Steal­ing is ille­gal, unless the gov­ern­ment is the thief. On Wednes­day the Supreme Court will hear a case on whether the gov­ern­ment can seize a chunk of a business’s prod­uct to reg­u­late prices. This is a big one.

Like much gov­ern­ment mis­chief, Horne v. USDA has its roots in the Great Depres­sion and fed­er­al pro­grams to prop up the price of goods by con­trol­ling sup­ply. To cre­ate raisin scarci­ty, the gov­ern­ment estab­lished a Raisin Admin­is­tra­tive Com­mit­tee that man­ages the sup­ply of raisins through annu­al mar­ket­ing orders. Raisin han­dlers must set aside a por­tion of their annu­al crop, which the feds may then give away, sell on the open mar­ket, or send overseas.

The Hornes refused to par­tic­i­pate, and in a let­ter to the Agri­cul­ture Depart­ment they called the pro­gram “a tool for grow­er bank­rupt­cy, pover­ty, and invol­un­tary servi­tude.” The raisin police were not amused. The Raisin Admin­is­tra­tive Com­mit­tee sent a truck to seize raisins off their farm and, when that failed, it demand­ed that the fam­i­ly pay the gov­ern­ment the dol­lar val­ue of the raisins instead.

The Hornes say this raisin toll is an uncon­sti­tu­tion­al seizure of their prop­er­ty. Under the Fifth Amendment’s Tak­ings Clause, “pri­vate prop­er­ty” shall not “be tak­en for pub­lic use, with­out just com­pen­sa­tion.” That clause is typ­i­cal­ly under­stood to make it ille­gal for the gov­ern­ment to grab hous­es, cars or even raisins.

The Fed­er­al Cir­cuit, which hears many tak­ings cas­es, as well as the Fifth, Sixth, Sev­enth, Tenth and D.C. Cir­cuit Courts of Appeal have all held that the full pro­tec­tion of the Tak­ings Clause does apply to the gov­ern­ment seizure of per­son­al prop­er­ty. A farmer should have no less right to the raisins grow­ing on his land than he does to the land itself.

…The Horne case is one of the most sig­nif­i­cant prop­er­ty rights cas­es in years—probably since the Court’s infa­mous 5–4 rul­ing in 2005 in Kelo v. New Lon­don, which allowed the gov­ern­ment to take Susette Kelo’s home so a devel­op­er could replace it with con­dos and stores near a Pfiz­er Corp. office. The major­i­ty Jus­tices in Kelo have a lot to answer for. This is a chance to make par­tial amends.

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