Using Takings to Undo Givings
In Horne v. United States, the 2015 Supreme Court ruled that the reserve requirement in a raisin marketing order required compensation under the Fifth Amendment.1 Horne has attracted attention for its implications for takings jurisprudence. Yet it is also interesting for the unlikely proposition that the plaintiff was a supposed beneficiary of a statute challenging what is, essentially, a statutory “givings” – or a government-provided financial windfall.2 This Article considers the supposed beneficiary of a statute mounting a constitutional challenges to the law. Unwilling beneficiaries mount challenges to eliminate laws that, due to changed circumstances, no longer suit them, particularly when the opposition is a minority within an industry. This Article considers the extent to which future litigation might seek to dismantle additional sections of Farm Bill Legislation,3 and other areas in which industrial conditions have shifted such that once-desirable statutory givings regimes are no longer wanted by their supposed beneficiaries.
Horne reflects the story of statutory ossification of New Deal legislation in the agricultural industry.4 In the Dustbowl era, Congress passed a series of laws permitting legalization of cartels among farmers. Marketing orders allow farmers to restrict the flow to market of agricultural commodities to promote more orderly pricing. Since passage of early Farm Bill Legislation in the 1930’s, the industrial economics of agriculture have changed profoundly. Agribusiness has shifted from millions of small farmers to a smaller number of growers, and sometimes consolidated oligopolies. Some farmers who believe they have differentiated products believe that marketing orders restrain their profits, although the orders generally benefit the growers within a specific commodity category. Some farmers believe that the laws that farmers desperately wanted in the 1930’s no longer benefit them. The statute has ossified. Farmers are using regulatory takings claims, like Horne, to dismantle the marketing order system.
The recipient of a givings legislation is maintaining the broader, overarching givings regime but creating flexibility within it to respond to changed economic circumstances through the use of judicial takings challenges. Judicial challenges to particular statutory provisions, or administration of statutes, provide an avenue for industry or nongovernmental organizations to refine legislation in response to changed circumstances. Such use of litigation provides an alternative account to statutory ossification, showing that judicial challenges can provide a mechanism through which fixed legislation remains flexible enough to respond to changed circumstances. It also presents an intriguing public choice account of how an interested minority position within an industry group can control legislation after it is enacted. Then, I briefly turn to the broader question of whether takings claims are being used to overcome statutory ossification in other instances.
