Takings

Supreme Court Decides to Hear Important Takings Case

It will review a Ninth Circuit decision holding that there is no taking when the government forces property owners to grant union organizers temporary access to their property.

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Earlier today, the Supreme Court decided to hear Cedar Point Nursery v. Hassid, an important takings case. In Cedar Point, the US Court of Appeals for the Ninth Circuit ruled that a California law requiring agricultural growers to give union organizers access to their property for three hours per day, 120 days per year, did not create a taking requiring compensation under the Takings Clause of the Fifth Amendment. The state mandated union-organizer access so that the organizers could try to persuade the growers' farmworkers to join their unions.

I wrote about the case in greater detail here. Longstanding Supreme Court precedent holds that a taking occurs anytime the government has imposed a "permanent physical occupation of property." As I pointed out in the earlier post:

The issue here comes down to whether a "permanent physical occupation" occurs only when it is literally continuous, or when the right to occupy continues indefinitely, but does not apply to all hours of the day, all the time. The Supreme Court precedent on this subject—like on a number of other takings issues—is far from a model of clarity, and this is one of the questions on which it is ambiguous. That said, I largely agree with the dissenting Ninth Circuit judges, and with the 1991 Federal Circuit decision they cite above. A permanent right to an easement to enter or occupy an owner's land is a severe infringement on property rights even if applies only to certain hours of the day, and even if the intrusion is not continuous. Moreover, the right to exclude unwanted entrants is a central element of property rights in the Anglo-American legal tradition. So it is hard to argue that a major restriction on it is not a taking of property rights.

In my earlier post, I predicted that this case might well reach the Supreme Court, because it raises major issues about takings that go beyond the facts of the specific case, and because eight Ninth Circuit judges joined a strong opinion dissenting from the Ninth Circuits refusal to rehear the case en banc. If I had to predict, I would say the conservative justices on the Court voted to hear the case because they intend to overrule the Ninth Circuit and opt for a broader definition of what qualifies as a "permanent physical occupation" than the lower court did.

The union organizer context and the ideological division between conservative and liberal Ninth Circuit judges on this case, makes it easy to view this as a left vs. right conflict. But we should resist that frame.

If California prevails here, conservative "red state" governments can easily use the same power for their own ends. For example, they could use it to force abortion clinics to grant access to anti-abortion activists who seek to persuade patients and medical personnel that abortion is murder. They could also force businesses and other organizations that ban guns on their premises to give regular access to gun rights activists.  So long as the pro-lifers and gun rights advocates are "only" given access for a few hours per day, 120 days per year, they would fit within the Ninth Circuit's reasoning that there is no per se taking when state regulations does not require property owners to give outsiders the right to "unpredictably traverse their property 24 hours a day, 365 days a year," but instead merely mandates access for "360 hours a year out of a total 8,760 hours (and only 120 of those hours would be during the workday)." Clever lawyers (and state legislators!) can surely think of other ways to make use of such broad power to compel access to private property.

Even if there is no per se  (automatic) taking, property owners can still potentially challenge such restrictions based on the Penn Central balancing test. But that test is notoriously vague, and courts usually apply it in a way that biases the outcome in favor of the government.

One of the main purposes of constitutional property rights is to protect owners against state-mandated trespasses of all kinds, whether motivated by left-wing ideology or that of the right. Labor unionists, pro-lifers and others have every right to try to persuade people to join their organizations and otherwise promote their causes. But if the government forces private property owners to host them, it thereby takes private property, and should have to pay compensation. That rule both protects property owners, and makes it easier for people of different views to coexist in a highly diverse society like our own.

NOTE: The property owners in this case are represented by the Pacific Legal Foundation, which has issued a statement about the Supreme Court's decision to take the case here. My wife Alison Somin took a position at PLF earlier this year, though she has no involvement in this case. My own involvement in takings issues dates back many years, long before I even met Alison. Nevertheless, I am attaching a disclosure like this one to all posts about cases litigated by PLF, so that no one can claim I am somehow hiding a conflict of interest.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. I’m sure Judge Reinhardt (or any other liberal) could articulate (past tense for Reinhardt) a rule that protects union organizers, but not the deplorables Prof. Somin mentions. Allowing abortion opponents access to abortion facilities would pose an “undue burden” on a Constitutionally protected right, so that rule can be struck down. And allowing gun rights activists access to premises which ban guns would contradict the public safety judgment that the California Legislature has made, so that rule falls too.

