Opinion analysis: Is the New Deal in new trouble?

Analysis

One of the more durable legacies of Franklin Roosevelt’s New Deal in the 1930s was the idea that the farm economy can be bolstered by paying growers to keep some of their crop off the market, or paying them not to grow some of it at all. One of those programs ran into a high constitutional fence on Monday, raising at least some question about how long the idea can continue unchanged.

Depending on how farmers, and their lawyers, interpret the new decision in Horne v. U.S. Department of Agriculture, it could pose a threat to a wide range of government subsidy programs that seek to keep crop prices up by keeping supply down. That formula has been used since 1949 for the California raisin industry under a 1937 farm law, but its future is in doubt. What happens to other farm regulatory programs will have to await further development.

The feature of the raisin program that a Court majority condemned constitutionally is that growers are required to turn over full control of a part of their annual crop to the government, to be held off the market temporarily to push up prices for the annual crop as a whole. Whether the growers get anything back, after the government finds ways to dispose of those put in the set-aside bin, was the feature that led the majority to say it is a form of government seizure for which the growers must get fair compensation under the Fifth Amendment.

Although eight of the nine Justices agreed that the raisin program does involve a form of “taking” private property for public use, three of those eight split off from the others on the question of whether the amount the growers were now due for the takeover of their raisins could be settled now.

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