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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–275

															_________________

															MARVIN D. HORNE, et al., PETITIONERS v. DEPARTMENT OF AGRICULTURE

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															[June 22, 2015]

															Chief Justice Roberts delivered the opinion of
the Court.

															Under the United States Department of
Agriculture’s California Raisin Marketing Order, a percentage of a
grower’s crop must be physically set aside in certain years for the
account of the Government, free of charge. The Government then
sells, allocates, or otherwise disposes of the raisins in ways it
determines are best suited to maintaining an orderly market. The
question is whether the Takings Clause of the Fifth Amendment bars
the Government from imposing such a demand on the growers without
just compensation.

															I

															The Agricultural Marketing Agreement Act of
1937 authorizes the Secretary of Agriculture to promulgate
“marketing orders” to help maintain stable markets for particular
agricultural products. The marketing order for raisins requires
growers in certain years to give a percentage of their crop to the
Government, free of charge. The required allocation is determined
by the Raisin Administrative Committee, a Government entity
composed largely of growers and others in the raisin business
appointed by the Secretary of Agriculture. In 2002–2003, this
Committee ordered raisin growers to turn over 47 percent of their
crop. In 2003–2004, 30 percent.

															Growers generally ship their raisins to a raisin
“handler,” who physically separates the raisins due the Government
(called “reserve raisins”), pays the growers only for the remainder
(“free-tonnage raisins”), and packs and sells the free-tonnage
raisins. The Raisin Committee acquires title to the reserve raisins
that have been set aside, and decides how to dispose of them in its
discretion. It sells them in noncompetitive markets, for example to
exporters, federal agencies, or foreign governments; donates them
to charitable causes; releases them to growers who agree to reduce
their raisin production; or disposes of them by “any other means”
consistent with the purposes of the raisin program. 7 CFR
§989.67(b)(5) (2015). Proceeds from Committee sales are principally
used to subsidize handlers who sell raisins for export (not
including the Hornes, who are not raisin exporters). Raisin growers
retain an interest in any net proceeds from sales the Raisin
Committee makes, after deductions for the export subsidies and the
Committee’s administrative expenses. In the years at issue in this
case, those proceeds were less than the cost of producing the crop
one year, and nothing at all the next.

															The Hornes—Marvin Horne, Laura Horne, and their
family—are both raisin growers and handlers. They “handled” not
only their own raisins but also those produced by other growers,
paying those growers in full for all of their raisins, not just the
free-tonnage portion. In 2002, the Hornes refused to set aside any
raisins for the Government, believing they were not legally bound
to do so. The Government sent trucks to the Hornes’ facility at
eight o’clock one morning to pick up the raisins, but the Hornes
refused entry. App. 31; cf. post, at 11 (Sotomayor, J.,
dissenting). The Government then assessed against the Hornes a fine
equal to the market value of the missing raisins—some $480,000—as
well as an additional civil penalty of just over $200,000 for
disobeying the order to turn them over.

															When the Government sought to collect the fine,
the Hornes turned to the courts, arguing that the reserve
requirement was an unconstitutional taking of their property under
the Fifth Amendment. Their case eventually made it to this Court
when the Government argued that the lower courts had no
jurisdiction to consider the Hornes’ constitutional defense to the
fine. Horne v. Department of Agriculture , 569
U. S. ___ (2013) ( Horne I ). We rejected the
Government’s argument and sent the case back to the Court of
Appeals so it could address the Hornes’ contention on the merits. Id. , at ___ (slip op.,at 15).

															On remand, the Ninth Circuit agreed with the
Hornes that the validity of the fine rose or fell with the
constitutionality of the reserve requirement. 750 F. 3d 1128,
1137 (2014). The court then considered whether that requirement was
a physical appropriation of property, giving rise to a per se taking, or a restriction on a raisin grower’s
use of his property, properly analyzed under the more flexible and
forgiving standard for a regulatory taking. The court rejected the
Hornes’ argument that the reserve requirement was a per se taking, reasoning that “the Takings Clause
affords less protection to personal than to real property,” and
concluding that the Hornes “are not completely divested of their
property rights,” because growers retain an interest in the
proceeds from any sale of reserve raisins by the Raisin Committee. Id. , at 1139.

															The court instead viewed the reserve requirement
as a use restriction, similar to a government condition on the
grant of a land use permit. See Dolan v. City of
Tigard , 512 U. S. 374 (1994) ; Nollan v. California Coastal Comm’n , 483 U. S. 825 (1987) . As in
such permit cases, the Court of Appeals explained, the Government
here imposed a condition (the reserve requirement) in exchange for
a Government benefit (an orderly raisin market). And just as a
landowner was free to avoid the government condition by forgoing a
permit, so too the Hornes could avoid the reserve requirement by
“planting different crops.” 750 F. 3d, at 1143. Under that
analysis, the court found that the reserve requirement was a
proportional response to the Government’s interest in ensuring an
orderly raisin market, and not a taking under the Fifth
Amendment.

															We granted certiorari. 574 U. S. ___
(2015).

															II

															The petition for certiorari poses three
questions, which we answer in turn.

															A

															The first question presented asks “Whether the
government’s ‘categorical duty’ under the Fifth Amendment to pay
just compensation when it ‘physically takes possession of an
interest in property,’ Arkansas Game & Fish Comm’n v.
United States , 133 S. Ct. 511, 518 (2012), applies only to
real property and not to personal property.” The answer is no.

															1

															There is no dispute that the “classic taking
[is one] in which the government directly appropriates private
property for its own use.” Tahoe-Sierra Preservation
Council , Inc. v. Tahoe Regional Planning Agency ,
535 U. S. 302, 324 (2002) (brackets and internal quotation
marks omitted). Nor is there any dispute that, in the case of real
property, such an appropriation is a per se taking that
requires just compensation. See Loretto v. Teleprompter
Manhattan CATV Corp. , 458 U. S. 419 –435 (1982).

															Nothing in the text or history of the Takings
Clause, or our precedents, suggests that the rule is any different
when it comes to appropriation of personal property. The Government
has a categorical duty to pay just compensation when it takes your
car, just as when it takes your home.

															The Takings Clause provides: “[N]or shall
private property be taken for public use, without just
compensation.” U. S. Const., Amdt. 5. It protects “private
property” without any distinction between different types. The
principle reflected in the Clause goes back at least 800 years to
Magna Carta, which specifically protected agricultural crops from
uncompensated takings. Clause 28 of that charter forbade any
“constable or other bailiff ” from taking “corn or other
provisions from any one without immedi-ately tendering money
therefor, unless he can have postponement thereof by permission of
the seller.” Cl. 28 (1215), in W. McKechnie, Magna Carta, A
Commentary on the Great Charter of King John 329 (2d ed. 1914).

															The colonists brought the principles of Magna
Carta with them to the New World, including that charter’s
protection against uncompensated takings of personal property. In
1641, for example, Massachusetts adopted its Body of Liberties,
prohibiting “mans Cattel or goods of what kinde soever” from being
“pressed or taken for any publique use or service, unlesse it be by
warrant grounded upon some act of the generall Court, nor without
such reasonable prices and hire as the ordinarie rates of the
Countrie do afford.” Massachusetts Body of Liberties ¶8, in R.
Perry, Sources of Our Liberties 149 (1978). Virginia allowed the
seizure of surplus “live stock, or beef, pork, or bacon” for the
military, but only upon “paying or tendering to the owner the price
so estimated by the appraisers.” 1777 Va. Acts ch. XII. And South
Carolina authorized the seizure of “necessaries” for public use,
but provided that “said articles so seized shall be paid for
agreeable to the prices such and the like articles sold for on the
ninth day of October last.” 1779 S. C. Acts §4.

