Antonin Scalia

Supreme Court Grills Government Lawyer Over USDA 'Central Planning' in Raisin Confiscation Case

SCOTUS heard oral arguments on Wednesday in Horne v. USDA.


The U.S. Supreme Court heard oral arguments on Wednesday over the constitutionality of a federal program which allows the United States Department of Agriculture (USDA) to physically confiscate a large portion of each year's raison crop for the purposes of "stabilizing" the raisin market. Judging by the questions and concerns raised by the Court, that federal farm control scheme may be in serious trouble.

At issue in Horne v. USDA is whether the federal confiscation of privately owned raisins under the Agricultural Marketing Agreement Act, a federal law which dates back to the New Deal, violates the Fifth Amendment's requirement that the government pay just compensation when it takes private property for a public use.

"In this case the government literally takes possession of the raisins," declared Stanford law professor Michael McConnell, the attorney representing family farmers Marvin and Laura Horne. That's different from other forms of economic regulation, he maintained, such as when the government places a limit on the amount of raisins that farmers are permitted to grow. "Instead, they're told to set aside the raisins and give them to the government. So here there is a taking" of physical property.

Several justices seemed inclined to agree. Assume I "have some raisins in my basement," said Justice Stephen Breyer. "I'm in this program. The government comes with a shovel and some burlap sacks; it takes the raisins. I would say, well, sounds like a taking to me."

Representing the federal government was Deputy Solicitor General Edwin Kneedler. He faced the difficult task of justifying the USDA's actions in a way that did not trigger the Fifth Amendment's Takings Clause. "The government has not taken the raisins," Kneedler maintained. "This program operates only when the producer, the grower, has voluntarily submitted…the raisins to the stream of commerce."

"Is there any limit to that argument?" responded Justice Samuel Alito. "Could the government say to a manufacturer of cellphones, you can sell cellphones; however, every fifth one you have to give to us?"

A few minutes later, Justice Sonia Sotomayor returned to Alito's question. "Mr. Kneedler, I, too, am troubled, like Justice Alito, about his every fifth telephone or whatever," she said. "I don't know that you've answered that question. Is that a taking or isn't it?"

But Kneedler refused to budge. "This is a comprehensive governmental program," he stressed, "and it—it governs quality, it governs timing of sales, and it's important to recognize that's all that is going on here." Furthermore, Kneedler later added, "the premises on which Congress enacted this statute in 1937 operated then and…operate now for the benefit of [raisin] producers."

Justice Antonin Scalia, however, promptly rejected that line of argument. "Central planning was thought to work very well in 1937," Scalia retorted, "and Russia tried it for a long time."

Chief Justice John Roberts, meanwhile, raised a broader objection to the government's stance. "You say that producers who are dissatisfied with the reserve regulations may plant different crops," Roberts observed. "Normally what we say, if you don't like regulations, you can challenge them in court to see if they comply with the Constitution."

"The substantive point," Kneedler responded, "is that there is market regulation. People who are growing crops in this industry know what the regulation is…. They have the option of selling the grapes for other purposes."

But Roberts refused to buy it. Assume "we're going to say the Pledge of Allegiance in public schools," he told Kneedler, "and we're going to make everybody stand. And if you don't like it, go to a different school. I don't understand why that's not the same analysis here."

Despite the federal government's best legal efforts, it appears that the USDA will be judged under the exacting limits imposed by the Fifth Amendment.

A ruling in Horne v. United States Department of Agriculture is expected by June.

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  1. Somebody is getting their hopes up....

    I shan't.

    1. Ditto. This has been a blatant taking since 1930-whatever. I don't see why they'd start acknowledging that now. Only suspense is what ridiculous contortions they'll tie themselves in to preserve the New Deal. Long live the New Deal.

  2. Are we now doing Mexicans, ass sex, pot AND raisins?

    1. I'm going to be very disappointed when I google "Mexican raisin ass sex" aren't I?

      1. Brett, if you actually google that, I would assume that you won't be disappointed. You are likely to find, I am NOT going to look, plenty of examples. Do you mean disappointed in the "damn, that is fucking gross" sense or do you mean disappointed in the "damn, only 600 pages of hot , Mexican raisin ass sex"? Big difference.

      2. I don't know what your particular.....appetites are, but I'm willing to listen.
        *pours a glass of brandy and gets comfortable*

  3. My best friend's mother-in-law makes $85 /hour on the internet . She has been out of work for 5 months but last month her pay was $16453 just working on the internet for a few hours.
    Visit this website ?????

