{"id":12619,"date":"2021-03-31T08:25:09","date_gmt":"2021-03-31T12:25:09","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=12619"},"modified":"2023-12-20T06:00:13","modified_gmt":"2023-12-20T11:00:13","slug":"supreme-court-considers-property-rights-and-future-of-regulation-in-cedar-point","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/supreme-court-considers-property-rights-and-future-of-regulation-in-cedar-point\/","title":{"rendered":"Supreme Court Considers Property Rights\u2014and Future of Regulation\u2014in Cedar Point"},"content":{"rendered":"

The Supreme Court heard <\/span>oral argument<\/span><\/a> last week in <\/span>Cedar Point Nursery v. Hassid<\/span><\/i>. The case, brought by two agricultural employers, involves a challenge to a 1975 California regulation that requires businesses employing farmworkers to allow union organizers on their property during non-work hours for up to three nonconsecutive hours a day, 120 days a year. The plaintiffs argued that this requirement violates the Fifth Amendment\u2019s prohibition on the taking of private property for public use without just compensation. To make their argument, plaintiffs proposed a radical expansion of what constitutes a taking\u2014one that could send shockwaves through many areas of government regulation.\u00a0<\/span><\/p>\n

Plaintiffs argued that the regulation constitutes a taking because it removes a fundamental stick from the bundle of sticks that is property rights: the right to exclude unwanted persons from private property. They argued that any governmental action that limits this right to exclude should constitute a per se (or categorical) taking, with arguments about the limited nature of the unwanted persons\u2019 intrusions going to the question of compensation rather than to the existence of a taking.\u00a0<\/span><\/p>\n

California pointed to two lines of Supreme Court categorical takings jurisprudence, and argued that the plaintiffs\u2019 theory fit neither. The regulation, California argued, is neither a permanent physical occupation of plaintiffs\u2019 property under <\/span>Loretto<\/span><\/i><\/a> nor does it deprive the plaintiffs of all economically beneficial or productive use under <\/span>Lucas<\/span><\/i><\/a> (itself a significant expansion of takings jurisprudence when it was decided). Thus, the regulation is not a categorical taking and, California urged, must be considered using the regulatory takings balancing test laid out in <\/span>Penn Central<\/span><\/i><\/a>.<\/span><\/p>\n

At oral argument, Justice Barrett commented that both sides had line-drawing problems, a sentiment shared by her colleagues spanning the Court\u2019s ideological spectrum.\u00a0<\/span><\/p>\n

California\u2019s Solicitor General faced questions from Justices Sotomayor and Kagan about at what point\u2014under California\u2019s theory\u2014an intrusion becomes significant enough that the ad hoc inquiry it championed should be replaced by the categorical inquiry plaintiffs forwarded. Other Justices pressed the point through hypotheticals, including state police training access, public beach access, and the designation of the corner of a private residence\u2019s yard near a high-traffic intersection for occasional protests.\u00a0<\/span><\/p>\n

Many of the questions revolved around line-drawing, with even reliably conservative members of the Court\u2014like Justice Kavanaugh\u2014concerned by the plaintiffs\u2019 extreme position and its ramifications for a wide range of regulations. These questions focused on whether government-mandated access for health and safety inspections would be considered takings under the \u201cexclude unwanted persons\u201d theory. Plaintiffs\u2019 counsel attempted to soften the position by explaining that those reasonable government inspections would not have been considered property rights against which a taking could be affected at common law. Several Justices were quick to seize on this, noting that neither labor organizers nor a number of devices we might imagine that we want to be inspected\u2014like spaceships in the future, Justice Breyer mused\u2014were contemplated at common law. But as Professor Bowie has <\/span>argued<\/span><\/a>, the plaintiffs\u2019 theory would do even more than render commonplace and essential health and safety regulations takings: it would also mean that anti-discrimination public accommodation mandates would be takings such that the government must compensate businesses for abiding by civil rights laws.\u00a0<\/span><\/p>\n

Justice Kavanaugh underscored the extreme nature of the plaintiffs\u2019 claims by offering counsel an off-ramp that was promptly rejected. He asked why the plaintiffs didn\u2019t argue that, under the Supreme Court\u2019s union access right decision in <\/span>Babcock<\/span><\/i><\/a>, the plaintiffs\u2019 property right outweighed the union access right here? Plaintiffs\u2019 counsel answered simply that the question was not properly before the Court, making clear that the goal is to force the Court into a radical reconsideration of property rights and government regulation. But, as Linda Greenhouse and others have <\/span>noted<\/span><\/a>, conservative lawyers are likely to have overreached before the Court\u2019s newly-cemented conservative majority. Instead, the Court may adopt Justice Kavanaugh\u2019s off-ramp as its opinion: find that <\/span>Babcock<\/span><\/i>, though in the context of the National Labor Relations Act (from which agricultural workers like those impacted by California\u2019s regulation are explicitly excluded) should guide the Court in how to balance property rights against union organizing rights. In <\/span>Babcock<\/span><\/i>, the Court found that employers\u2019 property rights would prevail when union organizers had other ways of reaching employees, thus limiting access rights largely to situations where employees lived at remote worksites like logging camps. While such a balancing test would not be the categorical test plaintiffs favor in their quest to expand takings jurisprudence, it would imperil the California regulation and would present a significant blow to union-organizing efforts nationwide.\u00a0<\/span><\/p>\n

A transcript and recording of oral argument can be found <\/span>here<\/span><\/a>.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

The Supreme Court heard oral argument last week in Cedar Point Nursery v. Hassid. The case, brought by two agricultural […]<\/p>\n","protected":false},"author":50,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3],"tags":[],"coauthors":[1671],"class_list":["post-12619","post","type-post","status-publish","format-standard","hentry","category-amicus"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZrWS-3hx","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/12619","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/users\/50"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/comments?post=12619"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/12619\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/media?parent=12619"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/categories?post=12619"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/tags?post=12619"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/coauthors?post=12619"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}