Friday, August 9, 2013

Daily Read: Raisins on Remand and Popular Opinion About the Takings Clause

NPR's "All Things Considered" today featured a segment on "The Raisin Outlaw of Kerman, California," none other than Marvin Horne, of Horne v. Department of Agriculture, decided by the Court in June.  Recall that the Court, in a unanimous opinion, reversed the Ninth Circuit's ruling that the Hornes did not state a claim for a regulatory taking.  At issue are marketing orders promulgated by the USDA (United States Department of Agriculture) under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. ยง 601 et seq., that mandate that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices.  


As NPR phrases it, "For not agreeing to participate in behavior that in many other industries would be considered collusion, the federal government sued the Hornes for hundreds of thousands of dollars in uncollected raisins and fines." (emphasis in original).

For anyone following takings clause doctrine (or agricultural matters and food law), this is worth a listen.

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Current Affairs, Fifth Amendment, Takings Clause | Permalink

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There is some evidence that, when demand is elastic, regulatory programs that use mandatory "hold back" provisions to control oversupply of agricultural products are very inefficient, and perhaps counterproductive. (Marketing orders in the citrus industry are an example.) That is a public policy issue, not a constitutional problem. The irony of the Horne's attempt to use the courts to achieve a political objective that is, politically, unattainable (a strategy emulating the political left, but without the moral underpinning of protection of human rights, instead fueled by the protection of profits), is that the system of marketing orders was created to protect small farmers, and has evolved into a yearly multibillion dollar shift of taxpayer money to agricultural corporations and wealthy, absentee farmers. Having studied the legal history of the raisin industry in the Central Valley of California, it amuses me no end that collective action (in the form of raisin cooperatives) saved the raisin farmers from the predations of the wholesalers/processors in the early 20th Century, and "collectivist" statutory schemes have benefited agriculture since the New Deal, and now the "wreck government when it doesn't increase our profits" approach is being used to attack one tiny aspect of that regulatory system that cuts into the profits of one group of wealthy farmers.

Posted by: Jeffrey G. Purvis | Aug 10, 2013 10:08:24 AM

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