Monday, June 22, 2015

Raisin the Bar – Wall Street Journal

It was like taking candy from a baby, except that Marvin and Laura Horne are grown up and the food in question is a healthy snack, which they themselves did not intend to consume. The Hornes, who own a raisin farm in California won a property-rights victory this morning when the U.S. Supreme Court held, in Horne v. Department of Agriculture, that the government violated the Fifth Amendment when it seized their raisins without paying "just compensation."

The Hornes are subject to a federal "marketing order," a New Deal creation that controls the market in an agricultural commodity. The raisin marketing committee is overseen by a body called the Raisin Administrative Committee, essentially a cartel that fixes prices by controlling supply. Writing for the court, Chief Justice John Roberts explains how the system works (citations omitted here and in subsequent quotes):

Growers generally ship their raisins to a raisin "handler," who physically separates the raisins due the Government (called "reserve raisins"), pays the growers only for the remainder ("free-tonnage raisins"), and packs and sells the free-tonnage raisins. The Raisin [Administrative] Committee acquires title to the reserve raisins that have been set aside, and decides how to dispose of them in its discretion. It sells them in noncompetitive markets, for example to exporters, federal agencies, or foreign governments; donates them to charitable causes; releases them to growers who agree to reduce their raisin production; or disposes of them by "any other means" consistent with the purposes of the raisin program. Proceeds from Committee sales are principally used to subsidize handlers who sell raisins for export (not including the Hornes, who are not raisin exporters). Raisin growers retain an interest in any net proceeds from sales the Raisin Committee makes, after deductions for the export subsidies and the Committee's administrative expenses. In the years at issue in this case, those proceeds were less than the cost of producing the crop one year, and nothing at all the next.

The Hornes are growers as well as handlers; they produced some of the raisins in question themselves and acquired some from other producers, "paying those growers in full for all of their raisins, not just the free-tonnage portion." In 2002 "the Government sent trucks to the Hornes' facility at eight o'clock one morning" to pick up the reserve raisins. They said no dice. The government ultimately fined them some $ 480,000, the market value of the raisins, plus "an additional civil penalty of $ 200,000."

Today's decision does not invalidate marketing orders, which the high court has long permitted under the rubric of Congress's authority to regulate interstate commerce. Nor does it expand the court's jurisprudence in the area of "regulatory takings," which in some cases permit property owners to recover compensation when deprived of some uses of their property while maintaining physical ownership.

Rather, the court held that when the government "physically takes possession" of property, that constitutes a "per se taking," as distinct from a regulatory one, so that just compensation is required—and that applies to personal property as much as to real estate. That was enough of a commonsense conclusion to draw the assent of eight justices, with only Sonia Sotomayor in dissent.

Also by 8-1, the court rejected the USDA's contention that the promise of a share of proceeds from the reserve raisins' sale was sufficient to meet the constitutional requirement of just compensation. But as to what would be sufficient, the eight-justice majority splintered 5-3, along familiar lines.

Writing for the court, Chief Justice Roberts concluded:

The Government has already calculated the amount of just compensation in this case, when it fined the Hornes the fair market value of the raisins: $ 483,843.53. The Government cannot now disavow that valuation, and does not suggest that the marketing order affords the Hornes compensation in that amount. . . . The Hornes should simply be relieved of the obligation to pay the fine and associated civil penalty.

Justices Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan would have sent the case back to the lower courts. In a partial dissent, Breyer argued for the troika that the marketing order's artificial inflation of the price of raisins should be taken into account in calculating compensation: "A court should deduct from the value of the taken (reserve) raisins any enhancement caused by the taking to the value of the remaining (free-tonnage) raisins."

That "would be a fruitless exercise," Justice Clarence Thomas punned in a brief solo concurring opinion. He argues that the Fifth Amendment likely prohibits the taking altogether because it permits takings only for public use:

It is far from clear that the Raisin Administrative Committee's conduct meets that standard. It takes the raisins of citizens and, among other things, gives them away or sells them to exporters, foreign importers, and foreign governments.

Alas, the high court rejected that line of thinking a decade ago tomorrow in Kelo v. City of New London.

Justice Sotomayor, for her part, rejected the claim that the Raisin Committee had engaged in a per se taking. In her view, "the Hornes . . . retain at least one meaningful property interest in the reserve raisins: the right to receive some money for their disposition," and therefore the taking should be construed as a regulatory one:

I know of no principle . . . providing that if the Government achieves a permissible regulatory end by asking regulated individuals or entities to physically move the property subject to the regulation, it has committed a per se taking rather than a potential regulatory taking.

That "asking" is telling, isn't it?

The justices were unanimous on one point: "Raisins . . . are a healthy snack," the chief justice observed in a portion of the opinion that Breyer, Ginsburg and Kagan joined. "I could not agree more," Sotomayor averred in a footnote.