															Given that background, it is not surprising that
early Americans bridled at appropriations of their personal
property during the Revolutionary War, at the hands of both sides.
John Jay, for example, complained to the New York Legislature about
military impressment by the Continental Army of “Horses, Teems, and
Carriages,” and voiced his fear that such action by the “little
Officers” of the Quartermasters Department might extend to
“Blankets, Shoes, and many other articles.” A Hint to the
Legislature of the State of New York (1778), in John Jay, The
Making of a Revolutionary 461–463 (R. Morris ed. 1975) (emphasis
deleted). The legislature took the “hint,” passing a law that,
among other things, provided for compensation for the impressment
of horses and carriages. 1778 N. Y. Laws ch. 29. According to
the author of the first treatise on the Constitution, St. George
Tucker, the Takings Clause was “probably” adopted in response to
“the arbitrary and oppressive mode of obtaining supplies for the
army, and other public uses, by impressment, as was too frequently
practised during the revolutionary war, without any compensation
whatever.” 1 Blackstone’s Commentaries, Editor’s App. 305–306
(1803).

															Nothing in this history suggests that personal
property was any less protected against physical appropriation than
real property. As this Court summed up in James v. Campbell , 104 U. S. 356, 358 (1882) , a case concerning
the alleged appropriation of a patent by the Government:

															“[A patent] confers upon the patentee an
exclusive property in the patented invention which cannot be
appropriated or used by the government itself, without just
compensation, any more than it can appropriate or use without
compensation land which has been patented to a private
purchaser.”

															Prior to this Court’s decision in Pennsylvania Coal Co. v. Mahon , 260 U. S. 393
(1922) , the Takings Clause was understood to provide protection
only against a direct appropriation of property—personal or real. Pennsylvania Coal expanded the protection of the Takings
Clause, holding that compensation was also required for a
“regulatory taking”—a restriction on the use of property that went
“too far.” Id. , at 415. And in Penn Central Transp.
Co. v. New York City , 438 U. S. 104, 124 (1978) ,
the Court clarified that the test for how far was “too far”
required an “ad hoc” factual inquiry. That inquiry required
considering factors such as the economic impact of the regulation,
its interference with reasonable investment-backed expectations,
and the character of the government action.

															Four years after Penn Central , however,
the Court reaffirmed the rule that a physical appropriation of property gave rise to a per se taking, without
regard to other factors. In Loretto , the Court held that
requiring an owner of an apartment building to allow installation
of a cable box on her rooftop was a physical taking of real
property, for which compensation was required. That was true
without regard to the claimed public benefit or the economic impact
on the owner. The Court explained that such protection was
justified not only by history, but also because “[s]uch an
appropriation is perhaps the most serious form of invasion of an
owner’s property interests,” depriving the owner of the “the rights
to possess, use and dispose of” the property. 458 U. S., at
435 (internal quotation marks omitted). That reasoning—both with
respect to history and logic—is equally applicable to a physical
appropriation of personal property.

															The Ninth Circuit based its distinction between
real and personal property on this Court’s discussion in Lucas v. South Carolina Coastal Council , 505
U. S. 1003 (1992) , a case involving extensive limitations on
the use of shorefront property. 750 F. 3d, at 1139–1141. Lucas recognized that while an owner of personal property
“ought to be aware of the possibility that new regulation might
even render his property economically worthless,” such an “implied
limitation” was not reasonable in the case of land. 505 U. S.,
at 1027–1028. Lucas , however, was about regulatory
takings, not direct appropriations. Whatever Lucas had to
say about reasonable expectations with regard to regulations,
people still do not expect their property, real or personal, to be
actually occupied or taken away. Our cases have stressed the
“longstanding distinction” between government acquisitions of
property and regulations. Tahoe-Sierra Preservation Council ,
535 U. S., at 323. The different treatment of real and
personal property in a regulatory case suggested by Lucas did not alter the established rule of treating direct
appropriations of real and personal property alike. See 535
U. S., at 323 . (It is “inappropriate to treat cases
involving physical takings as controlling precedents for the
evaluation of a claim that there has been a ‘regulatory taking,’
and vice versa” (footnote omitted)).

															2

															The reserve requirement imposed by the Raisin
Committee is a clear physical taking. Actual raisins are
transferred from the growers to the Government. Title to the
raisins passes to the Raisin Committee. App. to Pet. for Cert.
179a; Tr. of Oral Arg. 31. The Committee’s raisins must be
physically segregated from free-tonnage raisins. 7 CFR
§989.66(b)(2). Reserve raisins are sometimes left on the premises
of handlers, but they are held “for the account” of the Government.
§989.66(a). The Committee disposes of what become its raisins as it
wishes, to promote the purposes of the raisin marketing order.

															Raisin growers subject to the reserve
requirement thus lose the entire “bundle” of property rights in the
appropriated raisins—“the rights to possess, use and dispose
of ” them, Loretto , 458 U. S., at 435 (internal
quotation marks omitted)—with the exception of the speculative hope
that some residual proceeds may be left when the Government is done
with the raisins and has deducted the expenses of implementing all
aspects of the marketing order. The Government’s “actual taking of
possession and control” of the reserve raisins gives rise to a
taking as clearly “as if the Government held full title and
ownership,” id. , at 431 (internal quotation marks omitted),
as it essentially does. The Government’s formal demand that the
Hornes turn over a percentage of their raisin crop without charge,
for the Government’s control and use, is “of such a unique
character that it is a taking without regard to other factors that
a court might ordinarily examine.” Id. , at 432.

															The Government thinks it “strange” and the
dissent “baffling” that the Hornes object to the reserve
requirement, when they nonetheless concede that “the government may
prohibit the sale of raisins without effecting a per se
taking.” Brief for Respondent 35; post, at 12
(Sotomayor, J., dissenting). But that distinction flows
naturally from the settled difference in our takings jurisprudence
between appropriation and regulation. A physical taking of raisins
and a regulatory limit on production may have the same economic
impact on a grower. The Constitution, however, is concerned with
means as well as ends. The Government has broad powers, but the
means it uses to achieve its ends must be “consist[ent] with the
letter and spirit of the constitution.” McCulloch v. Maryland , 4 Wheat. 316, 421 (1819). As Justice Holmes noted,
“a strong public desire to improve the public condition is not
enough to warrant achieving the desire by a shorter cut than the
constitutional way.” Pennsylvania Coal , 260 U. S., at
416.

															B

															The second question presented asks “Whether
the government may avoid the categorical duty to pay just
compensation for a physical taking of property by reserving to the
property owner a contingent interest in a portion of the value of
the property, set at the government’s discretion.” The answer is
no.

															The Government and dissent argue that raisins
are fungible goods whose only value is in the revenue from their
sale. According to the Government, the raisin marketing order
leaves that interest with the raisin growers: After selling reserve
raisins and deducting expenses and subsidies for exporters, the
Raisin Committee returns any net proceeds to the growers. 7 CFR
§§989.67(d), 989.82, 989.53(a), 989.66(h). The Government contends
that because growers are entitled to these net proceeds, they
retain the most important property interest in the reserve raisins,
so there is no taking in the first place. The dissent agrees,
arguing that this possible future revenue means there has been no
taking under Loretto . See post, at 2–6.

