Supreme Court May Put an End to Government’s Raisin Takings

Earlier this week the U.S. Supreme Court heard oral arguments in
the case of Horne v. USDA. I watched the case
in person at the Supreme Court—the first time I’ve done so.
Horne concerns the USDA’s raisin marketing order
program, one of many New Deal-era food-regulatory schemes that
subsist for no good reason. The program requires raisin handlers
(who process raisins for sale) to give a portion of the crop to the
government—often without compensation.
The issue in the case (aside from a jurisdictional issue that
appeared to evaporate quickly during oral arguments on Wednesday)
is whether plaintiffs like Marvin and Laura Horne, in their
capacity as raisin handlers, may sue to prevent a violation of
the ;Takings
Clause—rather than being forced to sue for restitution only
after any such a violation.
The issue concerns the actions of something called the Raisin Administrative Committee, a
government-mandated body that proudly “employs a staff of 17” who
work diligently each year to determine how much of a raisin
handler’s crop they will take, and whether they will compensate the
raisin handler at all for the crop they take.
The plaintiff’s attorney explained last year how the committee’s
takings work in practice.
“In 2003, when the case began,” the Hornes’ attorney, Stanford
University law professor and retired judge Michael McConnell,

told the L.A. Times, “raisin handlers were required to
set aside 47% of the crop.”
“In those two years,” says McConnell, “the raisin board
‘determined that the compensation for the reserve-tonnage raisins
should be set at precisely zero dollars.”
The cost of the USDA’s raisin program is borne twice by
taxpayers—who both fund the program and pay more for raisins.
Though that’s true of many New Deal-era USDA programs, it still
didn’t sit well with some of the Court’s justices this week.
“I can’t believe that Congress wanted the taxpayers to pay for a
program that’s going to mean they have to pay higher prices as
consumers,” Justice Stephen Breyer exclaimed.
That sort of robed skepticism was in evidence throughout much of
oral arguments.
Toward the end of the government’s presentation of its case,
Justice Elena Kagan speculated the Court could remand the case so
the lower court could determine whether the USDA’s raisin marketing
order program was either an unconstitutional taking “or it’s just
the world’s most outdated law.”
Like most any New Deal-era food law still on the books—from farm
subsidies to portions of the Food, Drug, and Cosmetic Act—it’s
probably both.
It’s also a foolish and complex barrier to a free market in
raisins.
Lawyers for Reason Foundation, which publishes this website,
filed
an
amicus brief in support of the Hornes in which they compared
the raisin marketing order program’s options for an injured party
like the Hornes to a “Rube Goldberg” scenario.
Others agree.
Justice Breyer, though he demonstrated a keen understanding of
the facts in this week’s case, compared the characterizations of
raisin buyers, sellers, and processors in the case to “an old
Abbott and Costello movie”—presumably referring to the duo’s
Who’s on First? sketch.
SCOTUSblog reporter Lyle Denniston similarly
noted oral arguments appeared to be as much about “a perplexing
array of minutiae” as they were about raisins.
Hell, even the USDA
calls the raisin marketing order program “somewhat
complex.”
In the end, though, it’s not complex at all. It’s theft. And I
hope the Supreme Court comes to call raisin marketing order
programs—and other USDA marketing orders—by that name.
Finally, keeping in mind that only your local weather forecaster
is wrong as often as are those who play the Supreme Court
case-prediction parlor game, I suspect the Court will vacate and
remand Horne back to the U.S. Court of Appeals for the 9th
Circuit, which will ultimately rule in favor of the Hornes.

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Supreme Court May Put an End to Government’s Raisin Takings

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