Tag: farming

I Heard It Through the Grapevine That the Government Was Violating Property Rights

This blogpost was co-authored by Cato legal associate Kathleen Hunker.

Property owners shouldn’t be made to suffer a needless, Rube Goldberg-style litigation process to vindicate their constitutional rights. Yet that is exactly what the U.S. Department of Agriculture seeks to impose on independent raisin farmers Marvin and Laura Horne when they protested the enforcement of a USDA “marketing order” that demanded that the Hornes turn over 47 percent of their crop without compensation.

The marketing order—a much-criticized New Deal relic—forces raisin “handlers” to reserve a certain percentage of their crop “for the account” of the government-backed Raisin Administrative Committee, enabling the government to control the supply and price of raisins on the market. The RAC then either sells the raisins or simply gives them away to noncompetitive markets—such as federal agencies, charities, and foreign governments—with the proceeds going toward the RAC’s administration costs.

Believing that they, as raisin “producers,” were exempt, the Hornes failed to set aside the requisite tribute during the 2002-2003 and 2003-2004 growing seasons. The USDA disagreed with the Hornes’ interpretation of the Agricultural Marketing Agreement Act of 1937 and brought an enforcement action, seeking $438,843.53 (the approximate market value of the raisins that the Hornes allegedly owe), $202,600 in civil penalties, and $8,783.39 in unpaid assessments.

After losing in that administrative review, the Hornes brought their case to federal court, arguing that the marketing order and associated fines violated the Fifth Amendment’s Takings Clause. Having litigated the matter in both district and appellate court, the government—for the first time—alleged that the Hornes’ takings claim would not be ripe for judicial review until after the Hornes terminated the present dispute, paid the money owed, and then filed a separate suit in the Court of Federal Claims.

The San Francisco-based U.S. Court of Appeals for the Ninth Circuit proved receptive to the government’s about-face. Relying on Williamson County v. Hamilton Bank (1985)—the Supreme Court case that first imposed ripeness conditions on takings claims—the court ruled in a revised opinion that the Tucker Act (which relates to federal waivers of sovereign immunity) divested federal courts of jurisdiction over all takings claims until the property owner unsuccessfully sought compensation in the Court of Federal Claims. In conflict with five other circuit courts and a Supreme Court plurality, the Ninth Circuit also concluded that the Tucker Act offered no exception for those claims challenging a taking of money, nor for those claims raised as a defense to a government-initiated action.

The ruling defies both law and common sense. It stretches the Supreme Court’s ripeness rule beyond its moorings and forces property owners to engage in utterly pointless, inefficient, and burdensome activities just to recover what should never have been taken in the first place.

Cato has thus filed an amicus brief, joined by the National Federation of Independent Business, Center for Constitutional Jurisprudence, and Reason Foundation, supporting the Hornes’ request that the Supreme Court take the case and correct the Ninth Circuit’s overbroad reading of Williamson County. We argue that an unjustified monetary order is inherently a taking without just compensation and that a ruling to the contrary imposes a pointless burden on property owners, particularly when the government initiated the original proceeding.

We also encourage the Court to reconsider Williamson County, noting that the text and history of the Takings Clause don’t permit the government to defer compensation—that indeed the most natural reading of the Takings Clause demands that compensation be offered as a prerequisite to government action. Just as the Court wouldn’t permit the government to seize property without some prior “due process of law,” it shouldn’t permit the government to seize property without prior “just compensation.”

The Court has no reason to treat takings claims with less deference than rights anchored in other constitutional provisions. It will decide this fall whether to address that issue in the case of Horne v. U.S. Dept. of Agriculture.

The Feds’ Squeeze on Farmstead Cheese

This weekend the Washington Post and New York Times took a closer look at a development mentioned in this space a while back and in a related Cato audio, namely growing federal pressure on small producers of artisan and farmstead cheeses. Here’s the Post:

….artisanal cheesemakers, and their boosters in the local-food movement, say they are being unfairly targeted. They say the FDA does not understand their craft and is trying to impose standards better suited for industrial food companies. …

Listeria is ubiquitous in the environment, but the FDA has a zero-tolerance rule for it in ready-to-eat food such as cheese. If the bacteria are present, the food is considered adulterated and cannot be sold. Some countries, including cheese-loving France, tolerate minute amounts of listeria in food.

Why can’t we in America enjoy at least as much freedom at our dinner tables as the French?

Many artisan cheese producers favor the use of raw (unpasteurized) milk and the rules on that subject are coming in particular to (as it were) a non-boil. The Food and Drug Administration has long required that cheeses made from raw milk be aged for 60 days in hopes of killing all potentially harmful bacteria. Trouble is, it’s been known for a while that 60 days is not long enough to guarantee that the survival rate of such bacteria is 0.00000 percent. Here’s the Times:

The F.D.A. has not tipped its hand [on its review of the aging rule], but some in the industry fear that raw milk cheese could be banned altogether or that some types of cheese deemed to pose a higher safety risk could no longer be made with raw milk. Others say they believe the aging period may be extended, perhaps to 90 days. That could make it difficult or impossible for cheesemakers to continue using raw milk for some popular cheese styles, like blue cheese or taleggio-type cheeses, that may not lend themselves to such lengthy aging.