That is mere dicta. But the California Raisin Marketing Board will be forgiven if it treats it as authoritative.

History Repeats
The Washington Post reports on the process that yielded last week's papal encyclical on so-called climate change:

Pope Francis was about to take a major step backing the science behind human-driven global warming, and Philippe de Larminat was determined to change his mind.

A French doubter who authored a book arguing that solar activity—not greenhouse gases—was driving global warming, de Larminat sought a spot at a climate summit in April sponsored by the Vatican's Pontifical Academy of Sciences. Nobel laureates would be there. So would U.N. Secretary General Ban Ki-moon, U.S. economist Jeffrey Sachs and others calling for dramatic steps to curb carbon emissions.

After securing a high-level meeting at the Vatican, he was told that, space permitting, he could join. He bought a plane ticket from Paris to Rome. But five days before the April 28 summit, de Larminat said, he received an e-mail saying there was no space left. It came after other scientists—as well as the powerful Vatican bureaucrat in charge of the academy—insisted he had no business being there.

"They did not want to hear an off note," de Larminat said.

What could possibly go wrong? Well, read this 2012 Reuters report:

They were dismissed as prophets of doom. Now, as the euro struggles to survive, long-standing critics of Europe's single currency are more like prophets in their own time. . . .

After attending one European Commission meeting in the early 1990s for a report to trumpet the gains the euro would bring, [economist Paul] De Grauwe said he and other skeptics were not invited back.

"The idea that you needed a political union, up to just recently, wasn't taken seriously. Now everyone is saying this," he added. De Grauwe, a Belgian, also suspects his views doomed his candidacy for the ECB's Executive Board in 2003.

Some of his warnings seem chillingly prescient.

Economist Ruth Lea, a long-time British critic of the single currency, also knows what it is like to be on the outside.

She recalls how she was heard in stony silence at a Dublin conference in 1993 when she outlined her doubts about the euro.

"They did not want to hear. It was almost a thought crime," said Lea, economic adviser to the Arbuthnot Banking Group in London.

The real question is: What could possibly go right?

Reductio ad Absurdum Land Speed Record

  • "Cory Bernardi Possibly Just Compared Transgender People to a Cat Identifying as a Dog"—headline, BuzzFeed, June 16
  • "Cat Named Dog of the Year"—headline, Patch.com (Venice, Calif.), June 19

Worst Appeals to Authority
"At least 425 military men have been awarded the prestigious Congressional Medal of Honor for fighting or killing Native Americans, according to the U.S. Army Center of Military History. . . . Over the years, Native American leaders and activists have called upon the U.S. government to rescind the 20 medals awarded to the soldiers following the Wounded Knee Massacre. Film director and Vietnam veteran Oliver Stone has also said they should be repealed."—IndianCountryTodayMediaNetwork.com, June 18

False Dilemma Fallacy
"Benghazi Investigators Ponder: Is State Dept. Lying, or Is Hillary?"—headline, Washington Examiner, June 18

Other Than That, the Story Was Accurate
"An earlier version of this article described David Lane incorrectly. He was serving a 190-year sentence when he died in 2007; he is not currently serving the sentence."—New York Times, June 20

We Blame George W. Bush's Id
"Brian Williams Apologizes, Blames His Ego for Telling False Tales"—headline, USA Today, June 19

Make That 13

  • "Americans Rank the Nation's 12 Biggest Problems"—headline, Houston Chronicle, March 14, 2014
  • "Hillary Clinton's Hamptons Quandary"—New York Times website, June 21, 2015

Make That 19

  • "18 Dangerous Monsters Who Need to Be Stopped"—headline, The42.ie, June 19
  • "Republicans Really Not Happy John Kasich Told Them They Are Monsters"—headline, NYMag.com, June 19

Generalissimo Francisco Franco Is Still Dead

  • "Paul Ehrlich Still Pushing Ecological Doomsday"—headline, National Review Online, June 20
  • "Trump Still Hasn't Filed as a Candidate With the FEC"—headline, Federalist, June 19

To Serve Man
"NYC Rent Protesters Ask Cuomo: 'Did Money Eat Your Humanity?' "—headline, Gothamist, June 19

Problem and Solution—I

  • "Judd Gregg: Clinton's Substance-Free Campaign"—headline, TheHill.com, June 22
  • "Top Hillary Clinton Officials Hear From Substance Abuse Community in Iowa, New Hampshire"—headline, Puffington Host, May 31

Problem and Solution—II

  • "Has the Pope Condemned the Use of Air Conditioning?"—headline, CatholicHerald.co.uk, June 19
  • "Cool It With the Celebrations of the New $ 10 Bill"—headline, Salon, June 20

Problem and Solution—III

  • "Today's College Grads Want to Make a Difference"—headline, Boston Globe, June 18
  • "Most in U.S. Say Low Gas Prices Make Difference in Finances"—headline, Gallup.com, June 12