															But when there has been a physical
appropriation, “we do not ask . . . whether it deprives
the owner of all economically valuable use” of the item taken. Tahoe-Sierra Preservation Council , 535 U. S., at 323;
see id. , at 322 (“When the government physically takes
possession of an interest in property for some public purpose, it
has a categorical duty to compensate the former owner, regardless
of whether the interest that is taken constitutes an entire parcel
or merely a part thereof.” (citation omitted)). For example, in Loretto , we held that the installation of a cable box on a
small corner of Loretto’s rooftop was a per se taking,
even though she could of course still sell and economically benefit
from the property. 458 U. S., at 430, 436. The fact that the
growers retain a contingent interest of indeterminate value does
not mean there has been no physical taking, particularly since the
value of the interest depends on the discretion of the taker, and
may be worthless, as it was for one of the two years at issue
here.

															The dissent points to Andrus v. Allard , 444 U. S. 51 (1979) , noting that the Court
found no taking in that case, even though the owners’ artifacts
could not be sold at all. Post , at 6. The dissent suggests
that the Hornes should be happy, because they might at least get something from what had been their raisins. But Allard is a very different case. As the dissent recognizes,
the owners in that case retained the rights to possess, donate, and
devise their property. In finding no taking, the Court emphasized
that the Government did not “compel the surrender of the artifacts,
and there [was] no physical invasion or restraint upon them.” 444
U. S. , at 65–66. Here of course the raisin program
requires physical surrender of the raisins and transfer of title,
and the growers lose any right to control their disposition.

															The Government and dissent again confuse our
inquiry concerning per se takings with our analysis for
regulatory takings. A regulatory restriction on use that does not
entirely deprive an owner of property rights may not be a taking
under Penn Central . That is why, in PruneYard Shopping
Center v. Robins , 447 U. S. 74 (1980) , we held
that a law limiting a property owner’s right to exclude certain
speakers from an already publicly accessible shopping center did
not take the owner’s property. The owner retained the value of the
use of the property as a shopping center largely unimpaired, so the
regulation did not go “too far.” Id. , at 83 (quoting Pennsylvania Coal Co. , 260 U. S., at 415). But once
there is a taking, as in the case of a physical appropriation, any
payment from the Government in connection with that action goes, at
most, to the question of just compensation. See Suitum v. Tahoe Regional Planning Agency , 520 U. S. 725 –748
(1997) (Scalia, J., concurring in part and concurring in judgment).
That is not an issue here: The Hornes did not receive any net
proceeds from Raisin Committee sales for the years at issue,
because they had not set aside any reserve raisins in those years
(and, in any event, there were no net proceeds in one of them).

															C

															The third question presented asks “Whether a
governmental mandate to relinquish specific, identifiable prop-erty
as a ‘condition’ on permission to engage in commerce effects a
per se taking.” The answer, at least in this case, is yes.

															The Government contends that the reserve
requirement is not a taking because raisin growers voluntarily
choose to participate in the raisin market. According to the
Government, if raisin growers don’t like it, they can “plant
different crops,” or “sell their raisin-variety grapes as table
grapes or for use in juice or wine.” Brief for Respondent 32
(brackets and internal quotation marks omitted).

															“Let them sell wine” is probably not much more
comforting to the raisin growers than similar retorts have been to
others throughout history. In any event, the Government is wrong as
a matter of law. In Loretto , we rejected the argument that
the New York law was not a taking because a landlord could avoid
the requirement by ceasing to be a landlord. We held instead that
“a landlord’s ability to rent his property may not be conditioned
on his forfeiting the right to compensation for a physical
occupation.” 458 U. S., at 439, n. 17. As the Court
explained, the contrary argument “proves too much”:

															“For example, it would allow the
government to require a landlord to devote a substantial portion of
his building to vending and washing machines, with all profits to
be retained by the owners of these services and with no
compensation for the deprivation of space. It would even allow the
government to requisition a certain number of apartments as
permanent government offices.” Ibid. As the Court concluded, property rights “cannot
be so easily manipulated.” Ibid. The Government and dissent rely heavily on Ruckelshaus v. Monsanto Co. , 467 U. S. 986
(1984) . There we held that the Environmental Protection Agency
could require companies manufacturing pesticides, fungicides, and
rodenticides to disclose health, safety, and environmental
information about their products as a condition to receiving a
permit to sell those products. While such information included
trade secrets in which pesticide manufacturers had a property
interest, those manufacturers were not subjected to a taking
because they received a “valuable Government benefit” in exchange—a
license to sell dangerous chemicals. Id., at 1007; see Nollan , 483 U. S., at 834, n. 2 (discussing Monsanto ).

															The taking here cannot reasonably be
characterized as part of a similar voluntary exchange. In one of
the years at issue here, the Government insisted that the Hornes
turn over 47 percent of their raisin crop, in exchange for the
“benefit” of being allowed to sell the remaining 53 percent. The
next year, the toll was 30 percent. We have already rejected the
idea that Monsanto may be extended by regarding basic and
familiar uses of property as a “Government benefit” on the same
order as a permit to sell hazardous chemicals. See Nollan ,
483 U. S., at 834, n. 2 (distinguishing Monsanto on the
ground that “the right to build on one’s own property—even though
its exercise can be subjected to legitimate permitting
requirements—cannot remotely be described as a ‘governmental
benefit’ ”). Selling produce in interstate commerce, although
certainly subject to reasonable government regulation, is similarly
not a special governmental benefit that the Government may hold
hostage, to be ransomed by the waiver of constitutional protection.
Raisins are not dangerous pesticides; they are a healthy snack. A
case about conditioning the sale of hazardous substances on
disclosure of health, safety, and environmental information related
to those hazards is hardly on point. Leonard & Leonard v. Earle ,
279 U. S. 392 (1929) , is also readily distinguishable. In
that case, the Court upheld a Maryland requirement that oyster
packers remit ten percent of the marketable detached oyster shells
or their monetary equivalent to the State for the privilege of
harvesting the oysters. But the packers did “not deny the power of
the State to declare their business a privilege,” and the power of
the State to impose a “privilege tax” was “not questioned by
counsel.” Id. , at 396. The oysters, unlike raisins, were
“feræ naturæ” that belonged to the State under state law, and “[n]o
individual ha[d] any property rights in them other than such as the
state may permit him to acquire.” Leonard v. Earle ,
155 Md. 252, 258, 141 A. 714, 716 (1928). The oyster packers did
not simply seek to sell their property; they sought to appropriate
the State’s. Indeed, the Maryland Court of Appeals saw the issue as
a question of “a reasonable and fair compensation” from the
packers to “the state, as owner of the oysters.” Id. ,
at 259, 141 A., at 717 (internal quotation marks omitted).

															Raisins are not like oysters: they are private
property—the fruit of the growers’ labor—not “public things subject
to the absolute control of the state,” id. , at 258, 141 A.,
at 716. Any physical taking of them for public use must be
accompanied by just compensation.

															III

															The Government correctly points out that a
taking does not violate the Fifth Amendment unless there is no just
compensation, and argues that the Hornes are free to seek
compensation for any taking by bringing a damages action under the
Tucker Act in the Court of Federal Claims. See 28
U. S. C. §1491(a)(1); Monsanto , 467 U. S., at
1020. But we held in Horne I that the Hornes may, in their
capacity as handlers, raise a takings-based defense to the fine
levied against them. We specifically rejected the contention that
the Hornes were required to pay the fine and then seek compensation
under the Tucker Act. See 569 U. S., at ___ (slip op., at
13–14) (“We . . . conclude that the [Agricultural
Marketing Agreement Act] withdraws Tucker Act jurisdiction over
[the Hornes’] takings claim. [The Hornes] (as handlers) have no
alternative remedy, and their takings claim was not ‘premature’
when presented to the Ninth Circuit.”).

