Horne and the Normalization of Takings Litigation: A Response to Professor Echeverria

• Date: 01 September 2013

9-2013 NEWS & ANALYSIS 43 ELR 10749

Horne and the Normalization of

Takings Litigation: A Response

to Professor Echeverria

by Michael W. McConnell

Michael W. McConnell is the Richard & Frances Mallery Professor and Director of the

Constitutional Law Center, Stanford Law School, Senior Fellow, Hoover Institution.

The last three Takings Clause decisions in the U.S.

Supreme Court1 have shared a common theme.

In each of them, t he Court has cut through the

morass of arbitrary, clause-specic rules, complications,

and obstacles to relief that have accrued over the past few

decades. I call this process “normalization”—treating Tak-

ings Clause claims as normal constitutional claims, subject

to the same procedural, jurisdictional, and remedial princi-

ples that apply to other constitutional rights. Twenty years

ago, Chief Justice William H. Rehnquist observed that

there was “no reason why the Takings Clause of the Fifth

Amendment, as much a part of the Bill of Rights as the

First A mendment or Fourth A mendment, should be rel-

egated to the status of a poor relation....”2 In recent cases,

the Court seems to be taking that observation to hear t.

Horne v. Department of Agriculture,3 in which I had the

honor to serve as counsel for the Petitioner, is part of that

trend. Although its narrow holding pertains only to cases

arising under the Agricultural Marketing Agreement Act

(AMA A),4 it likely will have wider ramications. e logic

of the opinion undermines much of the nonsense about

“ripeness” that has plagued Takings Clause cases since the

mid-1980s. e decision could perhaps pave the way for a

restoration of the place of equitable remedies in Takings

Clause jurisprudence.

Prof. John Echeverria’s Comment elsewhere in this vol-

ume5 provides a lucid and insightful introduction. I shall

1. Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 43 ELR

20140 (2013); Horne v. Dep’t of Agric., 133 S. Ct. 2053, 43 ELR 20122

(2013); Ark. Game and Fish Comm’n v. United States, 133 S. Ct. 511, 42

ELR 20247 (2012).

2. Dolan v. Tigard, 512 U.S. 374, 392, 24 ELR 21083 (1994).

3. 133 S. Ct. 2053, 43 ELR 20122 (2013).

4. Ch. 296, 50 Stat. 246 (1937) (codied as amended in scattered sections of

7 U.S.C.).

5. John Echeverria, Horne v. Department of Agriculture:: An Invitation to

Reexamine “Ripeness” Doctrine in Takings Litigation, 43 ELR 10735 ((Sept.

2013).

take his analysis of the Horne decision as a starting point,

show where (I think) it falls short, and take issue with its

too-quick discussion of the ultimate merits.

I. “Jurisdictional” Issues: Where and

When to Sue, and for What Relief

Professor Echeverria is rightly scornful of the mishmash

of inc onsistent and unexplained exc uses courts have

oered in the past for denying Takings Clause claim-

ants the right to pursue normal constitutional remedies in

the normal way in t he normal courts at the normal time.

e U.S. Court of Appeals for the Ninth Circuit’s “con-

fusing ruling” that the Hornes could not bring a takings

challenge to an agency order that they hand over either

three million pounds of raisins or t he monetary equiva-

lent for public use without any guarantee of compensation

is, to Echeverria, a prime example of the jurisprudential

mess.6 According to Echeverria, the Ninth Circuit “alter-

nately described the defect in the case in three alternative

ways: a s a lack of ‘jurisdiction,’ a lack of ripeness, and a

failure to state a claim upon which relief can be granted.”7

As he shows, those are inconsistent theories.8 I will not

rehearse his ana lysis; I merely refer the reader to his splen-

did discussion.

Echeverria c orrectly points out that “ripeness,” prop-

erly understood, has not hing to do with these claims.

As the Court stated in Horne: “A ‘Case’ or ‘Controversy’

exists once the government has taken private property

without payi ng for it.”9 In Hor ne itself, any Taking s

Clause objection to the order to disgorge raisins or their

monetary value ripened a s soon as the order became

legally binding. Nor is there a ny lack of subject matter

jurisdiction. As a matter of substantive Fifth Amendment

6. Id. at 10742.

7. Id.

8. Id.

9. Horne v. Dep’t of Agric., 133 S. Ct. 2053, 2062, n.6, 43 ELR 20122

(2013).

Author’s Note: e author was counsel to the petitioners in the case

under discussion, Horne v. Dep’t of Agric., 133 S. Ct. 2053, 43 ELR

20122 (2013). is essay is written solely in an academic capacity.

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