April 21, 2015

TWO (MILLION) SCOOPS!:   . . .of raisins, taken by the federal Raisin Administrative Committee.  The U.S. Supreme Court will hear oral arguments in a case tomorrow, Horne v. U.S. Dep’t of Agriculture, to decide whether this Committee may constitutionally confiscate–without compensation–raisins grown in excess of a quota established by the Committee.  The case is being brought (finally) by brave raisin farmers Marvin and Laura Horne, who were ordered by the Committee to hand over about 300 tons (approximately 30% of their crop) of raisins that the government decided were excessive.  The Committee is a vestige of the New Deal era, which in its wisdom, too often attempted to control agricultural prices by controlling supply.  According to today’s Wall Street Journal editorial:

The Hornes say this raisin toll is an unconstitutional seizure of their property. Under the Fifth Amendment’s Takings Clause, “private property” shall not “be taken for public use, without just compensation.” That clause is typically understood to make it illegal for the government to grab houses, cars or even raisins.

A three-judge panel of the Ninth Circuit Court of Appeals had a different view, ruling in 2011 that “the Raisin Marketing Order applies to the Hornes only insofar as they voluntarily choose to send their raisins into the stream of interstate commerce.” In other words, if you don’t want your raisins seized, you always have the option of going out of business.

After the Hornes sought rehearing en banc, the Ninth Circuit three-judge panel withdrew its opinion and replaced it with one that said the Hornes would first have to pay the fines and then appeal to the Court of Federal Claims. In June 2013 a unanimous Supreme Court overturned that decision and remanded it to the Ninth Circuit to decide on the merits. The court should “figure out,” Justice Elena Kagan said, “whether this marketing order is a taking, or just the world’s most outdated law.”

Hearing the case again, the Ninth Circuit went on another legal flight, ruling that the Takings Clause was meant to address the seizure of land, not other personal private property. And even if the government did take raisin farmers’ property, the confiscation created raisin scarcity which raised raisin prices, so the Hornes were compensated for their property in that way.

This is rewriting the Fifth Amendment. Under the Ninth Circuit’s logic, why couldn’t the government demand that an auto company hand over 20% of the cars off its production line to give to the poor or sell overseas? How about pharmaceuticals or iPhones to maintain stable prices or serve another regulatory purpose?

Exactly.  If the government can (literally) take raisins without compensation, they can take anything else, and sellers of virtually anything can have their goods confiscated by a government intent on regulating “supply.”  This regulation of supply was one of the basic principles of Soviet collectivism of agriculture, as well as industry, in Stalin’s Five Year Plans.  It is telling to see how the U.S. Court of Appeals for the Ninth Circuit–the most liberal federal court of appeals–has engaged in contortions to avoid honoring the Takings Clause of the Constitution.

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