															As noted, the Hornes are both growers and
handlers. Their situation is unusual in that, as handlers, they
have the full economic interest in the raisins the Government
alleges should have been set aside for its account. They own the
raisins they grew and are handling for themselves, and they own the
raisins they handle for other growers, having paid those growers
for all their raisins (not just the free-tonnage amount, as is true
with respect to most handlers). See supra , at 2–3; Tr. of
Oral Arg. 3–4. The penalty assessed against them as handlers
included the dollar equivalent of the raisins they refused to set
aside—their raisins. 750 F. 3d, at 1135, n. 6; Brief for
Petitioners 15. They may challenge the imposition of that fine, and
do not have to pay it first and then resort to the Court of Federal
Claims.

															Finally, the Government briefly argues that if
we conclude that the reserve requirement effects a taking, we
should remand for the Court of Appeals to calculate “what
compensation would have been due if petitioners had complied with
the reserve requirement.” Brief for Respondent 55. The Government
contends that the calculation must consider what the value of the
reserve raisins would have been without the price support program,
as well as “other benefits . . . from the regulatory
program, such as higher consumer demand for raisins spurred by
enforcement of quality standards and promotional activities.” Id. , at 55–56. Indeed, according to the Government, the
Hornes would “likely” have a net gain under this theory. Id. , at 56.

															The best defense may be a good offense, but the
Government cites no support for its hypothetical-based approach, or
its notion that general regulatory activity such as enforcement of
quality standards can constitute just compensation for a specific
physical taking. Instead, our cases have set forth a clear and
administrable rule for just compensation: “The Court has repeatedly
held that just compensation normally is to be measured by ‘the
market value of the property at the time of the taking.’ ” United States v. 50 Acres of Land , 469 U. S. 24, 29
(1984) (quoting Olson v. United States , 292 U. S.
246, 255 (1934) ).

															Justice Breyer is concerned that applying this
rule in this case will affect provisions concerning whether a
condemning authority may deduct special benefits—such as new access
to a waterway or highway, or filling in of swampland—from the
amount of compensation it seeks to pay a landowner suffering a
partial taking. Post , at 5 (opinion concurring in part and
dissenting in part); see Bauman v. Ross , 167 U. S.
548 (1897) (laying out of streets and subdivisions in the District
of Columbia). He need not be. Cases of that sort can raise
complicated questions involving the exercise of the eminent domain
power, but they do not create a generally applicable exception to
the usual compensation rule, based on asserted regulatory benefits
of the sort at issue here. Nothing in the cases Justice Breyer
labels “ Bauman and its progeny,” post, at 5, suggests
otherwise, which may be why the Solicitor General does not cite
them.[ 1 ]

															In any event, this litigation presents no
occasion to consider the broader issues discussed by Justice
Breyer. The Government has already calculated the amount of just
compensation in this case, when it fined the Hornes the fair market
value of the raisins: $483,843.53. 750 F. 3d, at 1135, n. 6.
The Government cannot now disavow that valuation, see Reply Brief
21–23, and does not suggest that the marketing order affords the
Hornes compensation in that amount. There is accordingly no need
for a remand; the Hornes should simply be relieved of the
obligation to pay the fine and associated civil penalty they were
assessed when they resisted the Government’s effort totake their
raisins. This case, in litigation for more than a decade, has gone
on long enough.

															The judgment of the United States Court of
Appeals for the Ninth Circuit is reversed.

															It is so ordered. Notes 1 For example, in United
States v. Miller , 317 U. S. 369, 377 (1943) , the
Court—in calculating the fair market value of land—discounted an
increase in value resulting from speculation “as to what the
Govern-ment would be compelled to pay as compensation” after the
land was earmarked for acquisition. In United States v. Sponenbarger , 308 U. S. 256, 265 (1939) , the Court
determined there was no taking in the first place, when the
complaint was merely that a Government flood control plan provided
insufficient protection for the claimant’s land. McCoy v. Union Elevated R. Co ., 247 U. S. 354, 363 (1918) , similarly
involved a claim “for damages to property not actually taken.” So
too Reichelderfer v. Quinn , 287 U. S. 315 (1932)
. There the Court held that claimants who had paid a special
assessment when Rock Creek Park in Washington, D. C., was
created—because the Park increased the value of their property—did
not thereby have the right to prevent Congress from altering use of
part of the Park for a fire station 38 years later. In Dohany v. Rogers , 281 U. S. 362 (1930) , the law
authorizing the taking did “not permit the offset of benefits for a
railroad,” and therefore was “not subject to the objection that it
fails to provide adequate compensation . . . and is
therefore unconstitutional.” Id., at 367, and n. 1
(quoting Fitzsimons & Galvin, Inc. v. Rogers , 243
Mich. 649, 665, 220 N. W. 881, 886 (1928)). And in Norwood v. Baker , 172 U. S. 269 (1898) , the
issue was whether an assessment to pay for improvements exceeded a
village’s taxing power. Perhaps farthest afield are the Regional
Rail Reorganization Act Cases , 419 U. S. 102, 153 (1974) ,
which involved valuation questions arising from the Government
reorganization of northeast and midwest railroads. The Court in
that case held that the legislation at issue was not “merely an
eminent domain statute” but instead was enacted “pursuant to the
bankruptcy power.” Id., at 151, 153. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–275

															_________________

															MARVIN D. HORNE, et al., PETITIONERS v. DEPARTMENT OF AGRICULTURE

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															[June 22, 2015]

															Justice Thomas, concurring.

															I join the Court’s opinion in full. I write
separatelyto offer an additional observation concerning Justice
Breyer’s argument that we should remand the case. The Takings
Clause prohibits the government from taking private property except
“for public use,” even when it offers “just compensation.”
U. S. Const., Amdt. 5. That requirement, as originally
understood, imposes a meaningful constraint on the power of the
state—“the government may take property only if it actually uses or
gives the public a legal right to use the property.” Kelo v. New London , 545 U. S. 469, 521 (2005) (Thomas, J.,
dissenting). It is far from clear that the Raisin Administrative
Committee’s conduct meets that standard. It takes the raisins of
citizens and, among other things, gives them away or sells them to
exporters, foreign importers, and foreign governments. 7 CFR
§989.67(b) (2015). To the extent that the Committee is not taking
the raisins “for public use,” having the Court of Appeals calculate
“just compensation” in this case would be a fruitless exercise. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–275

															_________________

															MARVIN D. HORNE, et al., PETITIONERS v. DEPARTMENT OF AGRICULTURE

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															[June 22, 2015]

															Justice Breyer, with whom Justice Ginsburg and
Justice Kagan join, concurring in part and dissenting in part.

															I agree with Parts I and II of the Court’s
opinion. However, I cannot agree with the Court’s rejection, in
Part III, of the Government’s final argument. The Government
contends that we should remand the case for a determination of
whether any compensation would have been due if the Hornes had
complied with the California Raisin Marketing Order’s reserve
requirement. In my view, a remand for such a determination is
necessary.

															The question of just compensation was not
presented in the Hornes’ petition for certiorari. It was barely
touched on in the briefs. And the courts below did not decide it.
At the same time, the case law that I have found indicates that the
Government may well be right: The marketing order may afford just
compensation for the takings of raisins that it imposes. If that is
correct, then the reserve requirement does not violate the Takings
Clause.

