During Supreme Court arguments today about the government’s power to confiscate raisin crops, several Justices appeared to relish the chance to make a few remarks about a complicated subject.
The case of Horne v. Department of Agriculture was back before the nine Justices for a second time. In 2013, several Justices had a field day making comments about the premise that the government can use an order to force farmers to give up parts of their crop in order to control supplies and prices.
"Your raisins or your life, right? . . . You don't have to pay the penalty if you give us the raisins,” Justice Antonin Scalia asked in 2013 about fines imposed on raisin farmers who balked at the order.
Justice Elena Kagan said in 2013 that the case needed to go back to the Appeals Court so it could “try to figure out whether this marketing order is a taking or it’s just the world’s most outdated law.” And that is where the case went, before it returned to the Court on Wednesday after the Hornes lost again in appeals court.
The Court considered a complicated three-part question:
First, does the federal government need to pay someone for taking their personal property (such as raisins) or just real estate? Second, can the government take raisins, or any other property, and just give part of the sales proceeds to the former owner to justify the taking? And third, can the government require as a condition of doing business the surrender of part of a raisin crop?
At the heart of the argument is something called a Raisin Marketing Order, which dates back to the Agricultural Marketing Agreement Act of 1937. The order was first used in 1949 and it requires growers to turn over a percentage of handled raisins to the federal government. The government removes surplus raisins from the market to regulate raisin prices, and often resells part of its confiscated raisin horde to the market, giving some proceeds back to the growers.
Marvin Horne, the farmer in the case, was fined $695,000 for noncompliance with the order.
The Fifth Amendment’s Takings Clause allows a government agency to take the personal property of citizens if it can prove the taking benefits the public and just compensation is paid to a property owner.
On Wednesday, some Justices seemed to indicate that they thought the raisin crop confiscations were takings. For example, Chief Justice John Roberts said the raisin case is different from other orders that restrict production.
Link: Read The Official Transcript
“This is different. You come up with the truck, and you get the shovels, and you take their raisins, probably in the dark of night," Roberts said.
Scalia also questioned the government’s arguments about the rationale of the 1937 agriculture act. "Central planning was thought to work very well in 1937. Russia tried it for a long time,” Scalia said.
Roberts also appeared to be looking for a narrow rationale that would solve the Horne’s problem while leaving broader agricultural programs untouched.
“For whatever reason in the history of the New Deal, this one was set up differently,” Roberts said about the Raisin Marketing Order. “And so we’re here dealing with a classic, physical taking. We are not going to jeopardize the Agriculture Department’s marketing order regime.”
