In Horne v. U.S. Department of Agriculture, the U.S. Supreme Court held that the Takings Clause of the Fifth Amendment to the U.S. Constitution requires that the Government pay just compensa-tion when it takes personal property, and that the Government can-not make raisin growers relinquish their property without just com-pensation as a condition of selling their raisins in interstate com-merce. Although the Horne decision sheds baleful light on a vener-able anticompetitive government-sponsored agricultural cartel pro-gram, read in isolation, its public policy implications may appear to be rather limited. Nevertheless, upon closer examination, Horne may be seen more broadly as the latest in a series of federal judicial opinions that are beginning to erode, albeit ever so slightly, the armor of judicial precedents that have allowed special interest, protectionist government laws and regulations to flourish, free from serious legal scrutiny.
This article proceeds as follows. After describing the back-ground and nature of the agricultural marketing order program at issue in Horne, it describes the Horne holding and evaluates its im-plications for marketing orders and federal special interest regula-tion. Next, it examines the Supreme Court’s 2015 North Carolina Dental Board decision, which reflects an increased willingness to subject state regulatory boards to federal antitrust scrutiny. It then explains that, taken in tandem, Horne and North Carolina Dental Board (considered in light of another relatively recent antitrust “state action” case, Phoebe Putney, plus several appeals court rulings) may hint at a gradual weakening of the routine judicial rubber stamping of governmental “public interest” regulatory schemes. Most signifi-cantly, special interest regulation may be subject to significant attack through the more robust application of equal protection analysis, even if it is only slightly constrained by takings and antitrust chal-lenges. The article then concludes that, although this may not yet be the dawn of a judicially-sanctioned “economic libertarian moment,” the distant horizon appears to be lightening a bit.
**The full text of this article can be found here.
This piece first appeared in the New York University Journal of Law & Liberty.