															I

															The Takings Clause of the Fifth Amendment
provides that “private property [shall not] be taken for public
use, without just compensation.” The Clause means what it says: It
“does not proscribe the taking of property; it proscribes taking without just compensation .” Williamson County Regional
Planning Comm’n v. Hamilton Bank of Johnson City , 473
U. S. 172, 194 (1985) (emphasis added). Under the Clause, a
property owner “is entitled to be put in as good a position
pecuniarily as if his property had not been taken,” which is to say
that “[h]e must be made whole but is not entitled to more.” Olson v. United States , 292 U. S. 246, 255
(1934) .

															On the record before us, the Hornes have not
established that the Government, through the raisin reserve
program, takes raisins without just compensation . When the
Government takes as reserve raisins a percentage of the annual
crop, the raisin owners retain the remaining, free-tonnage,
raisins. The reserve requirement is intended, at least in part, to
enhance the price that free-tonnage raisins will fetch on the open
market. See 7 CFR §989.55 (2015); 7 U. S. C. §602(1). And
any such enhancement matters. This Court’s precedents indicate
that, when calculating the just compensation that the Fifth
Amendment requires, a court should deduct from the value of the
taken (reserve) raisins any enhancement caused by the taking to the
value of the remaining (free-tonnage) raisins.

															More than a century ago, in Bauman v. Ross , 167 U. S. 548 (1897) , this Court established an
exception to the rule that “just compensation normally is to be
measured by ‘the market value of the property at the time of the
taking.’ ” United States v. 50 Acres of Land ,
469 U. S. 24, 29 (1984) (quoting Olson , supra, at 255). We considered in Bauman how to calculate just
compensation when the Government takes only a portion of a parcel
of property:

															“[W]hen part only of a parcel of land is
taken for a highway, the value of that part is not the sole measure
of the compensation or damages to be paid to the owner; but the
incidental injury or benefit to the part not taken is also to be
considered. When the part not taken is left in such shape or
condition, as to be in itself of less value than before, the owner
is entitled to additional damages on that account. When, on the
other hand, the part which he retains is specially and directly
increased in value by the public improvement, the damages to the
whole parcel by the appropriation of part of it are lessened.” 167
U. S., at 574.

															“The Constitution of the United States,” the
Court stated, “contains no express prohibition against considering
benefits in estimating the just compensation to be paid for private
property taken for the public use.” Id., at 584.

															The Court has consistently applied this method
for calculating just compensation: It sets off from the value of
the portion that was taken the value of any benefits conferred upon
the remaining portion of the property. See Regional Rail
Reorganization Act Cases, 419 U. S. 102, 151 (1974)
(“[C]onsideration other than cash—for example, any special benefits
to a property owner’s remaining properties—may be counted in the
determination of just compensation” (footnote omitted)); United
States v. Miller , 317 U. S. 369, 376 (1943) (“[I]f
the taking has in fact benefitted the remainder, the benefit may be
set off against the value of the land taken”); United States v. Sponenbarger , 308 U. S. 256 –267 (1939) (“[I]f
governmental activities inflict slight damage upon land in one
respect and actually confer great benefits when measured in the
whole, to compensate the landowner further would be to grant him a
special bounty. Such activities in substance take nothing from the
landowner”); Reichelderfer v. Quinn , 287 U. S.
315, 323 (1932) (“Just compensation . . . was awarded if
the benefits resulting from the proximity of the improvement [were]
set off against the value of the property taken from the same
owners”); Dohany v. Rogers , 281 U. S. 362 –368
(1930) (a statute that “permits deduction of benefits derived from
the construction of a highway” from the compensation paid to
landowners “afford[s] no basis for anticipating that
. . . just compensation will be denied”); Norwood v. Baker , 172 U. S. 269, 277 (1898) (“Except for [state
law], the State could have authorized benefits to be deducted from
the actual value of the land taken, without violating the
constitutional injunction that compensation be made for private
property taken for public use; for the benefits received could be
properly regarded as compensation pro tanto for the
property appropriated to public use”).

															The rule applies regardless of whether a taking
enhances the value of one property or the value of many
proper-ties. That is to say, the Government may “permi[t]
consideration of actual benefits—enhancement in market
value—flowing directly from a public work, although all in the
neighborhood receive like advantages.” McCoy v. Union
Elevated R. Co. , 247 U. S. 354, 366 (1918) . The
Federal Constitution does not distinguish between “special”
benefits, which specifically affect the property taken, and
“general” benefits, which have a broader impact.

															Of course, a State may prefer to guarantee a
greater payment to property owners, for instance by establishing a
standard for compensation that does not account for general
benefits (or for any benefits) afforded to a property owner by a
taking. See id., at 365 (describing categories of rules
applied in different jurisdictions); Schopflocher, Deduction of
Benefits in Determining Compensation or Damages in Eminent Domain,
145 A. L. R. 7, 158–294 (1943) (describing particular
rules applied in different jurisdictions). Similarly, “Congress . .
. has the power to authorize compensation greater than the
constitutional minimum.” 50 Acres of Land , supra , at
30, n. 14 (1984). Thus, Congress, too, may limit the types of
benefits to be considered. See, e.g., 33 U. S. C.
§595. But I am unaware of any congressional authorization that
would increase beyond the constitutional floor the compensation
owed for a taking of the Hornes’ raisins.

															If we apply Bauman and its progeny to the
marketing order’s reserve requirement, “the benefit [to the
free-tonnage raisins] may be set off against the value of the
[reserve raisins] taken.” Miller , supra, at 376. The
value of the raisins taken might exceed the value of the benefit
conferred. In that case, the reserve requirement effects a taking
without just compensation, and the Hornes’ decision not to comply
with the requirement was justified. On the other hand, the benefit
might equal or exceed the value of the raisins taken. In that case,
the California Raisin Marketing Order does not effect a taking
without just compensation. See McCoy, supra, at 366 (“In
such [a] case the owner really loses nothing which he had before;
and it may be said with reason, there has been no real injury”); Brown v. Legal Foundation of Wash. , 538 U. S.
216, 237 (2003) (“[I]f petitioners’ net loss was zero, the
compensation that is due is also zero”). And even the Hornes agree
that if the reserve requirement does not effect a taking without
just compensation, then they cannot use the Takings Clause to
excuse their failure to comply with the marketing order—or to
justify their refusal to pay the fine and penalty imposed based on
that failure. See Brief for Petitioners 31 (“The constitutionality
of the fine rises or falls on the constitutionality of the
Marketing Order’s reserve requirement and attendant transfer of
reserve raisins” (internal quotation marks omitted)).

															II

															The majority believes the Bauman line of
cases most likely does not apply here. It says that those cases do
“not create a generally applicable exception to the usual
compensation rule, based on asserted regulatory benefits of the
sort at issue here.” Ante, at 16. But it is unclear to me
what distinguishes this case from those.

															It seems unlikely that the majority finds a
distinction in the fact that this taking is based on regulatory
authority. Cf. Chrysler Corp. v. Brown , 441
U. S. 281, 295 (1979) (“It has been established in a variety
of contexts that properly promulgated, substantive agency
regulations have the force and effect of law” (internal quotation
marks omitted)). It similarly seems unlikely that the majority
intends to distinguish between takings of real property and takings
of personal property, given its recognition that the Takings Clause
“protects ‘private property’ without any distinction between
different types.” Ante, at 5. It is possible that the
majority questions the Government’s argument because of its
breadth—the Government argues that “it would be appropriate to
consider what value all of the raisins would have had in the
absence of the marketing order ,” and I am unaware of any
precedent that allows a court to account for portions of the
marketing order that are entirely separate from the reserve
requirement. But neither am I aware of any precedent that would
distinguish between how the Bauman doctrine applies to the
reserve requirement itself and how it applies to other types of
partial takings.

