In the second long anticipated U.S. Supreme Court decision today, the six conservative Justices on the Court, led by Chief Justice John Roberts, in Cedar Point Nursery v. Hassid held that California’s access regulation, which gives union organizers the right to enter the property of agricultural employers for a certain amount of time, constitutes a per se physical taking for which the property owner is owed just compensation.
Supreme Court reporter Mark Joseph Stern explains at Slate, The Supreme Court’s Latest Union-Busting Decision Goes Far Beyond California Farmworkers:
In the 1960s, the United Farm Workers began demanding better pay and working conditions for California’s agricultural workers, who were subject to egregious exploitation and abuse. Led by César Chávez and Dolores Huerta, the union’s campaign culminated in the passage of the California Agricultural Labor Relations Act. Among other guarantees, this landmark law granted union organizers limited, temporary access to agricultural workplaces to speak with laborers. Businesses challenged the act as a violation of their property rights, but in 1976, the U.S. Supreme Court dismissed the case “for want of a substantial federal question.”
Following precedent and stare decisis means nothing to the Roberts Court. Chief Justice Roberts Almost Always Votes to Overturn Precedent (For Partisan Ends).
The Supreme Court of 2021—stacked, as it is, with six conservative Republican-appointed justices—sees things differently. On Wednesday, the court’s conservative supermajority held that California’s law violates the Fifth Amendment, which bars the taking of private property for public use “without just compensation.” Remarkably, the majority held that the law constitutes a “per se taking”—not a mere regulation, but an “appropriation” of property that flouts the owners’ “right to exclude.” The court’s 6–3 decision in Cedar Point Nursery v. Hassid is thus a crushing blow to organized labor, which often relies on workplace access to safeguard workers’ rights. It also undermines the broader legal framework that permits the government to impose all manner of regulations on private property, including workplace safety laws and nondiscrimination requirements. With Cedar Point, the Supreme Court has handed business owners a loaded gun to aim at every regulation they oppose.
[F]or many years, Justice Antonin Scalia agitated to expand the definition of per se takings in a crusade to curb the government’s regulatory authority. He never quite succeeded—but in Cedar Point, Chief Justice John Roberts finished the job for him. Roberts’ opinion for the court deemed California’s union access law a per se taking that requires just compensation for agribusiness owners. How could that be? After all, union organizers are not on the property every day, but rather for three hours a day, 120 days a year; they do not constitute a “permanent physical occupation.” Nor do these organizers halt “all economically beneficial or productive use” of the land; most employees keep working, harvesting the produce that makes their bosses wealthy.
To get around this problem, Roberts changed the law (under the guise of applying precedent): He declared that a law that temporarily limits a property owner’s “right to exclude” qualifies as a per se taking of private property, compelling the government to pay the property owner. Any time a regulation allows third parties to “physically invade” property—even for a brief time—it “takes” that property under the Fifth Amendment, the chief justice concluded. As a result, the state must either compensate property owners or else cease its activities.
As Justice Stephen Breyer noted in dissent, this holding does not fit with Supreme Court precedent. Yes, the court has held that a temporary “physical appropriation” of property is a per se taking. But, Breyer wrote, California’s law “does not appropriate anything. It does not take from the owners a right to invade (whatever that might mean). It does not give the union organizations the right to exclude anyone. It does not give the government the right to exclude anyone.” Instead, the law merely “limits the landowners’ right to exclude certain others.” Until Wednesday, such regulations had not been deemed a per se taking. Now they will be.
The consequences of Roberts’ maximalist decision will be swift and severe. Most obviously, it will hobble unions’ ability to help California’s agricultural workers, who toil in dangerous conditions, facing the persistent threat of illness and death, for rock-bottom wages. Agribusinesses are notorious for exploiting these laborers, many of whom are immigrants who speak limited English. California’s union access rule arose out of necessity: Many farmworkers are migrants who continually move around the state in pursuit of seasonal work and lack permanent housing. They are, in short, inaccessible outside the workplace. If unions cannot speak to them at their job, they may not be able to speak to them at all.
Roberts did not explain how California could remedy the constitutional violation identified in Cedar Point, but it’s notable that the plaintiffs did not even ask for “just compensation.” Instead, they asked for an injunction excluding union organizers from their property. In theory, the state could fix the problem by compensating agribusinesses for unions’ “invasion” of their property. But how much would that cost? At oral arguments, Justice Amy Coney Barrett floated $50 per “taking”—a charge that would quickly balloon as every California agribusiness demanded payment each time a union organizer stepped on their property. And the plaintiffs suggested that businesses are owed much more. Are state lawmakers willing to cover that bill? Or will California require the unions to pay the cost? If so, might unions simply forgo farm access rather than pay out huge sums to every agribusiness they try to organize?
