The Corner

Law & the Courts

The Deep State Won’t Even Surrender Its Raisins Willingly

Until you dip your toes into constitutional and administrative law, it’s difficult to comprehend how difficult, how complex, and how exhausting it can be to extract compensation from government entities. Earlier this week, I wrote about the procedural and statutory challenges facing the John Doe targets in Wisconsin as they attempt to seek justice after enduring years of abuse from local prosecutors. Well, it turns out that it can also be extraordinarily difficult to receive compensation when the federal government simply seizes your property for its own use, even when that property is as inoffensive (and delicious!) as raisins. the government will resist paying a single dime to the last ounce of its legal strength. Just ask Marvin and Laura Horne.

George Will and the editors at the Wall Street Journal have ably documented the Hornes’s case, but here are the basics: As part of a Depression-era price control program, the Department of Agriculture manages the supply of raisins through something called a Raisin Administrative Committee (yes, that’s a thing.) The committee takes a certain percentage of their crop, which the government can then “give away, sell on the open market, or send overseas.” The problem should be obvious. The Fifth Amendment quite clearly states that “private property” may not be taken for “public use” without providing “just compensation.” The Hornes objected to handing over — for free — tons of raisins to the government, so they sued.

It’s a simple case, right? Determine the market value of the seized crop — taking into account artificial shortage-induced price factors — and compensate the Hornes. Well, no. It’s not simple. Feast your eyes on the array of legal defenses the feds have deployed to hang on to the Horne’s raisins:

First, the Ninth Circuit held that there was no true taking because, well, the Hornes had the option to not sell their raisins, not to let them enter the stream of commerce. Grow and eat millions of raisins in the privacy of your own home, and the feds won’t care.

Second, on rehearing, the Ninth Circuit changed its reasoning, saying the Hornes were welcome to argue that they’re entitled to compensation, but first they had to pay a fine and then file suit before the Court of Federal Claims. But since when do citizens have to front money as a precondition for vindicating constitutional rights? The Hornes appealed that order to the Supreme Court, and the Court unanimously reversed, sending the case back to the Ninth Circuit. The government, however, was just getting warmed up.

Third, on remand, the Ninth Circuit said that the “private property” in the Fifth Amendment primarily applies to real property (land) and not personal property (for example cars, boats, PlayStations, and raisins.) This is simply a stunning argument. But stunning or not, that’s the government’s case, and it’s sticking to it.

Oh, and fourth, the Ninth Circuit also said that the Horneses still derive some economic benefit from the seized raisins, including occasional small financial distributions back to farmers as well as the enjoying the benefits of artificially increased prices, so they’ve not been deprived of “just compensation.”

The Hornes appealed, and this morning they were back before the Supreme Court — for an extraordinarily rare second argument in the same case — as part of a years-long effort to apply one of the simplest sentences in the United States Constitution. I wish them luck, but when this is what it takes to implement among the oldest and most widely-accepted American constitutional protections, then even victory will be bittersweet indeed.

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