We seem to recall that years ago Irving Younger (according to our memory) wrote a tongue-in-cheek article proposing that courts should be able to declare statutes invalid on grounds of stupidity. If ever a statute met that criterion of invalidity it’s the one in the brand-new California Raisins case — Horne v. Department of Agriculture that came down from SCOTUS unanimously, yesterday.
What it involved is the feds demanding that a raisin grower-handler turn over 40% of his raisin crops to the feds as a freebie, and failing that, pay some humongous fine — like $400,000. Why would the feds want to do that? Because the theory behind this plain though brazenly uncompensated taking was the Depression era notion that if you reduce supplies, prices would go up, and removing a bunch of raisins from the market would allow raisin farmers to charge more for their remaining raisins. Let that sink in: it was the Great Depression time; people were literally starving, but Uncle Sam in his, er, wisdom came up with a scheme to reduce food supplies, thereby increasing the prices of remaining food to help out farmers at the expense of consumers who had to stand in soup lines to feed themselves and their children.
Anyway, what is in issue is not even the question whether this scheme is an uncompensated taking, but what hoops must the aggrieved raisin farmer/handler jump through to get a court — any court — to consider the validity of this “regulation” (whether an uncompensated taking) on the merits. Sheesh! Are these people wacko? The feds come along and borrowing the phrasing of highwaymen of yore, say “Your raisins or your money — some $400,000 of it, if you please. Or if you prefer, you can pay the aforementioned 400 grand up front, and then slog through an administrative swamp.” So the aggrieved folks go to court: Surely, they naively believe, those wise, fair minded judges will provide justice. Right? Wrong! It turns out that taken together, those fair-minded geniuses can’t even agree which court has jurisdiction to hear the case.
We are on the road, using an unfamiliar computer, so we will spare ourselves a lot of frustrating hunt-and-pecking, and suggest that you check out the June 10th post of Prof. Ilya Somin on the Volokh Conspiracy which will tell you more about this case than you want to know, although being a serious academic, Prof. Somin says nothing about the stupidity of it all. Oh well, as the punch line to a great old Jewish joke goes: “So from this Einstein makes a living?” Evidently so. And not just Einstein but a bunch of lawyers of all denominations.
We claim no particular knowledge of federal agricultural regulatory stuff, but it turns out that there are other, similar regulations — after all, the Great Depression ended over a half-century ago, but there are still similar regulatory federal statutes dealing with other produce on the books. So we can’t wait for the aftermath.
Follow up. We urge our readers, especially those with an interest in the “California Raisins” case, to check out the posts of our esteemed colleague Robert Thomas — www.inversecondemnation.com — dated June 10 and June 11, 2013. His analyses (several) are by far the best and unlike the academic ones provide practical pointers on the impact of Horne on this type of litigation. Also, he points out that Horne punches a large hole through the notion that just compensation is the sole remedy in takings cases. That is a constitutional rule, but there are also statutory remedies that provide for non-monetary, specific remedies, as does Horne itself by holding that a taking claim may be raised as a substantive issue in cases where the feds are doing the suing as well as the taking. Altogether, a nifty write-up — make it write-ups — of the Horne case.
And of course, Mr. Thomas get a big brownie point for repeatedly posting the famous commercial showing the California Dancing Raisins. Finally our kudos to Justice Kagan for observing in oral argument that this case may have dealt with the most outdated statute around. Indeed, except “outdated” seems to us to be rather mild under the circumstances.