The Supreme Court today decided Horne v. Department of Agriculture, holding that governmental dispossession of personal property is a per se taking, thus extending the principle laid down in Loretto v. Teleprompter. A government marketing order required handlers of raisins to fork over a portion of their crop to the government. In the years relevant to the litigation, the Hornes were required to surrender 47% and 30% of their crop. The government disposed of the seized raisins as it saw fit and, after deductions for various expenses, paid the handlers their pro rata share of the net realized. In one year that was zero; in another it was less than the production cost. The Hornes refused to give up the portion of the crop that the government demanded and were assessed a fine equal to the market value of the raisins -- about $483,000 -- plus civil penalties in the amount of another $200,000. Today's decision extended Loretto: "Nothing in the text or history of the Takings Clause, or our precedents, suggests that the rule is any different when it comes to appropriation of personal property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home." The fact that the Hornes had a contingent financial interest in the seized raisins was irrelevant. Physical dispossession triggers the duty to pay just compensation. A regulatory restriction on use, by contrast, implicates the Penn Central balancing test. " But once there is a taking, as in the case of a physical appropriation, any payment from the Government in connection with that action goes, at most, to the question of just compensation." Nor could the seizure be supported by contending that it was a condition to engage in interstate commerce. "The Government contends that the reserve requirement is not a taking because raisin growers voluntarily choose to participate in the raisin market. According to the Government, if raisin growers don’t like it, they can 'plant different crops,' or 'sell their raisin-variety grapes as table grapes or for use in juice or wine.''" But Loretto "rejected the argument that the New York law was not a taking because a landlord could avoid the requirement by ceasing to be a landlord."
Justice Breyer, joined by Justices Ginsburg and Kagan, argued that the case should be remanded to the Ninth Circuit to determine the amount of compensation. They contended that to do so the court must "set off from the value of the portion that was taken the value of any benefits conferred upon the remaining portion of the property." The majority would have none of this: "The Government has already calculated the amount of just compensation in this case, when it fined the Hornes the fair market value of the raisins: $483,843.53. The Government cannot now disavow that valuation."
Of course the government could accomplish the same end by exercising its commerce power to place limits on the amount of raisins that may be produced. But the "Constitution ... is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be 'consist[ent] with the letter and spirit of the constitution.'” McCulloch. Aside from agricultural support programs, however, Horne establishes that there is no difference between a physical dispossession of personal or real property. Each is a per se taking. In future cases presumably there will be no occasion to argue that the value of the personal property taken should be offset by some benefit received from the loss. If the government takes your Hummer, which guzzles gas at 15 mpg, you need not seek to rebut the government's claim that the market value of your Hummer should be reduced by the benefit to you of fewer carbon emissions or savings you might accomplish be replacing the Hummer with a Prius.
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