Reason Foundation Supreme Court Amicus Brief: Horne v. U.S. Department of Agriculture

The government’s overbroad reading of Williamson County imposes unfair burdens on property owners and should be rejected

Filed by the Reason Foundation, Cato Institute, National Federation of Independent Business, and Center for Constitutional Jurisprudence:

Amici, described fully in the Appendix, are advocates who believe that the right to keep and control one’s own property is among the most fundamental rights protected by the Constitution, and that the government should not make property owners suffer needless burdens in order to vindicate those rights.

This case involves one such burden. In the government’s view, property owners who have been wrongfully ordered to pay the government money—in proceedings the government itself initiated—should not at that time be permitted to invoke the Takings Clause in their defense. Instead, the government says, after litigating all other constitutional and statutory defenses, such property owners should have to hand over their money. They should then have to go to a different forum, the Court of Federal Claims, and file a separate suit against the government under the Tucker Act just to make their takings defense “ripe.” Only then, in the government’s view, should a court decide whether the monies the property owners had to pay were unconstitutional takings. And if they were, only then would the property owners receive their money back.

This Rube Goldberg approach to adjudicating takings claims serves no valid purpose. And for that reason, a plurality of this Court squarely rejected it in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). The plurality—consisting of all Justices who reached the issue—rightly recognized that having to jump through such hoops to assert a takings claim “would entail an utterly pointless set of activities.” Id. at 521 (quotation omitted). The Court should reaffirm that ruling here.

In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), this Court held that a government taking of real or tangible personal property is not ripe for challenge until a property owner has sought mone- tary compensation for the property that has been taken. In federal cases, that means a suit for damages in the Court of Federal Claims under the Tucker Act. Id. at 195. But where the government takes a party’s money rather than its real or tangible person- al property, Williamson County’s ripeness rule makes no sense—the government does not take money, only to give it right back in the form of “compensation.” The plurality in Apfel thus recognized an exception to the rule of Williamson County for takings of money.

As we explain in Part I, that exception is eminently sensible. Requiring a property owner to file a separate claim for compensation serves no useful pur- pose, and it would impose substantial burdens on individual property owners—as well as small businesses like the raisin farmers here—who are already over-burdened by the cost of litigation. And in addi- tion to making no practical sense, the government’s ripeness rule also makes no constitutional sense. As we explain in Part II, neither the text of the Takings Clause nor this Court’s ripeness doctrine requires that a fine be paid before it can be challenged as an uncompensated taking.

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