    1. past tense for Reinhardt

      Do not misunderestimate Judge Reinhardt. He’s already managed to phone in an opinion from beyond the grave. And I’m sure he did his civic duty and voted.

  2. I always think of Coasean bargains, as I think they are called, for cases like this: how much would the union organizers be willing to pay for this access? How much would the nursery demand to give the union organizers this access?

    I can guess the numbers would be quite different without the government tipping the scales.

    1. There are two costs here. One is the actual cost of occupying the property. The other is the cost of unionization or the added risk of unionization.

      The company will price a bargain at the sum of both costs … however, for a Coasian bargain to work, the company should charge at the price of the occupation itself. Hence you cant simply resolve the problem like that.

      The problem is that its not just about the occupation of the property, there are other goals here that would not be priced efficiently.

      1. My understanding of Coasean bargains was simply that the people involved should negotiate. There are two here: property owner and prospective tenant. Ideological considerations have nothing to do with the basic process, and politicians have nothing to do with the negotiations. It is a strictly owner-tenant negotiation.

        1. I mean, they can negotiate, but the negotiation will go nowhere. The union would be willing to only pay for the costs actually inflicted, and the company would only be willing to accept payment for costs imposed AND unionization.

          You can think of the threat of unionization as a transaction cost. And with such a cost,, Coase arguments fail. If all unions had to pay the cost of unionization, there is zero point to it. Thats the main issue here.

          Its not even a liberal v conservative thing, I personally am fairly anti-union in my beliefs on economics … but one can see that no union can agree to pay the costs of unionization because the whole point is to extract rents from the use of labor. Which is why governments grant a “right” to unionize.

          For example, a union may demand an additional 10,000 in wages. Under a bargain, the company will demand 10,000 for that cost. That cannot be agreed to, because everyone ends up where they started, and there was no point.

          1. Things being zero sum is the nature of rents.

            1. Not exactly.

              We’re not talking, mostly, about an economic use here. The company isn’t in the business of renting out its space.

              Sure, having the organizers there is a bit of a hassle, but what the company mainly wants to stop is the workers joining the union. That’s what it perceives, I suspect, as the main cost to it.

              That seems to complicate matters.

              1. Well the company might *mainly* want to stop unionization efforts in this narrow situation, in another analogous situation it might *mainly* want to avoid appearing political when the same sort of law lets Trump supporters campaign on the property at 6AM Tuesday and Thursdays, and then the other law that lets vegans pamphlets and distribute anti-farm materials on Sundays.

                By narrowly construing the problem you make it seem more complicated than it is.

      2. “however, for a Coasian bargain to work, the company should charge at the price of the occupation itself. ”

        That’s the problem with most “Coasian bargains”: You demonstrate that taking the land from the farmer and giving it to the developer produces enough excess value to leave them both ahead in the game. But the developer gets to keep all the excess value!

        Most Coasian ‘bargains’ seem to work that way in practice. The excess value never gets distributed.

        The free market “transaction doesn’t take place unless both sides agree to it” rule ensures that distribution actually happens.

        1. No. That’s not at all what Coasian bargaining is about.

          I presume the situation you are discussing is an eminent domain taking of the farmer’s land for development purposes. I agree with you that this shouldn’t happen. Let the developer buy the land at a price he negotiates with the farmer. That way the farmer gets some of the benefit.

          But that has nothing to do with Coase.

          1. You’re talking about the actual theory of Coasian bargaining. I’m talking about what’s going on above: The use of ‘Coasian bargaining’ as a rhetorical device in arguments, frequently used to justify depriving people of their pre-existing property rights.

            In this case the property rights are well defined: The property owner has a legal right to exclude the union reps. Real Coasian bargaining can proceed. HAS proceeded, and the farmer decided to exercise his right to exclude the union reps.

            Once the government stuck its nose in, Coasian bargaining became irrelevant except as a pretext for violating property rights.

