January 01, 2016

The raisins of wrath: The Court finds a Fifth Amendment taking, but does it imply something more?

Norman A. Dupont

The Supreme Court’s holding in Horne v. Department of Agriculture, ___U.S.____, 135 S. Ct. 2419 (2015) (Horne II) appears to be a narrow opinion applicable only to a relic of the FDR era, the Agricultural Marketing Agreement Act of 1937 (1937 Act), with its antiquated reliance upon the suspect concept of economic “central planning.” But, as with many of the Court’s opinions, the reasoning suggests a possibly more significant impact. Horne II may not signal anything more than a rejection of its limited (and now outdated) marketing program, but it could presage an expanded role of Fifth Amendment takings claims in future contests over governmental restrictions on water rights and, possibly, Clean Air Act cases.

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