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Argument Recap: If Only It Were Simple…

Publication Date: 
March 20, 2013
Lyle Denniston

Excerpts from Professor Michael McConnell's oral arguments in Horne v. Department of Agriculture are quoted by SCOTUSblog's Lyle Denniston in which McConnell discusses how the case has a "surprising number of difficult merits issues working."

A portentous constitutional issue hung in the air Wednesday as the Supreme Court examined government seizures of private property, and everybody seemed to want to have it decided. But it was almost totally lost in a fog raised by a perplexing array of minutiae about how the government tries to push up the price of raisins. The cloud was so thick that even a highly respected professor and former judge misspoke twice in describing his clients' role.


The case was Horne v. Department of Agriculture (12-123), and it began with Michael W. McConnell, now of Stanford Law School and formerly a judge on the Tenth Circuit Court, saying that the case had "a surprising number of difficult merits issues working." But it quickly descended into baffling complexity when Justice Sonia Sotomayor jumped in to try to sort out whose property was taken, if anybody’s was, and whether the seized property was raisins or money. Actually, said McConnell, representing California vineyards, it was both.




The government has been regulating the marketing of California raisins (the source of almost all the raisins that Americans consume) for the past sixty-four years, but until McConnell’s clients decided a decade ago that they no longer wanted to go along with the program, its constitutionality had never seemed in doubt. And the task that now falls to the Supreme Court is to decide who could raise that issue, and in which court. Wednesday’s hearing made abundantly plain that neither is a simple issue.




It was, perhaps, not at all surprising when McConnell twice referred to his clients as “producers” when he clearly meant “handlers” (and he promptly corrected himself), because the Agriculture Department along the way has treated them as both, and there was no firm indication that any of the nine Justices was really clear on which was which. It was in the vineyards’ capacity as “handlers” that the Department hit them with a $483,843.53 civil fine for not transferring a part of two years’ worth of crops into the government’s off-market bin — a fine to which the very same vineyards would have been immune in their capacity as "producers."


As the case reached the Supreme Court, the looming constitutional issue — one with a potential impact far beyond the raisins program — is whether a government imposition of a civil fine can amount to a seizure (that is, a "taking") from the company or individual ordered to pay the fine. The Ninth Circuit Court, in the decision the Justices are reviewing at the request of McConnell’s clients, first decided that this was not a "taking," but then decided that it shouldn't have decided that at all, because the vineyards were supposed to have gone to a specialized court, the U.S. Court of Federal Claims, with their complaint.




She had put the question to McConnell, who recounted the vineyards' grievance of how they had been treated by the Circuit Court (he earlier had called it a "Catch 22″), and then commented that what the Circuit Court had done had provided everyone with "so much entertainment this morning."