The Washington PostDemocracy Dies in Darkness

Slam dunk win for plaintiffs in Horne (raisin Takings case)–but I don’t fully agree

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The Supreme Court rules that requiring raisin growers to turn over a percentage of their raisins to the government constitutes a taking, and that “just compensation” consists of the market value of those raisins.

But I find myself agreeing with the partial concurrence of Justice Breyer, who would have ordered a remand to the Ninth Circuit to determine just compensation. In particular, if requiring raisin growers to turn over part of their crop to the government raised the market value of the rest of the crop, that increase in value should be subtracted from the amount of compensation due.

Instead, the majority relied on the Court’s precedents that strongly distinguish between physical takings and regulatory takings, and suggest that the former are not just per se takings, but require “per se” full compensation regardless of mitigating factors. I don’t find the physical/regulatory distinguish persuasive to begin with, and I wouldn’t have extended the dichotomy to the question of just compensation.

We are left with the strange situation in which the vast majority of “regulatory takings” are not considered constitutional takings at all, and the aggrieved owners therefore get no compensation even when government action dramatically reduces the value of their property, but property owners subject to physical takings may be overcompensated.