    1. Sugar is an entirely different government subsidy program, Ivan. Duh.

  4. In the 1st paragraph a "raison" sneaked in. Or the government confiscated one of your raisins and you did your best to replace it.

    1. Root entered the raisin words into the program when he voluntarily submitted the raisin words into the stream of internet commerce.

  5. Despite the federal government's best legal efforts, it appears that the USDA will be judged under the exacting limits imposed by the Fifth Amendment.

    I would say it's because they legal efforts are aimed at defending an idiotic position, but then I think about the penaltax.

    1. Look at the school analogy, it's telling. The USDA can't let people opt out because everyone will.

      1. Farmers are like union teachers and health care workers in Wisconsin?

  6. "If you don't like the unconstitutional taking, you can always choose not to dry your grapes."

    1. All part and parcel to the "there is no such thing as private property" mentality.

    2. Actually, wouldn't the fact that they had grapes to sell in the first place justify the taking, if you first accept this insane line of "reasoning":

      This program operates only when the producer, the grower, has voluntarily submitted...the raisins to the stream of commerce.

      1. The justices seem to recognize that the remedy for the violation of the Fifth Amendment is not for the victims to alter their behavior to avoid the taking. That's at least something.

      2. The only rational response to this argument would be to annihilate the program in its entirety. However I expect a weaselly decision that attempts to thread the needle of adjusting the program while retaining the federal government's power to interfere in markets of all types.

      3. This program operates only when the producer, the grower, has voluntarily submitted...the raisins to the stream of commerce.

        That is the core justification for vast swathes of the federal regulatory state. Essentially, the argument goes, nobody forced you to go into business, so if you choose to you, you voluntarily submit to the exactions of EPA, OSHA, etc. Those agencies, after all, aren't regulating, directly or indirectly, commerce. They are imposing requirements on how businesses operate. There's really no way to say that the EPA is regulating commerce when it requires someone to buy scrubbers or prohibits them from draining a wetland, after all.

        Don't like it? Go out of business.

  7. What a colossal beatdown.

    Question for legal minds: will this have an effect on price fixing schemes for other commodities, namely wheat, other produce and nuts? In my opinion, they should issue a broad ruling that applies broadly and takes the government completely out of those markets. But I doubt they will.

    1. I wish. Unfortunately we have a couple of things going against us. One, as a matter of judicial principle, the court usually tries to limit the scope of its rulings to the specific facts and controversy in question. Two, invalidating the entire "stream of commerce" rationale would severely undermine the expansive Commerce Clause jurisprudence on the books, would caress all of our figurative nuts too sweetly and therefore will never happen in this or in ten lifetimes.

  8. All your raisins are belong to us

  9. Assume I "have some raisins in my basement," said Justice Stephen Breyer. "I'm in this program. The government comes with a shovel and some burlap sacks; it takes the raisins. I would say, well, sounds like a taking to me."


    It looks like he's gonna reach the right conclusion, but the man needs to take the onion off his belt and retire.

    Although, I was kinda hoping for some honesty about the burlap sack being applied to the cranial region, followed by the shovel.

  10. Editors, please correct spelling of "raisin" in the first paragraph: "... each year's raison crop ...."

    I guess correcting reason's frequent typos are my raison d'etre.

  11. Is that a raison in your pocket or are you just happy to see me?

  12. Oh for having a few minutes in one of those chairs. I know the one question I would ask:

    "So, Mr Kneedler, would it be safe to say that if you like your raisins you cannot keep your raisins?"

    ::drops mic::

    1. Give me a tenured for life position and the ability to make headlines by flapping my yap . . .

      And I'd be proud to ask that question. Well played, you crazy Texan you.

  13. The big problem for the government is that the reserve raisins aren't actually being sold in down years to benefit the producers. The raisins are often sold for export at below market rates, or given away. And the money that is raised is spent on operating costs for the raisin board, or is used to subsidize exports - which mainly benefits big producers like Sun Maid. Not much is left over to give back to producers.

    What's really going on here is a classic case of regulatory capture. What might have a rationale as a crop insurance program basically has grown so that all the benefits are diverted to other interests. Raisin producers get whatever is leftover after the raisin board pays itself, pays Sun Main, and gives away whatever else to the state's pet interests (school lunch program).

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