  3. I hope this takings argument does not succeed. For one thing, the amount of compensation would not be ascertainable and it might even be a negative number. (Actuaries could easily calculate that a kicking out union organizers invites boycotts, decreasing the property’s value.) For another, the Takings Clause would be serving the function Pinkerton thugs served a century ago.
    https://www.youtube.com/watch?v=DGGpaIEV19c

    The analogies you put forth are not apt. Union organizers are not (like anti-abortion activists) entering the place to close it down. They are not (like gun rights people) entering to proselytize about an issue that has nothing to do with the activity being held.

    1. That’s a pretty typical proggies response. You don’t like the consequences, gosh that would punish someone for doing what you think is right, heck no, don’t rule in favor of the individual.

      1. The guy has arguments, you don’t need to create different ones for him.

        1. He’s got arguments, sure, but they strike me ask kind of, “Nice place you’ve got here. Be a pity if it had a fire.” arguments. “Actuaries could easily calculate that a kicking out union organizers invites boycotts, decreasing the property’s value.”

          But, easy way to find out: Don’t force the company to let them in, and see if the boycotts and so forth eventuate.

          1. Aladdin’s Carpet engaged. You’re just casting aspersions and don’t appear to understand how actuary works.

            1. I understand enough to know that a legit actuary wouldn’t touch that case: No data to base calculations on.

    2. I think the analogy was more, a law saying all businesses must allow people to concealed carry in them. That is not “entering to proselytize about an issue that has nothing to do with the activity being held,” far from it.

      In the case of Pinkerton thugs and of the fights that broke out in the 20s and 30s, that was slightly different … union occupation was illegal, and the response was heavy handed and horrific. The legality of everything was irrelevant because no one was actually following the law. And a person cannot initiate a “taking.” We are discussing the government granting a right of access, is that a taking?

    3. “invites boycotts”

      Illegal under the NLRA.

      1. No they’re not.

        You’re thinking of so-called “secondary boycotts”, which is not what we’re talkin about.

    4. If the compensation were a negative number, that would mean that it would benefit the owner to allow the union reps on the premises voluntarily, even offering to pay for the privilege.

      Which raises the question – why is a law requiring owners to grant access necessary ?

      This sounds like one of those Marxian false consciousness things – the owners do not understand their own interests. Nor, apparently, do the unions, for they are failing to charge for this valuable service.

      1. I suspect the end result of these cases will be like IOLTA- yes it’s a taking, no, there’s no compensation due.

  4. Honestly, I kinda understand the reasoning behind this sort of legislation … the idea is to allow unions to organize. The farm is going to create artificial barriers to unionization. So long as they are not interfering with the process and production of the farm, and are strictly just talking to farmers, it should be fine, except … the organizers can’t talk to the farmers after hours? Or when they leave for lunch? Or just send them an email with a given time and place? One can just apply heightened scrutiny and it fails without having to apply strict scrutiny.

    I do wonder what the precedent is regarding easements and the takings clause. Or just easements in general, the court doesn’t do a lot of stuff outside constitutional law but easements seem to be the core issue here. It also seems to be a fairly easy question from an originalist perspective.

    Does the original public meaning of the takings clause apply to easements? Then extend that to does it apply here, a grant of limited access to a particular property for the purpose of union organization. I dont know if the second one can be answered purely originally, but the first can.

    A related question: If it does apply to easements, what if the easements was necessary decades ago but is no longer necessary due to advances in technology? Does that alter whether it is a taking?

    1. “… the organizers can’t talk to the farmers after hours? Or when they leave for lunch? Or just send them an email with a given time and place? ”

      That’s all harder to do. It’s so much easier to get people to listen to union talk, and pressure them into joining a union when they literally have to be at the location for their job.

      If you sent an e-mail, or tried to get them when they left for lunch, the workers might just…not respond. Or leave. But they can’t do that when they’re at the actual job.

    2. the organizers can’t talk to the farmers after hours? Or when they leave for lunch? Or just send them an email with a given time and place? One can just apply heightened scrutiny and it fails without having to apply strict scrutiny.

      Do all agricultural workers have email? Isn’t it likely they eat lunch on site?

      From the Ninth Circuit opinion:

      The current version of the Access Regulation … gives union organizers a permanent right to access “the premises of an agricultural employer for the purposes of meeting and talking with employees and soliciting their support.” … Union organizers may enter the private property for one hour before the start of work, one hour after the completion of work, and one hour during the lunch break, for 120 days during the calendar year.

