Here's the amici brief of the Cato Institute, the NFIB, the Center for Constitutional Jurisprudence, and the Reason Foundation in support of the petitioner/property owner in Horne v. United States Dep't of Agriculture, No. 12-122 (cert. granted. Nov. 20, 2012).
That's the case in which the Supreme Court is considering whether a property owner who is being targeted by the federal government for a fine may assert a takings defense, or whether the sole approach is to pay the fine and then seek compensation later in the Court of Federal Claims. We know that sounds stupid, but that's exactly what the Ninth Circuit held a property owner must do. See Horne v. United States Dep't of Agriculture, 673 F.3d 1071 (9th Cir. 2011). And that's the USDA's argument, now too.
As the brief argues:
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 decided 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.
Br. at 1.
In our view, this case will serve as a bellwether -- a test to see whether the Court has any seriousness remaining regarding the Takings Clause, or whether the Justices have simply reached the end of their intellectual ropes and have given up any pretense of even trying. The argument that a party cannot claim the impositon of a fine is unconstitutional because it would be a taking, and that the only way for a court to consider this argument is for the party to pay the fine and then file a lawsuit to recover the same amount of money in an after-the-fact compensation lawsuit in a distant court, is just that silly. Didn't Lord Coke tell us that the law does not require us to do useless things? It shouldn't even be a close call, but it probably will be.
You never hear these type of arguments in First Amendment law, where the presumption is just the the opposite: you can run to federal court and get a preempmtive order if you are merely "chilled," because the courts frown on prior restraints on your speech rights. Do you ever hear an argument that the remedy for a violation of search and seizure rights isn't to quash the evidence illegally obtained, because the person whose Fourth Amendment rights are violated can always sue later under 42 U.S.C. § 1983? Nope. Only in takings claims do we see "ripeness" arguments, all supposedly because the Fifth Amendment does not prohibit "takings," but only "takings without just compensation," even when no compensation has been offered by the government. You'd think that the lack of at least an offer of compensation contemporaneous with the taking would be enough to say that the Takings Clause is violated. Because, you know, the power of eminent domain is only valid when exercised with the obligation to pay compensation. But oh no, there's only a problem if the government deprives the property owner of a subsequent cause of action to recover the compensation that is being wrongly denied.
Are property rights "poor relations" or aren't they?
Finally, be sure to check out footnote 2 on page 11 of the amici brief, a cartoon illustration of a Rube Goldberg device. Well played, sirs, well played.