Letson B. Douglass 

The United States Supreme Court Justices have become very familiar with raisins over the past two years. The Hornes, raisin farmers in California, filed suit against the federal government in 2009, alleging that the requirements of a governmental program, left over from the New Deal era, constituted a taking under the Fifth Amendment.[1] This program compelled raisin handlers in California to reserve a certain quantity of their crop each year for the federal government, free of charge. The Hornes demanded just compensation for those reserved raisins. The case first appeared before the Supreme Court in 2013,[2] was remanded to the 9th Circuit,[3] and returned to the Supreme Court in 2015.[4]

Chief Justice Roberts, writing for the majority in the 2015 Horne decision, held that the raisin reserve program constituted a taking under the Fifth Amendment.[5] In doing so, the Court created a per se takings rule for government seizures of personal property.[6] According to the Court, any governmental program that requires individuals to set aside personal property for use by the federal government amounts to a taking and therefore requires just compensation. Prior to this decision, the Court had only applied per se taking rules to governmental seizures of real property, and only in limited circumstances.[7]

While a reserve requirement for raisins seems like a minor issue, the Court’s decision in Horne v. Department of Agriculture will have a major impact on governmental programs going forward. The Court’s holding in the 2015 Horne case is problematic, in part because the Court’s reasoning departed from established case law, but primarily because the Court failed to outline any exceptions to this new rule. It is still uncertain how the new rule will be applied, but it will only be a matter of time before property owners challenge other governmental programs as takings under the new Horne rule.

This note will dissect the new per se taking rule outlined in the 2015 Horne decision, compare it the other taking per se rules created by the Supreme Court, and identify the potential consequences on other existing governmental programs like the raisin reserve requirement. Finally, this note will look at ways to interpret the Horne decision that makes the enforcement of this new rule more feasible.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] The program, promulgated by the Department of Agriculture in accordance with the Agricultural Marketing Agreement Act of 1937, was designed to stabilize raisin prices. Horne v. Dep’t of Agric., 135 S.Ct. 2419, 2424 (2015).

[2] Horne v. Dep’t of Agric., 133 S.Ct. 2053 (2013).

[3] Horne v. U.S. Dep’t of Agric., 750 F.3d 1128 (9th Cir. 2014).

[4] Horne, 135 S.Ct. at 2053.

[5] Id. at 2428.

[6] Id. at 2425.

[7] Horne, 750 F.3d at 1138–39. (Judge Hawkins, the Ninth Circuit Judge who wrote the 2014 Horne decision, highlighted three categories of per se takings that the Supreme Court has identified over the years. First, permanent, physical invasions of real property constitute a per se taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982). Second, government regulations that deprive owners of all economic benefits of their real property are a per se taking. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029 (1992). Third, certain conditions on the grant of a land use permit that requires the surrendering of property can amount to per se takings. Nollan v. California Coastal Commission, 483 U.S. 825, 837 (1987); Dolan v. City of Tigard, 512 U.S. 374, 391 (1994).).