Horne v. USDA: An Exercise in Minimalism?
During the Great Depression, Congress saw fluctuations of agricultural commodity prices as a cause for public concern, and set about the goal of stabilizing them. Its solution was the Agricultural Marketing Agreement Act of 1937,1 which empowered the Department of Agriculture to control prices by, among other means, issuing “marketing orders” to limit the volume of particular agricultural products that could be sold.
One such order was the Raisin Marketing Order, first adopted in 1949.2 The Raisin Marketing Order established a “raisin reserve” designed, at least nominally, to control the volume of marketed California raisins. Whether the Raisin Marketing Order achieved any public benefit has always been debatable, but its operations continued year after year until, in Horne v. USDA, the Supreme Court held that the raisin reserve requirement effected an unconstitutional taking of private property without just compensation.
Ordinarily, the effective invalidation on constitutional grounds of a regulatory regime dating back to the early days of the modern administrative state would be a remarkable event. The Supreme Court’s decision followed no fewer than six lower court and administrative decisions rejecting the petitioners’ Takings Clause arguments on various grounds (plus an earlier visit to the Supreme Court on jurisdictional issues). But, in some respects, there may be less than meets the eye. The uncompensated taking is fairly obvious; the Supreme Court applied well-established precedent and got the result that the precedents compelled. When the Court could have taken the opportunity to go beyond existing precedent, it declined to do so. Horne should therefore be placed not among cases that recognize new or expanded constitutional protections for individual rights, but among the cases that protect long-established rights from unprecedented attacks.
In Part I, I explain how the Supreme Court’s decision fits neatly within existing Takings Clause doctrine. In Part II, I address the ways in which a contrary decision affirming the Ninth Circuit panel and upholding the Raisin Marketing Order would have been the truly radical course. In Part III, I discuss one question in Horne where the Court carefully avoided deciding any more than it considered necessary, and might even have been better advised to explain more.
