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01/10/2015

Will Baude on the Raisin Taking Case
Michael Ramsey

At Volokh Conspiracy, Will Baude comments on Horne v. Department of Agriculture (the raisin takings case): If this isn’t a taking, what is? and Will the Supreme Court summarily reverse the raisins case?   As Professor Baude explains:

The raisin regulations require raisin producers to reserve a portion of their crop to be sold by the government; the government determines both the portion and the price, which it sometimes sets to be basically zero. The Hornes argued that these regulations are a taking of the raisins, and that they are therefore entitled to a determination about whether the government’s chosen compensation is “just compensation” within the meaning of the Takings Clause.

Normally, when the government takes your property away from you, as opposed to regulating it, that’s a taking. I take it that if the government told me to set aside part of my land and forced me to get rid of it for a government-determined price, that would be a taking. But the Ninth Circuit concluded that wasn’t true of the raisins for two reasons — first, because they were personal property rather than real property, and second because they did not lost all of their rights in the raisins, since they “retain the right to the proceeds of their sale.”

The case is pending on petition for writ of cretiorari, with an excellent (short) amicus brief by Professors Ely, Kochan, Mossoff and Somin. Unsurprisingly, they find powerful originalist evidence that the clause fully protects (as its text indicates) to all "private property," not just just real property.