But the broader implications extend into nearly every corner of commercial activity in the U.S. In dissent, Breyer pointed to “the large numbers of ordinary regulations” that permit an “invasion of” private property. The government can enter a business to examine food products and inspect private schools, for example. Its agents can enter all manner of businesses to ensure compliance with run-of-the-mill health and safety laws. And it can force businesses to serve certain customers by passing civil rights measures. Are these per se takings?
To avoid answering this question, Roberts invented exceptions to Cedar Point’s new rule, including “a business generally open to the public.” As Harvard Law professor Niko Bowie wrote on Wednesday, however, the chief justice’s improvised exceptions won’t actually prevent businesses from refashioning typical regulations as a “taking.” Nondiscrimination laws “take” a club’s right to exclude women, religious minorities, and other disfavored groups. Environmental regulations “take” a landowner’s right to exclude inspectors. Fair housing laws “take” a landlord’s right to exclude Black renters. If guaranteed access to private property (including commercial businesses) is a per se “taking,” then, as Bowie put it, the government will have to start paying for what it regulates.
None of this is required by the original public meaning of the Constitution. Not even close. The Fifth Amendment’s framers understood the takings clause to apply only to direct appropriation of physical property. They carried on a long tradition, rooted in English common law and colonial practice, of authorizing entry onto private property for public purposes. The “right to exclude” that Roberts conjured in Cedar Point is not a constitutional principle but a policy judgment thinly veiled in legalese. It is the product of the conservative legal movement’s relentless demands for deregulation by judicial fiat—for a return to the era when federal courts struck down health, safety, and economic policies on the basis of their own political preferences.
The most optimistic spin on Cedar Point is that the Supreme Court will limit its reasoning to the context of unions. That, after all, is what the court did in 2018’s Janus v. AFSCME, hobbling public sector unions by creating a constitutional rule that applies to nobody else. The conservative justices’ evident hostility toward organized labor may not extend to the myriad regulations jeopardized by Cedar Point; the decision may be a ticket good for one ride only. That’s cold comfort to thousands of low-income workers who will now be subjected to even more abuse on the job. But if the court takes Cedar Point to its logical conclusion, we are entering a new era of black-robed rulers overriding lifesaving regulations put in place by representatives of the people.
This is how a conservative activist court undermines the rule of law and public faith in the judiciary, as Justice Roberts pursues a corporatocracy.
UPDATE: Supreme Court reporter Ina Millhiser at Vox adds, “The Court’s new union-busting decision reads like something out of Ayn Rand’s darkest fantasies.” The Supreme Court just handed down disastrous news for unions:
Since 1956, the Supreme Court has applied a well-established framework to businesses that wished to exclude union organizers from their property. On Wednesday, however, the Court effectively scrapped that framework — one that was already fairly restrictive of union organizing — and replaced it with something far more restrictive.
In the process of deciding Wednesday’s case, Cedar Point Nursery v. Hassid, the Court also rewrites much of its existing Fifth Amendment law. Then it adds caveats to its new rule that resemble the reasoning behind an infamous anti-labor decision [Lochner] from more than a century ago. The Court’s decision is rooted in value judgments about what sort of regulations are desirable and what should be forbidden — namely, those protecting workers’ rights. And it was handed down on a party-line, 6-3 vote.
Cedar Point is a sign the radical new conservative regime that many Republicans crave and that liberals fear could actually be upon us. The Court fundamentally reshaped much of American property law in Cedar Point. It did so in a party-line vote. And it did so in a case involving labor unions — institutions that are often celebrated by liberals and loathed by conservatives.
In order to reach his result, Roberts rewrites decades of law interpreting the takings clause.
The Court’s new interpretation of the takings clause is extraordinarily deferential to property owners
Before Wednesday, the Court distinguished between two different types of violations of the takings clause. “Per se” takings involved unusually severe intrusions on private property — such as if the government strips a plot of land of all of its economic value — and were treated with particular skepticism by courts. Less severe intrusions, meanwhile, were classified as “regulatory” takings.
Property owners subject to a per se taking nearly always prevail in court, while property owners alleging a regulatory taking are much less likely to succeed — even when the government imposes fairly strict limitations on how they can use their property. In one famous regulatory takings case, the Court upheld a New York City law preventing the owners of Grand Central Terminal from constructing a high-rise office building on top of the station.