															Ultimately, the majority rejects the
Government’s request for a remand because it believes that the
Government “does not suggest that the marketing order affords the
Hornes compensation” in the amount of the fine that the Government
assessed. Ante, at 17. In my view, however, the relevant
precedent indicates that the Takings Clause requires compensation
in an amount equal to the value of the reserve raisins adjusted to
account for the benefits received. And the Government does, indeed,
suggest that the marketing order affords just compensation. See
Brief for Respondent 56 (“It is likely that when all benefits and
alleged losses from the marketing order are calculated, [the
Hornes] would have a net gain rather than a net loss, given
that a central point of the order is to benefit producers”).
Further, the Hornes have not demonstrated the contrary. Before
granting judgment in favor of the Hornes, a court should address
the issue in light of all of the relevant facts and law.

															*  *  *

															Given the precedents, the parties should provide
full briefing on this question. I would remand the case, permitting
the lower courts to consider argument on the question of just
compensation.

															For these reasons, while joining Parts I and II
of the Court’s opinion, I respectfully dissent from Part III. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–275

															_________________

															MARVIN D. HORNE, et al., PETITIONERS v. DEPARTMENT OF AGRICULTURE

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															[June 22, 2015]

															Justice Sotomayor, dissenting.

															The Hornes claim, and the Court agrees, that the
Raisin Marketing Order, 7 CFR pt. 989 (2015) (hereinafter Order),
effects a per se taking under our decision in Loretto v. Teleprompter Manhattan CATV Corp. , 458
U. S. 419 (1982) . But Loretto sets a high bar for such
claims: It requires that each and every property right be destroyed
by governmental action before that action can be said to have
effected a per se taking. Because the Order does not
deprive the Hornes of all of their property rights, it does not
effect a per se taking. I respectfully dissent from the
Court’s contrary holding.

															I

															Our Takings Clause jurisprudence has generally
eschewed “magic formula[s]” and has “recognized few invariable
rules.” Arkansas Game and Fish Comm’n v. United
States , 568 U. S. ___, ___–___ (2012) (slip op., at 6–7).
Most takings cases therefore proceed under the fact-specific
balancing test set out in Penn Central Transp. Co. v. New
York City , 438 U. S. 104 (1978) . See Arkansas Game and
Fish Comm’n , 568 U. S., at ___ (slip op., at 7); Lingle v. Chevron U. S. A. Inc. , 544
U. S. 528 –539 (2005). The Hornes have not made any argument
under Penn Central . In order to prevail, they therefore must
fit their claim into one of the three narrow categories in which we
have assessed takings claims more categorically.

															In the “special context of land-use exactions,”
we have held that “government demands that a landowner dedicate an
easement allowing public access to her property as a condition of
obtaining a development permit” constitute takings unless the
government demonstrates a nexus and rough proportionality between
its demand and the impact of the proposed development. Lingle, 544 U. S., at 538, 546; see Dolan v. City of Tigard , 512 U. S. 374, 386, 391 (1994) ; Nollan v. California Coastal Comm’n , 483 U. S.
825, 837 (1987) . We have also held that a regulation that deprives
a property owner of “ all economically beneficial us[e]” of
his or her land is a per se taking. Lucas v. South Carolina Coastal Council , 505 U. S. 1003, 1019
(1992) (emphasis in original). The Hornes have not relied on either
of these rules in this Court. See Brief for Petitioners 42, 55.

															Finally—and this is the argument the Hornes do
rely on—we have held that the government effects a per se taking when it requires a property owner to
suffer a “permanent physical occupation” of his or her property. Lor-etto , 458 U. S., at 426. In my view, however, Loretto —when properly understood—does not encompass the
circumstances of this case because it only applies where all
property rights have been destroyed by governmental action. Where
some property right is retained by the owner, no per se taking under Loretto has occurred.

															This strict rule is apparent from the reasoning
in Lor-etto itself. We explained that “[p]roperty rights in
a physical thing have been described as the rights ‘to possess, use
and dispose of it.’ ” Id., at 435 (quoting United
States v. General Motors Corp. , 323 U. S. 373, 378
(1945) ). A “permanent physical occupation” of property occurs, we
said, when governmental action “destroys each of these
rights.” 458 U. S., at 435 (emphasis in original); see ibid., n. 12 (requiring that an owner be “absolutely
dispossess[ed]” of rights). When, as we held in Loretto , each of these rights is destroyed, the government has not
simply “take[n] a single ‘strand’ from the ‘bundle’ of property
rights”; it has “chop[ped] through the bundle” entirely. Id., at 435. In the narrow circumstance in which a property
owner has suffered this “most serious form of invasion of [his or
her] property interests,” a taking can be said to have occurred
without any further showing on the property owner’s part. Ibid. By contrast, in the mine run of cases where
governmental action impacts property rights in ways that do not
chop through the bundle entirely, we have declined to apply per se rules and have instead opted for the more
nuanced Penn Central test. See, e.g., Hodel v. Irving , 481 U. S. 704 (1987) (applying Penn
Central to assess a requirement that title to land within
Indian reservations escheat to the tribe upon the landowner’s
death); PruneYard Shopping Center v. Robins , 447
U. S. 74 –83 (1980) (engaging in similar analysis where there
was “literally . . . a ‘taking’ of th[e] right” to
exclude); Kaiser Aetna v. United States , 444
U. S. 164 –180 (1979) (applying Penn Central to find
that the Government’s imposition of a servitude requiring public
access to a pond was a taking); see also Loretto , 458
U. S., at 433–434 (distinguishing PruneYard and Kaiser Aetna ). Even governmental action that reduces the
value of property or that imposes “a significant restriction
. . . on one means of disposing” of property is not a per se taking; in fact, it may not even be a taking at
all. Andrus v. Allard , 444 U. S. 51 –66
(1979).

															What our jurisprudence thus makes plain is that
a claim of a Loretto taking is a bold accusation that
carries with it a heavy burden. To qualify as a per se taking under Lor-etto , the governmental action must be so
completely destruc-tive to the property owner’s rights—all of
them—as to render the ordinary, generally applicable protections of
the Penn Central framework either a foregone conclusion or
unequal to the task. Simply put, the retention of even one property
right that is not destroyed is sufficient to defeat a claim of a per se taking under Loretto .

															II

															A

															When evaluating the Order under this rubric,
it is important to bear two things in mind. The first is that Lor-etto is not concerned with whether the Order is a good
idea now, whether it was ever a good idea, or whether it intrudes
upon some property rights. The Order may well be an outdated, and
by some lights downright silly, regulation. It is also no doubt
intrusive. But whatever else one can say about the Order, it is not
a per se taking if it does not result in the
destruction of every property right. The second thing to keep in
mind is the need for precision about whose property rights are at
issue and about what property is at issue. Here, what is at issue
are the Hornes’ property rights in the raisins they own and that
are subject to the reserve requirement. The Order therefore effects
a per se taking under Loretto if and only if
each of the Hornes’ property rights in the portion of raisins that
the Order designated as reserve has been destroyed. If not, then
whatever fate the Order may reach under some other takings test, it
is not a per se taking.

