The Supreme Court Holds the Just Compensation Clause Can Be Used as a Defense


Until this week, it had almost become a truism that the Just Compensation Clause only required that the Government pay for whatever property it took, and imposed no other restrictions. That is, the Just Compensation Clause is a sword, not a shield. Not so anymore. With the Supreme Court’s unanimous decision in Horne v. Department of Agriculture, property owners effectively have a taking defense, not just a taking claim, if the Government seeks to take their property.

In Horne, two raisin farmers were accused by the Department of Agriculture of failing to comply with an outmoded, New-Deal scheme of regulations issued under the Agricultural Marketing Agreement Act that required them to turn over between 30% and 50% of their yearly raisin crop to the Government, free of charge. After the Hornes were charged almost $700,000 in fines and assessments, they challenged the fines in federal district court based (in part) on the claim that the regulations violated the Fifth Amendment by taking private property, without just compensation.

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