Because the Court views per se takings with such extraordinary skepticism, past decisions held that very few intrusions on private property qualify as such. A per se taking did not occur unless the government deprived a property owner of “all economically beneficial or productive use” of their property, or subjected the property owner to a “permanent physical occupation” of their land.
Thus, California’s regulation did not qualify as a per se taking prior to Cedar Point, as the presence of union organizers does not strip a worksite of all of its economic value, and the regulation did not allow those organizers to permanently occupy a worksite. It only allowed them to enter the property for three hours a day, and for only about a third of the year.
Roberts’s opinion didn’t eliminate this distinction between regulatory and per se takings altogether, but it significantly blurred the line. Under the new rule announced in Cedar Point, any law or regulation that “appropriates a right to invade” private property amounts to a per se taking. If California allowed union organizers to enter an employer’s land for a single minute, then California committed a per se taking.
“The right to exclude is ‘one of the most treasured’ rights of property ownership,” Roberts writes. And much of his opinion suggests that any intrusion on this right to exclude amounts to a taking.
But then Roberts’s opinion takes an unusual turn, in an apparent effort to ward off some of the radical implications of its expansive vision of per se takings.
Roberts isn’t willing to live with the implications of his opinion for cases that don’t involve unions
One problem with Roberts’s expansive view of the takings clause is that it could prevent the government from performing very basic functions, such as health and safety inspections.
Suppose, for example, that a restaurant has a disgusting, rat-infested kitchen that violates numerous local health ordinances. The restaurant’s owners obviously do not want these violations to be discovered, so they refuse to admit any government health inspectors. Under Roberts’s reading of the takings clause, it’s not clear why the restaurant owner should not be allowed to do so — or why it shouldn’t be able to, at the very least, demand compensation from the government before health inspectors can be allowed on their property.
After all, if “the right to exclude is ‘one of the most treasured’ rights of property ownership,” why should an employer be allowed to exclude union organizers but not health inspectors?
Indeed, as California warned in its brief, the expansive vision of the takings clause laid out in much of Roberts’s opinion “would also imperil a wide variety of health- and safety-inspection regimes” (including “food and drug inspections, occupational safety and health inspections, and home visits by social workers”) as well as a federal law providing that “underground mines must be inspected ‘at least four times a year.’”
Roberts’s opinion recognizes that it would be untenable to hold that health and safety inspections violate the Constitution, so he carves out a special rule allowing such inspections to stand. “The government may require property owners to cede a right of access as a condition of receiving certain benefits,” such as a license to operate a business, Roberts writes, so long as that condition “bears an ‘essential nexus’ and ‘rough proportionality’ to the impact of the proposed use of the property.”
Those are some very large and very vague words, and it’s not entirely clear what it means for an inspection requirement to be roughly proportional to “the impact of the proposed use of the property.” Nor is it clear why, if the government can require restaurants to admit health inspectors as a condition of doing business, it can’t also require that restaurant to admit union organizers as a condition of employing workers.
The Court has simply made a value judgment here. It views health inspections as sufficiently important to justify creating an exception to its new understanding of the takings clause, but it doesn’t view protecting a worker’s right to organize as important enough to justify a similar exception.
There is precedent for this kind of thinking. In Lochner v. New York (1905), an infamous Supreme Court decision often taught in law schools as an example of how judges should not behave, the Court drew a similar line between laws intended to protect health and laws intended to protect workers from abuse.
Lochner struck down a New York state law limiting the number of hours that bakery workers could work in a given day or week (at the time, workers were typically paid by the day or by the week, so working additional hours did not mean more pay). In reaching this conclusion, the Court held that laws intended to “conserve the morals, the health, or the safety of the people” are typically valid, but laws intended to regulate working conditions are far more suspect.
But Lochner is now widely viewed as a terrible misstep by the Supreme Court, and even Roberts accepts this view of Lochner. Dissenting in Obergefell v. Hodges (2015), Roberts denounced “the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York.”
And yet, just six years after his opinion in Obergefell, Roberts is engaged in the very same kind of “judicial policymaking” — judging rooted in a judge’s personal value judgments rather than in law or precedent — that he once decried.
I posted about this possibility in Cedar Point earlier this year. A Radical Theory Of ‘Property Rights’ That Failed Against The Civil Rights Act Is Back At SCOTUS For Union Busting. There has been a movement on the far-right to revive the discredited Lochner Doctrine for years now. George Will’s radical ‘litmus test’ for a return to the Lochner era. These evil bastards are now closer to realizing their dream.
May he die of food poisoning contracted from a restaurant that was able to refuse health inspectors coming on the premises, because that’s ‘a taking’.