Food Security « Disasters, Property, and Politics

Hey y’all, how’s life?

I know, I know… DPP has not been particularly interesting lately. In fact, we’ve been down right uncommunicative. My apologies… There’s a good reason for that… Actually a bunch of them, all tied to my day job. Let’s just say it’s been a busy semester and blogging sort of fell by the way-side as I tried to get my fingers around some other work. That said…

I read something this morning that I knew my readers would find interesting. Here’s the link to a blogpost at the Law and Society blog (with another link to a PDF to the full article discussed in the post) by a psotdoctoral fellow at Harvard named Mekonnen Firew Ayano. Her work forcuses on land tenure issues in Ethiopia. Yes, I know, most of the readers of this blog want to hear about property politics and disasters in the US. But let me make a pitch to you about why you might be interested in Dr. Ayano’s work.

Sometimes people ask me why I’m so interested in property. I have been since my early twenties. Now that I’m approaching 50, I can say that it’s a life-long preoccupation. It began when I started thinking about what single moms need to support their families, and how important a job with a career ladder was for a good friend of mine in college (a single mom, working on her degree in business in order to support herself and her son in the future). It made sense to me that access to ownership and the ability to build wealth was pretty obviously connected. I already understood that there were a lot of different kinds of property one could own. She was focused on eventually buying a house, but I remember a fairly clear discussion about retirement and investments.

Later, I learned that women who could own land in underdeveloped places (not just outside the US, mind you, but underdeveloped parts of the US) were empowered to some degree, and as a result they suffered less domestic abuse, could participate in the politics and decision making at the community level, and were much more able to ensure that their children were fed. This was especially true compared to women who did not possess some kind of property (or, in some places in the world, had no right to property of any kind). If you go to DPP’s archive and look, you’ll see this was something I blogged about years and years ago at least once, maybe twice. It’s something I’ve been giving some thought to as I have helped with issues in southeast Missouri, and as a result of some of my research there concerning a landowner from the 1930’s named Price Hess. That’s Mrs. Price Hess, who was born with the name “Emma”. But that’s another story for another day.

Even if this all makes sense to you on some level, you may be telling me that you don’t have time to read about Ethiopia. However, I know you’re reading this because you care about the issues we write about here at DPP, and you may even be involved in the politics of property, or property and disaster recovery. Well, here’s the thing: empirical evidence of this relationship is almost always useful in political contexts. It continues to be clearest in comparative perspectives in scholarship, though. For this reason, I’ve kept up with my training in comparative law and politics, at least insofar as property issues matter despite the fact that I have never written about contexts out of the US (with the exception of a brief foray in a dissertation chapter about property in the EU). Evidence that there is a clear link between the ability of individuals in hard political, social, and economic situations to find their way to a better place is clear in much of this work. Conversely, when governments remove property rights from women or minorities, you can also see the pattern of impoverishment, disempowerment, and manipulation by more powerful people that frequently follows. Scholars can’t write the entire story in one article — you have to read many articles and put the pieces together. I happen to think this is an article worth reading if you are interested in these issues. It’s just one piece of a bigger story, but it’s an important piece.

Also, dear readers, I promise to try to make an appearance in your email box a little more often as 2018 winds down and we turn the page to 2019. In the meantime, I hope all of my US readers have a very good Thanksgiving. I am thankful for all of you!

The Supreme Court has agreed to hear a very interesting property rights case, Horne v. USDA, that concerns the taking of raisins.

Horne’s history begins all the way back in 1937, when Congress passed the Agricultural Marketing Agreement Act of 1937 (AMAA), which allows the Secretary of Agriculture to impose production quotas on products in an effort to protect farmers from fluctuations in the market. The production quotas are imposed on “handlers” – those who process and package the product for distribution to consumers. Such an order, “The Raisin Marketing Order of 1949”, required that a percentage of raisins must be turned over to the government every year to maintain a reserve tonnage. Yes, we have a strategic raisin reserve.

Fast forward a few decades, and we find Marvin and Laura Horne, who are raisin farmers in California. The Hornes were thus subject to the 1949 raisin marketing order. Under this order, a board of bureaucrats, the Raisin Administrative Committee, decides what the “proper yield” of raisins should be in order to meet a centrally agreed-upon price. The board estimates the size the annual crop, and then orders all raisin farmers to turn over a portion of their crop to the raisin handlers mentioned above. The handlers (also known as packers) then place the raisins reserve pool. These reserve raisins cannot be sold in the U.S., but the handlers can later sell them overseas at discounted prices, or into school lunch prices (there also a deeply discounted rate).

Under the AMAA, the farmers are supposed to receive a percentage of the money made from the sale of the reserve pool raisins. Profit margins dwindled over the years, however, and with them, the return to the farmers. 2003 marked a turning point in this story, when the farmers were forced to turn over forty-seven (47!) percent of their crop, and received a total of zero dollars in return.

The Hornes feared that their business couldn’t survive, giving up 47 percent of their produce for no money, so they reorganized their business. They began packing and selling their own raisins, hoping that doing so would allow them to circumvent the marketing order. [Many other raisin farmers followed the Hornes’ lead, and began to pack and sell their own raisins.] The government did not approve of this move. The USDA levied huge fines against the Hornes, and also charged them for the raisins that they had not surrendered. You can see a short (about 7 minute) video wherein the Hornes and their lawyer talk about the case, here.

The Hornes sued in federal court, alleging that the marketing order amounted to an unconstitutional taking in violation of the Fifth Amendment. The District Court in which the case was first heard, and then the Ninth Circuit on appeal both held that this was a matter of unpaid fines, and not a takings. The Supreme Court disagreed, holding (9-0) in Horne v. Department of Agriculture 569 U.S. ___ (2012) that there was a potential takings here, and the case could be adjudicated as such. In other words, the Takings Clause can be a valid defense in actions regarding government mandated transfers of funds. [To be very clear, the earlier case (decided in 2012) and the current case (to be heard on April 22, 2015) have the same name.]

By agreeing to hear the case again, this time on the merits (the substance of the dispute), the Supreme Court is agreeing to answer three important questions: first, does the recognized “categorical duty” under the Fifth Amendment to pay just compensation when “physically takes possession of an interest in property” apply to personal property, or only to real property? Second, can government avoid paying just compensation by “allowing” the owner to reserve a portion of the property’s value? And third, does a government mandate to hand over a specific property as a “condition” to engage in commerce amount to a per se taking?

These are very important questions – thus this is a very important case – for those of us interested in the politics and law of property. And the Court’s answer to these questions will reverberate far beyond the raisin farms of California, whichever way they decide. Oral arguments are scheduled for April 22, 2015. Tune in, as we’ll have commentary on the arguments as quickly as possible thereafter.

If you’re interested in hearing the arguments for yourself, you can find them here. If you’d like to read more about this case, SCOTUSBlog has some good coverage, and Oyez has a good summary of the 2012 decision.