Problem and Solution—IV

"Fish and Game Department Looking for Turkey Counters"—headline, Associated Press, June 20, 2015

"US-Turkey Counter-Terrorism Cooperation to Continue"—headline, Hurriyet Daily News, 2008 (date unspecified)

Problem and Solution—V

  • "Monica Conyers Suing Romulus McDonald's Over Cut Finger"—headline, News-Herald (Southgate, Mich.), June 19, 2015
  • "Remus and Zimmerman on The Corporate Settlement Mill. Do they threaten the rule of law?"—tweet, @btSMU (Beth Thornburg, Southern Methodist University law professor), March 28, 2014

Problem and Solution—VI

  • "Angie Harmon: Doctor Told Me I 'Have No Butt' "—headline, FoxNews.com, June 17, 2015
  • "Radiation Meeting Full of Ifs, Ands and Buts"—headline, Observe & Reporter (Washington, Pa.), May 2, 1981

Cause and Effect

  • "Dumped Husband Saws All of Couple's Shared Belongings in Half"—headline, SFGate.com, June 20, 2015
  • "Magician's Trick Brings Divorce"—headline, Toledo Blade, Aug. 15, 1968

If Offered a Snack in the Lab, Take the Pretzels
"Researchers Across the Country Are Putting Organs on Chips"—headline, Washington Post, June 19

Hey, Kids! What Time Is It?
" 'It's Time to Hold Physical Cash,' Says One of Britain's Most Senior Fund Managers"—headline, Daily Telegraph (London), June 20

Question and Answer—I

  • "Editorial: How to Pump Up the Presidential Debates"—headline, Chicago Tribune, June 22, 2015
  • "Pump Up the Bass: Voters Prefer Deep-Voiced Politicians"—headline, Time.com, Nov. 15, 2011

Question and Answer—II

  • "America Is Angry, Very Angry. Why That's Not All Bad"—headline, NPR.org, Feb. 13, 2012
  • " 'Wait Wait': NPR Fans Mad About Kim Kardashian"—headline, CNN.com, June 19, 2015

Man Bites Downward Dog—Now That Would Be News
"Doga: How Yoga Can Be Good for Dogs Too"—headline, Daily Telegraph (London), June 19

Look Out Below!
"General Mills to Drop Artificial Ingredients in Cereal"—headline, Associated Press, June 22

It's Always in the Last Place You Look
"There's a Public Typewriter Booth In Tompkins Square Park"—headline, Gothamist, June 20

Mad Libs
"Cher Threatens to Move to Jupiter If Donald Trump Is Elected President"—headline, TheWrap.com, June 19

News of the Oxymoronic
"A Child Born Today May Live to See Humanity's End, Unless . . ."—headline, Reuters website, June 18

Breaking News From 1965
"Fix Troubled Communities by Focusing on Root Causes of Poverty, Not Policing"—headline, Washington Post, June 20

Breaking News From 2006
"Operation Replace Jeb Bush"—headline, Politico.com, June 19

Breaking News From February
"MARTIN SAMUEL: Seattle's Football Fever Could See the Mighty NFL Heading for a Fall"—headline, Daily Mail (London), June 22

Bottom Story of the Day
"Boy, Are Ghoul Michael Moore's ASININE Tweets on Charleston Shooting the Most Maddening We've Seen"—headline, Twitchy.com, June 19

Veteran Musician
In a Billboard interview, musician James Taylor tells the backstory behind one of this year's more embarrassing diplomatic efforts:

In January, after the Charlie Hebdo murders in France, you sang "You've Got a Friend" at a rally in Paris, which Secretary of State John Kerry attended. How did that come about?

At the time of the attacks, my wife and I were in Switzerland, taking vacation time before I went to Paris to do press for a tour of Europe. John and Teresa Kerry are, I would say, our good friends. Kim was texting him after the attacks and said, "John, I think you need to go to Paris." They were having a solidarity march two days after the attack. But John had to be in Peshawar [Pakistan], for a secret meeting. He said, "I'll be there as soon as I can."

When he came to Paris, we had dinner and he said, "I'm giving a speech with the mayor tomorrow. James, will you sing 'You've Got a Friend'?" It was done at the drop of a hat.

Kerry wasn't kidding when he said, "I have the hat to this day."

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(Carol Muller helps compile Best of the Web. Thanks to Mark Zoeller, Tony Lima, Steve Bunten, Jameson Campaigne, Ray Hull, Wes Van Fleet, Robert Lamoureux, Macrena Sailor, Stewart Seman, Norman Blanton, Bob Wukitsch, Steve Thompson, Stefan Sharkansky and Irene DeBlasio. If you have a tip, write us at opinionjournal@wsj.com, and please include the URL.)

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