The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I am part of a group of constitutional and property law scholars who have filed an amicus brief in, Horne v. Dept. of Agriculture, an important Supreme Court case that will determine whether a federal program that forces owners to turn over large quantities of raisins to the government creates a taking that requires compensation under the Fifth Amendment. The brief is available here.
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" (real property is the legal term for property in land).
Our brief points out what should have been obvious from the start: the text, history, and original meaning of the Takings Clause Fifth Amendment does not distinguish between real and personal property. The text specifically references "private property" generally, and is not limited to any particular type of property right. Nor does it indicate that one type is given less protection than another. Moreover, as we note, the desire to protect personal property against government requisitions was one of the main reasons why the Takings Clause and similar provisions in state constitutions were adopted in the first place. Modern Supreme Court precedent also makes clear that personal property is protected against uncompensated seizure, no less than real property.
The federal government also claims that there is no taking because the owners of the raisins benefit from the program that mandates their seizure. The purpose of the program is to artifically reduce the supply of raisins on the market, thereby creating a cartel that benefits producers. We point out that such benefits might reduce the amount of compensation the government owes. But it does not change the fact that a taking has occurred. Otherwise, the government could avoid paying full compensation in numerous other cases where property is taken by the state for purposes that might benefit the owners in some way. For example, if part of a coastal property is used by the government to build a military base, the owner may derive some benefit from the construction, because his remaining land may be more secure against attack. But that does not mean no taking has occurred, or that he is not entitled to full market value compensation.
The other signers include prominent academic experts on constitutional property rights, among them James Ely (Vanderbilt, author of The Guardian of Every Other Right: A Constitutional History of Property Rights), Nicole Garnett (Notre Dame), and my George Mason University colleague Adam Mossoff, as well as others.
Horne is one of the rare cases that 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.