and the latter just links to the former.

    2. Cases like this and Wickard are an excellent reminder of just how far the nation ran off the rails during the early 20th century.

      The continued existence of the “spearmint oil marketing order,” no doubt headed by a dozen six-figure bureaucrats each with 30 years of experience in the spearmint-oil industry, is a pretty good indication that the nation is “governed” by crazy people who believe that the world would fall apart without benevolent, highly paid, autocratic control freaks pulling everyone else’s strings.

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