BY GEORGE F. WILL
WASHINGTON — In oral arguments Wednesday, the Supreme Court will hear the government defend its kleptocratic behavior while administering an indefensible law. The Agricultural Marketing Agreement Act of 1937 is among the measures by which New Dealers tried and failed to regulate and mandate America back to prosperity. Seventy-eight years later, it is the government’s reason for stealing Marvin and Laura Horne’s raisins.
New Dealers had bushels of theories, including this: In a depression, prices fall, so a recovery will occur when government compels prices to stabilize above where a free market would put them. So FDR’s “brains trust” produced “price stabilization” programs by which the government would fine-tune the supply of and demand for various commodities. In 1949, this regulatory itch was institutionalized in the Raisin Administrative Committee. Today it wants the Hornes to ante up about $700,000. They could instead have turned over more than 1 million pounds of raisins — at least four years of their production. They have been refusing to comply with a “marketing order” to surrender, without compensation, a portion of their production for the RAC’s raisin “reserve.” The Hornes say this order constitutes an unconstitutional taking.
The Fifth Amendment says private property shall not “be taken for public use, without just compensation.” Time was, “for public use” meant for creating things — roads, bridges, dams, courthouses — used by the general public. In 1954, “public use” was broadened to allow government to take property to combat “blight,” thereby enabling “urban renewal.” Then in the infamous 2005 Kelo decision, the Supreme Court held, 5-4, that government could seize a person’s private property for the “public use” of giving it to another private party that would, by developing it, pay more taxes to the seizing government.
Perhaps the phrase “public use” is now elastic enough to encompass the seizure of raisins for the purpose of combating the Depression that ended a while ago. Or for maintaining an “orderly” raisin market. The Supreme Court must decide whether the government has inflicted on the Hornes an uncompensated taking.
Takings Clause jurisprudence is quite recondite. The government, however, says two contradictory things. It says the Hornes “acquired” raisins and hence must either surrender a large portion of them — in some years, 47 percent — or pay huge fines. But it also says the Hornes do not have sufficient ownership of the raisins to raise constitutional objections.
The government says the Hornes voluntarily entered their raisins into the stream of commerce, so they must comply with the RAC’s raisin reserve requirement. But the Supreme Court has hitherto rejected the idea that a person must give a portion of his property to the government in order to purchase the government’s permission to engage in a lawful business transaction, such as selling a commodity. The government says its required contributions to the raisin reserve merely regulates raisin sales. The Hornes say it is not a mere regulation, it is an expropriation.
The government says it owes the Hornes nothing in exchange for the raisins they supposedly owe it, because they somehow benefit from the government’s manipulation of the raisin market. The Hornes say it would be unconstitutional for the government to come on their land to confiscate their raisins or the proceeds from their raisin sales, so it is unconstitutional to fine them for not complying with an unconstitutional requirement.
Justice Elena Kagan has wondered whether this case involves “a taking or it’s just the world’s most outdated law.” The answer is: Both. The law has spawned more than 25 “marketing orders” covering almonds, apricots, avocados, cherries, cranberries, dates, grapes, hazelnuts, kiwifruit, onions, pears, pistachios, plums, spearmint oil, walnuts and other stuff.
Government sprawl and meddlesomeness mock the idea that government is transparent. There are not enough cells in the human brain to enable Americans to know more than a wee fraction of what their government is up to. If they did know, they would know something useful — how much of what government does is a compound of the simply silly and the slightly sinister. The silly: Try to imagine the peril from which we are protected because the government maintains a spearmint oil reserve. The sinister: The government is bullying and stealing property in order to maintain programs that make Americans pay higher commodity prices than a free market would set.
Progressives say, “Government is simply the name we give to the things we choose to do together.” That is not how the Hornes are experiencing government.
George F. Will is a columnist for the Washington Post Writers Group.