We will find out the answer to that question later this year from the United States Supreme Court in Horne v. Department of Agriculture. At issue is whether the Department of Agriculture can subject raisin farmers to a marketing order requiring the farmers to divert a certain percentage of their crop to a reserve that is run by the Raisin Administrative Committee. That committee would then decide whether to sell the reserve overseas, to federal agencies, or back to the raisin farmers.

The raisin farmers claim that the marketing order “takes” their property without just compensation, in violation of the Fifth Amendment. The Ninth Circuit Court of Appeals held that this was not a categorical, unconstitutional takings because there was no physical invasion of property and the farmers did not lose all economically valuable use of their property, and that the challenged marketing order represented a sufficient nexus with the purposes that the Department of Agriculture was seeking to achieve. Categorical or per se takings claims are based on relatively more straightforward analyses, rather than the more fluid, ad hoc, balancing-of-interests test that other takings claims are subject to. The raisin farmers chose to argue that the marketing order effected a per se takings, and did not argue under the ad hoc analysis.

The Supreme Court has accepted the case and will consider whether the marketing order is a categorical takings of property requiring just compensation. The Ninth Circuit, in its opinion, identified the Supreme Court’s major takings cases of the last 70 years, distinguishing between the various types of takings claims and their analytical frameworks in an understandable way. The question before the Supreme Court appears to be whether this precedent supports the precise takings claim alleged. It is not clear whether this is a case in which the Supreme Court will plow additional doctrinal ground.