															The Hornes, however, retain at least one
meaningful property interest in the reserve raisins: the right to
receive some money for their disposition. The Order explicitly
provides that raisin producers retain the right to “[t]he net
proceeds from the disposition of reserve tonnage raisins,” 7 CFR
§989.66(h), and ensures that reserve raisins will be sold “at
prices and in a manner intended to maxim[ize] producer returns,”
§989.67(d)(1). According to the Government, of the 49 crop years
for which a reserve pool was operative, producers received
equitable distributions of net proceeds from the disposition of
reserve raisins in 42. See Letter from Donald B. Verrilli, Jr.,
Solicitor General, to Scott S. Harris, Clerk of Court (Apr. 29,
2015).

															Granted, this equitable distribution may
represent less income than what some or all of the reserve raisins
could fetch if sold in an unregulated market. In some years, it may
even turn out (and has turned out) to represent no net income. But
whether and when that occurs turns on market forces for which the
Government cannot be blamed and to which all commodities—indeed,
all property—are subject. In any event, we have emphasized that “a
reduction in the value of property is not necessarily equated with
a taking,” Andrus , 444 U. S., at 66, that even “a
significant restriction . . . imposed on one means of
disposing” of property is not necessarily a taking, id., at
65, and that not every “ ‘injury to property by governmental
action’ ” amounts to a taking, PruneYard , 447
U. S., at 82. Indeed, we would not have used the word
“destroy” in Loretto if we meant “damaged” or even
“substantially damaged.” I take us at our word: Loretto ’s
strict requirement that all property interests be “destroy[ed]” by
governmental action before that action can be called a per se taking cannot be satisfied if there remains a
property interest that is at most merely damaged. That is the case
here; accordingly, no per se taking has occurred.

															Moreover, when, as here, the property at issue
is a fungible commodity for sale, the income that the property may
yield is the property owner’s most central interest. Cf. Ruckelshaus v. Monsanto Co. , 467 U. S. 986, 1002
(1984) (noting that the “nature” of particular property defines
“the extent of the property right therein”). “[A]rticles of
commerce,” in other words, are “desirable because [they are]
convertible into money.” Leonard & Leonard v. Earle , 279 U. S. 392, 396 (1929) . The Hornes do not
use the raisins that are subject to the reserve requirement—which
are, again, the only raisins that have allegedly been unlawfully
taken—by eating them, feeding them to farm animals, or the like.
They wish to use those reserve raisins by selling them, and they
value those raisins only because they are a means of acquiring
money. While the Order infringes upon the amount of that potential
income, it does not inexorably eliminate it. Unlike the law in Loretto , see 458 U. S., at 436, the Order therefore
cannot be said to have prevented the Hornes from making any use of the relevant property.

															The conclusion that the Order does not effect a per se taking fits comfortably within our precedents.
After all, we have observed that even “[r]egulations that bar trade
in certain goods” altogether—for example, a ban on the sale of
eagle feathers—may survive takings challenges. Andrus , 444
U. S., at 67. To be sure, it was important to our decision in Andrus that the regulation at issue did not prohibit the
possession, donation, or devise of the prop-erty. See id., at 66. But as to those feathers the plaintiffs would have liked to
sell, the law said they could not be sold at any price—and
therefore categorically could not be converted into money. Here,
too, the Hornes may do as they wish with the raisins they are not
selling. But as to those raisins that they would like to sell, the
Order subjects a subset of them to the reserve requirement, which
allows for the conversion of reserve raisins into at least some money and which is thus more generous than the
law in Andrus . We held that no taking occurred in Andrus , so rejecting the Hornes’ claim follows a fortiori .

															We made this principle even clearer in Lucas , when we relied on Andrus and said that where,
as here, “property’s only economically productive use is sale or
manufacture for sale,” a regulation could even “render [that]
property economically worthless ” without effecting a per se taking. Lucas , 505 U. S., at
1027–1028 (citing Andrus , 444 U. S., at 66–67; emphasis
added). The Order does not go nearly that far. It should easily
escape our approbation, at least where a per se takings
claim is concerned.

															B

															The fact that at least one property right is
not destroyed by the Order is alone sufficient to hold that this
case does not fall within the narrow confines of Loretto .
But such a holding is also consistent with another line of cases
that, when viewed together, teach that the government may require
certain property rights to be given up as a condition of entry into
a regulated market without effecting a per se taking.

															First, in Leonard & Leonard v. Earle , 279 U. S. 392 , we considered a state law that
required those who wished to engage in the business of oyster
packing to deliver to the State 10 percent of the empty oyster
shells. We rejected the argument that this law effected a taking
and held that it was “not materially different” from a tax upon the
privilege of doing business in the State. Id., at 396. “[A]s
the packer lawfully could be required to pay that sum in money,” we
said, “nothing in the Federal Constitution preventsthe State from
demanding that he give up the same per cent. of such shells.” Ibid. [ 1 ]

															Next, in Ruckelshaus v. Monsanto
Co. , 467 U. S. 986 , we held that no taking occurred when
a provision of the Federal Insecticide, Fungicide, and Rodenticide
Act required companies that wished to sell certain pesticides to
first submit sensitive data and trade secrets to the Environmental
Protection Agency as part of a registration process. Even though
the EPA was permitted to publicly disclose some of that submitted
data—which would have had the effect of revealing trade secrets,
thus substantially diminishing or perhaps even eliminating their
value—we reasoned that, like the privilege tax in Leonard &
Leonard , the disclosure requirement was the price Monsanto had
to pay for “ ‘the advantage of living and doing business in a
civilized community.’ ” 467 U. S., at 1007 (quoting Andrus , 444 U. S., at 67; some internal quotation marks
omitted). We offered nary a suggestion that the law at issue could
be considered a per se taking, and instead recognized
that “a voluntary submission of data by an applicant” in exchange
for the ability to participate in a regulated market “can hardly be
called a taking.” 467 U. S., at 1007.[ 2 ]

															Finally, in Yee v. Escondido , 503
U. S. 519 (1992) , we addressed a mobile-home park
rent-control ordinance that set rents at below-market rates. We
held the ordinance did not effect a taking under Loretto ,
even when it was considered in conjunction with other state laws
regarding eviction that effectively permitted tenants to remain at
will, because it only regulated the terms of market participation.
See 503 U. S., at 527–529.

															Understood together, these cases demonstrate
that the Government may condition the ability to offer goods in the
market on the giving-up of certain property interests without
effecting a per se taking.[ 3 ] The Order is a similar regulation. It has no effect
whatsoever on raisins that the Hornes grow for their own use. But
insofar as the Hornes wish to sell some raisins in a market
regulated by the Government and at a price supported by
governmental intervention, the Order requires that they give up the
right to sell a portion of those raisins at that price and instead
accept disposal of them at a lower price. Given that we have held
that the Government may impose a price on the privilege of engaging
in a particular business without effecting a taking—which is all
that the Order does—it follows that the Order at the very least
does not run afoul of our per se takings jurisprudence.
Under a different takings test, one might reach a different
conclusion. But the Hornes have advanced only this narrow per se takings claim, and that claim fails.

															III

															The Court’s contrary conclusion rests upon two
fundamental errors. The first is the Court’s breezy assertion that
a per se taking has occurred because the Hornes “lose
the entire ‘bundle’ of property rights in the appropriated raisins
. . . with the exception of” the retained interest in the
equitable distribution of the proceeds from the disposition of the
reserve raisins. Ante , at 8–9. But if there is a property
right that has not been lost, as the Court concedes there is, then
the Order has not destroyed each of the Hornes’ rights in
the reserve raisins and does not effect a per se taking. The Court protests that the retained interest is not
substantial or certain enough. But while I see more value in that
interest than the Court does, the bottom line is that Loretto does not distinguish among retained property
interests that are substantial or certain enough to count and
others that are not.[ 4 ] Nor is
it at all clear how the Court’s approach will be administrable.
How, after all, are courts, governments, or individuals supposed to
know how much a property owner must be left with before this Court
will bless the retained interest as sufficiently meaningful and
certain?

