In Horne v. Dep’t of Agriculture, the Supreme Court recently held that the Department of Agriculture’s confiscation of significant percentages of raisin growers’ crops, without compensation, violated the Takings Clause of the Fifth Amendment. The decision has been hailed as a victory for property rights and a rebuke to governmental overreach.
But to the contrary, Horne merely demonstrates that the Supreme Court has reduced the substantive protections of the Takings Clause to procedural formalism, rewriting the Takings Clause and its own precedent along the way.
The facts of Horne arose out of the Agricultural Marketing Agreement Act of 1937, a piece of New Deal legislation that created government cartels for certain agricultural products, including raisins, in order to subsidize and prop up their prices. To that end, the Act empowers the Secretary of Agriculture to promulgate “marketing orders” that require growers like the Hornes to give a percentage of their annual crop to the Government, for no compensation.
In 2002, the Government ordered raisin growers to hand over 47 percent of their crop. The Hornes refused. When the Government sought to collect more than $680,000 in fines and penalties, the Hornes brought suit, invoking the Takings Clause.