When the government takes your land to build a road, highway or create a park, you get paid. That’s because while the government has the power of eminent domain —that is, the power to take private property for public use — the Fifth Amendment requires that it compensate you for any land it takes when it uses that power.
But the federal government has been taking land from farmers — and it hasn’t been paying them.
Outside of the farming industry, few people know that for nearly 40 years, the government has put the financial burden of conserving the nation’s wetlands onto farmers’ shoulders. Farmers are required to preserve “wetlands” on their property — the government doesn’t compensate them for it, but it should.
That’s because the federal government makes farmers sign an agreement to give up their “wetlands” to be eligible for U.S. Department of Agriculture (USDA) benefits — which includes everything from disaster relief to crop insurance to the ability to apply for loans. It’s compulsory conservation, through a law called “Swampbuster.”
Congress created the Swampbuster legislation to combat the common practice of draining, dredging or filling wetlands to convert them into tillable land for farming.
While well-intentioned, this conservation scheme has two major constitutional flaws. One, it conditions the receipt of federal benefits on the waiver of a constitutional right. Two, it takes private property without paying just compensation.
Generally speaking, the federal government doesn’t have the authority to regulate private property — that authority is delegated to the States. To compel conservation of wetlands on private property, Congress conditioned the receipt of USDA benefits on farmers’ agreement to relinquish the use of their property should any wetlands be found.
The form to apply for USDA benefits looks innocuous, appearing to just require farmers certify that they’ll comply with federal law. But agreeing to comply with Swampbuster means the farmer essentially agrees to create a conservation easement that will remain in place forever, forcing farmers who need every possible bit of soil to be farmable to make their farms financially viable to give up large swathes of their land for the government’s use, without receiving any compensation. And if the farmer ever does anything to the wetlands, then they could lose all USDA benefits — not just for that property but also all properties the farmer, or anyone affiliated with the farmer, owns.
This scheme is unconstitutional. The government cannot condition benefits on the waiver of a constitutional right — in this case, the Fifth Amendment right to be compensated when the government takes some or all of your land.
If welfare recipients had to promise to never criticize the government to receive welfare benefits, it would be plainly unconstitutional. It would be similarly unjust to require social security recipients to promise that they would not own or possess any firearms before they could access social security.
Why should farmers’ rights be any different? They should not be coerced into signing away their rights to private property and just compensation to access federal benefits.
That’s why the Liberty Justice Center, along with Pacific Legal Foundation and the Upper Midwest Law Center, has sued to end this law on behalf of a farmer with land in Iowa — and all farmers across the country, whose rights have been violated by Swampbuster for too long.
Loren Seehase serves as Senior Counsel at Liberty Justice Center.