															One virtue of the Loretto test was, at
least until today, its clarity. Under Loretto , a total
destruction of all prop-erty rights constitutes a per se taking; anything less does not. See 458
U. S., at 441 (noting the “very narrow” nature of the Loretto framework). Among the most significant doctrinal
damage that the Court causes is the blurring of this otherwise
bright line and the expansion of this otherwise narrow category. By
the Court’s lights, perhaps a 95 percent destruction of property
rights can be a per se taking. Perhaps 90? Perhaps 60,
so long as the remaining 40 is viewed by a reviewing court as less
than meaningful? And what makes a retained right meaningful enough?
One wonders. Indeed, it is not at all clear what test the Court has
actually applied. Such confusion would be bad enough in any
context, but it is especially pernicious in the area of property
rights. Property owners should be assured of where they stand, and
the government needs to know how far it can permissibly go without
tripping over a categorical rule.

															The second overarching error in the Court’s
opinion arises from its reliance on what it views as the uniquely
physical nature of the taking effected by the Order. This, it says,
is why many of the cases having to do with so-called regulatory
takings are inapposite. See ante, at 9–12. It is not the
case, however, that Government agents acting pursuant to the Order
are storming raisin farms in the dark of night to load raisins onto
trucks. But see Tr. of Oral Arg. 30 (remarks of Roberts,
C. J.). The Order simply requires the Hornes to set aside a
portion of their raisins—a requirement with which the Hornes
refused to comply. See 7 CFR §989.66(b)(2); Tr. of Oral Arg. 31.
And it does so to facilitate two classic regulatory goals. One is
the regulatory purpose of limiting the quantity of raisins that can
be sold on the market. The other is the regula-tory purpose of
arranging the orderly disposition of those raisins whose sale would
otherwise exceed the cap.

															The Hornes and the Court both concede that a cap
on the quantity of raisins that the Hornes can sell would not be a per se taking. See ante, at 9; Brief for
Petitioners 23, 52. The Court’s focus on the physical nature of the
intrusion also suggests that merely arranging for the sale of the
reserve raisins would not be a per se taking. The rub
for the Court must therefore be not that the Government is doing
these things, but that it is accomplishing them by the altogether
understandable requirement that the reserve raisins be physically
set aside. I know of no principle, however, providing that if the
Government achieves a permissible regulatory end by asking
regulated individuals or entities to physically move the property
subject to the regulation, it has committed a per se taking rather than a potential regulatory taking. After all, in Monsanto , the data that the pesticide companies had to turn
over to the Government was presumably turned over in some physical
form, yet even the Court does not call Monsanto a physical
takings case. It therefore cannot be that any regulation that
involves the slightest physical movement of property is necessarily
evaluated as a per se taking rather than as a
regulatory taking.

															The combined effect of these errors is to
unsettle an important area of our jurisprudence. Unable to justify
its holding under our precedents, the Court resorts to
superimposing new limitations on those precedents, stretching the
otherwise strict Loretto test into an unadministrable one,
and deeming regulatory takings jurisprudence irrelevant in some
undefined set of cases involving government regulation of property
rights. And it does all of this in service of eliminating a type of
reserve requirement that is applicable to just a few commodities in
the entire country—and that, in any event, commodity producers
could vote to terminate if they wished. See Letter from Solicitor
General to Clerk of Court (Apr. 29, 2015); 7 U. S. C.
§608c(16)(B); 7 CFR §989.91(c). This intervention hardly strikes me
as worth the cost, but what makes the Court’s twisting of the
doctrine even more baffling is that it ultimately instructs the
Government that it can permissibly achieve its market control goals
by imposing a quota without offering raisin producers a way of
reaping any return whatsoever on the raisins they cannot sell. I
have trouble understanding why anyone would prefer that.

															*  *  *

															Because a straightforward application of our
precedents reveals that the Hornes have not suffered a per se taking, I would affirm the judgment of the Ninth
Circuit. The Court reaches a contrary conclusion only by expanding
our per se takings doctrine in a manner that is as
unwarranted as it is vague. I respectfully dissent. Notes 1 The Court attempts to
distinguish Leonard & Leonard because it involved wild
oysters, not raisins. Ante , at 14. That is not an inaccurate
factual statement, but I do not find in Leonard &
Leonard any suggestion that its holding turned on this or any
other of the facts to which the Court now points. Indeed, the only
citation the Court offers for these allegedly crucial facts is the
Maryland Court of Appeals’ opinion, not ours. See ante , at
14 . 2 The Court claims that Monsanto is distinguishable for three reasons, none of which
hold up. First, it seems, the Court believes the degree of the
intrusion on property rights is greater here than in Monsanto . See ante , at 13. Maybe, maybe not. But
nothing in Monsanto suggests this is a relevant question,
and the Court points to nothing saying that it is. Second, the
Court believes that “[s]elling produce in interstate commerce” is
not a government benefit. Ante , at 13. Again, that may be
true, but the Hornes are not simply selling raisins in interstate
commerce. They are selling raisins in a regulated market at a price
artificially inflated by Government action in that market. That is
the benefit the Hornes receive, and it does not matter that they
“would rather not have” received it. United States v. Sperry Corp. , 493 U. S. 52 –63 (1989). Third, the Court
points out that raisins “are not dangerous pesticides; they are a
healthy snack.” Ante , at 13. I could not agree more, but
nothing in Monsanto , or in Andrus for that matter,
turned on the dangerousness of the commodity at issue. 3 The Court points out
that, in a footnote in Loretto v . Teleprompter Manhattan
CATV Corp., 458 U. S. 419 (1982) , we suggested that it
did not matter for takings purposes whether a property owner could
avoid an intrusion on her property rights by using her property
differently. See ante , at 12 (quoting 458 U. S., at
439, n. 17). But in Yee v. Escondido, 503
U. S. 519 (1992) , we clarified that, where a law does not on
its face effect a per se taking, the voluntariness of a
particular use of property or of entry into a particular market is
quite relevant. See id., at 531–532. In other words, only
when a law requires the forfeiture of all rights in property
does it effect a per se taking regardless of whether
the law could be avoided by a different use of the property. As
discussed above, the Order is not such a law. 4 The Court relies on Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency , 535 U. S. 302, 322 (2002) , for the
proposition that “ ‘[w]hen the government physically takes
possession of an interest in property for some public purpose, it
has a categorical duty to compensate the former owner, regardless
of whether the interest that is taken constitutes an entire parcel
or merely a part thereof.’ ” Ante, at 10. But all that
means is that a per se taking may be said to have
occurred with respect to the portion of property that has been
taken even if other portions of the property have not been taken.
This is of no help to the Hornes, or to the Court, because it in no
way diminishes a plaintiff’s burden to demonstrate a per se taking as to the portion of his or her property
that he or she claims has been taken—here, the reserve raisins. As
to that specific property, a per se taking occurs if
and only if the Loretto conditions are
satisfied.

Summary: The Supreme Court ruled that the government's physical taking of personal property (in this case, raisins) requires just compensation under the Fifth Amendment, regardless of the government's intentions or benefits provided to the growers. This case sets a precedent for government takings of personal property, emphasizing the rights of property owners.