The California Dancing Raisins Case — An Exercise in Absurdity Goes to Court

If you are interested in eminent domain, you must have noted the activities of our fellow bloggers concerning the Horne case — the one where the federal government took some 40% of Mr. Horne’s raisin crop (tons of ’em), but refused to pay on the grounds that it was only “regulating” the raisin market by removing some of them from private ownership, reducing supply and thereby keeping  prices up, thereby assuring raisin growers of a proper income. This was one of those Depression-era laws that, as Justice Kagan put it during the first argument, had to be the most outdated statute. What the feds were really trying to say was: We are stealing your raisins, Mr. Horne, but it’s for your own good.

In an outstanding display of chutzpa, the feds took the position that by seizing tons of Mr. Horne’s raisins they were conferring a favor on him because his leftover raisins would bring a higher price in the government-distorted market. How could they tell? Beats us because to the best of our knowledge there has not yet been a valuation trial of either the taken or the leftover raisins. Still, the feds fined Horne over $400,000 when he refused to comply. The case has already been in the Supreme Court once before. SCOTUS reversed the 9th Circuit’s ruling in favor of the government, and held that Horne was within his rights when he sought to raise a taking defense in the US District Court when the government sought to enforce its demand. On remand, undeterred, the 9th Circuit reached the same result again on the second go-round: no taking. The Supreme Court took the case again.

Naturally, this was catnip for the eminent domain bar and pertinent blogging community. It made much of the second oral argument that took place a week ago. One argument-inspiring aspect of this controversy was the government’s contention that this outright theft of Mr. Horne’s raisins was not a taking.

So there was much to say about last week’s oral argument. You can check out the usual suspects, like for example our friend Robert Thomas’ blog on . We, however, haven’t had much to say about that because (a) we were out of town, and (b) in our opinion this is the sort of case that should be entertained by a court (much less the Supreme Court) for, oh, about five minutes. The fact that it has taken up such an enormous amount of judicial time and effort, arguing over whether an uncompensated physical seizure of tons of privately owned raisins is a taking, tells us that at least some of the Justices are struggling with result-orientation — they are overwhelmed by the sheer absurdity of the government’s position, but on the other hand are in the throes of result orientation — they want the government to win but can’t think of any way of reaching such a result without making themselves look bad.

With some 40 years of eminent domain experience under our belt, we decline to speculate about the outcome. So we will take it easy until the opinion comes down — probably by the end of June, and see what’s what.

Unfortunately, that opinion will not to say to the government what we believe it should, namely, “You guys have got to be kidding.”

So stay tuned.