VOLUME 7 - 2014-2015 - ISSUE 2

7 Ky. J. Equine, Agric. & Nat. Resources L. 399 (2015).


Note Written By: Thomas E. Travis

Despite the federal courts' defense of the status quo, the Roberts Court has signaled hope that a property rights renaissance might be on the horizon, and it could arrive in the near future. One case in particular, Horne v. Department of Agriculture, presented bold challenges to constitutional precedent that the Court has yet to address. Essentially, the Hornes contend that being required to hand over a percentage of their crop to the government amounted to an unconstitutional taking under the Fifth Amendment. Instead of issuing a constitutional decision, the Supreme Court initially turned to a very narrow, yet unanimous ruling on its first look at the case. On remand, the Ninth Circuit entered judgment upholding the marketing orders. On September 8, 2014, the Hornes filed a petition for certiorari, allowing the Roberts Court a second crack at the merits. The case is now back to the Supreme Court, providing a rare second look at this case. Signals, however, from the first round of hearings in the Supreme Court suggest that the Court may be willing to free producers and consumers from outdated, tyrannical statutes. Moreover, the subtleties also signal a potential remodeling of constitutional property law, creating clearer and more distinct Takings Clause principles.

Part I of this note investigates the historical justification of the Takings Clause, and its clouded treatment following the New Deal makeover of the Commerce Clause. Part II explains the nuanced distinctions in current Takings Clause jurisprudence, and the categorical differences between possessory and regulatory takings. Part III details the background and issues in Horne, the missed opportunity for the Roberts Court, and its present opportunity to issue a bold statement in favor of property rights. Finally, Part IV illustrates why a takings challenge to agricultural marketing orders should succeed and how it may prove as an inherent constitutional limitation to Commerce Clause authority.