SCOTUScast 4-24-15 featuring John Elwood John Elwood April 24, 2015
On April 23, 2015, the Supreme Court heard oral argument in Horne v. Department of Agriculture. This case presents three questions. The first is whether the government is required by the Fifth Amendment to pay just compensation when seizing personal property as it must do for real property. The second question is whether the government is exempt from paying just compensation when it seizes personal property if the owner of the property maintains a "contingent interest" in a share of the value of the property. The third question is whether the government's requirement that property owners hand over specific property in order to be permitted to put their crop on the market amounts to a taking.
To discuss the case, we have John Elwood, who is a partner in the Washington, DC office of Vinson&Elkins. Environmental Law & Property Rights Practice Group Podcast
John Elwood April 23, 2015
Under the Agricultural Marketing Agreement Act of 1937, the USDA has authority to regulate the sale of certain agricultural products, including California-grown raisins, through the use of “marketing orders.” The marketing order specific to California-grown raisins directs the Raisin Administrative Committee, a branch of the USDA, to establish a yearly raisin tonnage reserve requirement. Every year in February, raisin farmers are told what percentage of their crop is the “reserve requirement” they must turn over to the Committee. Failure to comply results in fines and penalties. In 2002 and 2003, the Horne family refused to comply and was fined over $700,000. In a 2013 decision, the United States Supreme Court unanimously held that regulated entities cannot be compelled to pay regulatory fines before they may contest their constitutionality, under the Fifth Amendment’s protection against uncompensated government seizure of private property (the Takings Clause). On remand in Horne, the federal district court and the Ninth Circuit Court of Appeals found that there was no taking. The Supreme Court heard oral arguments on April 22, 2015, and considered three questions: (1) Whether the government's “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property” applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government's discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.
Short video with Ilya Somin discussing Horne v. USDA
- John Elwood, Partner, Vinson & Elkins LLP
Ilya Somin April 21, 2015
George Mason Law School Professor Ilya Somin previews an upcoming Supreme Court case in which Farmer Horne objects to an obscure government program stemming from 1930’s New Deal legislation in which raisin farmers are required to surrender a percentage of their crop to the Raisin Administrative Committee. Petitioner and farmer Horne claims that being forced to turn over a percentage of his raisin crop to the government violates the Takings Clause of the 5th Amendment. The government asserts that the Takings Clause does not apply to personal property, and even if it did, that Horne is fairly compensated because his overall profits are increased.
Professor Somin co-signed the amicus brief of Constitutional and Property Law Scholars in support of petitioner.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.