“A very important and thriving section of the American agricultural scene is in danger of being compromised or put out of business if the 60-day minimum were to be raised or if raw milk cheeses were to be entirely outlawed,” said Liz Thorpe, a vice president of Murray’s Cheese, a Manhattan retailer where about half the cheese is made with raw milk.

As Virginia Postrel pointed out the other day in a Wall Street Journal piece, the artisan food folks are relatively lucky: “proponents of small-scale farming are organized, ideological, and well represented in the elite media”. Other producers victimized by overreaching regulation have much more trouble getting their voices heard in New York and Washington. That’s one reason small food producers were able to achieve at least a limited and modest carve-out in the recent federal food safety bill, while small producers of children’s apparel and other craft goods continue to flounder without relief under the impossible strictures of CPSIA.

Speaking of the Times, I think it sums up everything wrong with the world that Mark Bittman has quit his stellar food column to start a NYT politics column that begins with a “manifesto” whose planks include the following public policy proposal:

Encourage and subsidize home cooking. (Someday soon, I’ll write about my idea for a new Civilian Cooking Corps.) When people cook their own food, they make better choices.

Talk about artists in uniform. Also speaking of the Times, reporter Sheryl Gay Stolberg quotes me today on Wal-Mart’s nutrition deal with Michelle Obama, which takes a series of changes the giant retailer might well have been considering anyway for market reasons, rolls it together with some long-pursued public policy objectives like getting the opportunity to open stores in big cities despite union resistance, and clothes it all in a First Lady endorsement. Clever, no?

‘Politicians’ Top 10 Promises Gone Wrong’

That’s the title of an upcoming FOX News Channel feature program with John Stossel, in which Cato Executive Vice President David Boaz and Director of Health Policy Studies Michael F. Cannon weigh in on some of the hidden, unforeseen, and unintended consequences of the attempts to deliver on promises our politicians make.

Politicians promised that:

  1. Cash for Clunkers would save the auto industry.
  2. Increasing the minimum wage would be good for the working poor.
  3. Title IX would end gender-based discrimination in college sports.
  4. Mega-construction projects like stadiums, arenas, and conference centers would create jobs.
  5. Changing the tax code would save small farmers and the environment.
  6. Credit card reform would save us from banking fees.
  7. Reforming the health care system would give us more affordable and more comprehensive care.
  8. Ethanol would reduce our dependence on foreign oil and save the environment.
  9. Home ownership for all would be good for America.

And the #1 promise politicians made that went awry?

Tune in to FOX News Channel this Friday, December 17, 2010 at 9:00 p.m. Eastern to find out. Use the #10Promises hashtag on Twitter during the program to follow the conversation.

Kindly note that while John Stossel’s programs normally air on the FOX Business Network, this feature program will appear on the FOX News Channel.

‘New Food Safety Bill Could Make Things Worse’

That’s not just my view; that’s the view of writer Barry Estabrook, an ardent critic of the food industry (“Politics of the Plate”), writing at The Atlantic. You needn’t go along completely with Estabrook’s dim view of industrialized agriculture to realize he’s right in one of his central contentions: “the proposed rules would disproportionately impose costs upon” small producers, including traditional, low-tech and organic farmers and foodmakers selling to neighbors and local markets. Even those with flawless safety records or selling low-risk types of foodstuff could be capsized by new paperwork and regulatory burdens that larger operations will be able to absorb as a cost of doing business. (Earlier here and here.)

Things could reach a showdown any day now. The food safety bill had stalled in the Senate under criticism from small farmer advocates, as the New York Times acknowledged the other day in an absurdly slanted editorial that somehow got printed as a news article. Now Harry Reid is talking about forcing the bill through before the midterms. Significantly – as advocates of the bill trumpet – large foodmakers and agribusiness concerns have signed off on the bill as acceptable to them. Well, yes, they would, wouldn’t they?

I was on TV the other week (Hearst news service) trying to make a few of these points. I borrowed my closing line from an excellent Steve Chapman column, which I was unable to credit on air, but can credit here.

Egg Farming and the Salmonella Recall

The New York Times invited me to contribute to its “Room for Debate” feature on the big egg recall and here is an excerpt from my reply:

…Advocates cite the current outbreak, at last report limited to two related Iowa egg farms, as reason to enact pending legislation that would intensify federal regulation of food-making in the name of safety. Large food and agribusiness companies have generally signed off on most of the new proposals as acceptable. Many smaller producers, on the other hand, suspect there will be less room for them, and for local variety generally, in this reassuring new world of business and government cooperation.

I go on to cite the CPSIA debacle, in which a safety enactment devastated small producers of children’s goods while entrenching some of the dominant industry players.

Read the full New York Times post here. Some other perspectives worth checking out: Ronald Bailey, Ira Stoll, Ann Althouse.

You Don’t Say

President Obama recently indicated that he would cut the fiscally irresponsible (yet minimally market distorting) direct payments that flow to farmers regardless of their production. An outcry from farming groups has, predictably, ensued.

Just as predictably: “A source in the administration says the proposal is being reconsidered because of the opposition it has received.