      Bolding added.

      Under the regulation, two organizers may enter the owner’s property for every 15 employees….The Access Regulation prevents the employer from interfering with the organizers’ full access to the property, … and prohibits the union organizers only from injuring crops or machinery, interfering with the employees when they are boarding buses, and similar disruptive behaviors,

      So this is somewhat less intrusive than Ilya makes it sound. His analogies to abortion protestors and gun rights activists don’t really work.

      Also, I don’t fully buy the “three hours per day, 120 days per year,” as a complete description. The purpose is to let the union try to organize the workers. Suppose they succeed. Then when do they need to come back? Suppose they fail – the workers reject the union. How soon do they get to try again?

      That’s not to say I totally disagree with the OP, but I would like to see more facts about these issues, as well as how easy it is to contact the workers at other times.

      1. There is more to it than how easy it is to contact the workers at other times.

        First, of course, if the union doesn’t already have organizers in the work force, it may be clueless about who the workers are, where they live, any contact information at all. If union organizers do not have a right of access, workers who know what’s good for them can be counted on to flee union organizers any time workers suspect an employer might see them converse.

        Second, the requirement of access puts unionism on a more equal footing with employers where it comes to organizing. Not equal, but closer to equal. The employers have unlimited access to the workers at the place of employment. Employers can be counted on to take advantage of that access to try to intimidate workers, to malign the union, and to say or imply that the employers enjoy unlimited power to retaliate against anyone who participates in union activity.

        That is a very heavy thumb on the scale against labor organizing. To counter that, giving union organizers access creates a visible demonstration that there is law protective of labor organizing, and that employers are not all-powerful. Getting rid of that demonstration, of course, is what this attack on unionism is about. The issue is pure hostility to organized labor.

        It is not forthright to try to couch anti-union attacks as resistance to uncompensated takings. Nobody—except maybe Somin, bless his libertarian heart—thinks this case is founded in any motivation but hostility to organized labor, pure and simple.

        1. Why should the union be on an equal footing? The employer actually has a relationship with the employees. The union merely wants one.

          Well, I doubt the employer had some right to have intrude on the lives of potential employees for three hours 120 days a week to harangue them into taking the job. Yet, somehow they ended up working for the employer. Let the union labor under the same disadvantage in finding them.

          1. No, you would have a trespass claim.

          2. Brett, your arguments—like all arguments against labor organizing—come down to an assertion that labor organizing is bad, and somehow, the Constitution ought to provide a means to rule out labor organizing. I can’t think of any principled way to reach that conclusion. Can you help me out?

            1. 1. Leaving aside anti-trust considerations, “labor organising” if conducted on a voluntary basis, and without special legal privileges, is simply the market a work. If workers don’t want to sign up individually, but only through a union, then employers are going to have to lump it. Or hunt for other employees.

              2. But in any business relationship where a supplier has established a strong bargaining position, amounting to a temporary monopoly, it will be in the interests of the customer (in this case the business requiring labor) to try to break the monopoly as quicjkly as possible, so as to get cheaper competitively priced supplies. So unless “labor organising” really does benefit the employer, which is doubtful to the point of absurdity, it is inherently unstable as is any other kind of monopoly, even when cemented in with powerful laws.

              3. And even if the law successfully binds the employer forever, it can’t stop nimbler employers unencumbered by the union monopoly from outcompeting the old dinosaur. See Detroit.

              4. The bad thing about “labor organising” in practice is if it is done by force – either by the force of law, or by the force of heavy sticks and broken windows.

              5. “somehow, the Constitution ought to provide a means to rule out labor organizing”

              The Constitution requires “just compensation” for Takings. There’s no exception for takings pursuant to government efforts to assist Type 4 labor organising.

            2. Who said anything about ruling it out? I just wouldn’t give them special privileges, like intruding onto private property to do it.

              Like I said: The employer found the employees without any government sanctioned right to trespass. The union can, too.

          3. I doubt the employer had some right to have intrude on the lives of potential employees for three hours 120 days a week to harangue them into taking the job.

            But now the employer has the right to harangue them about the evils of the union with no response?

            1. Well, yes. Or kinda. The employee agreed voluntarily to enter into an employment contract with the employer. If the normal terms of the employment are to be subjected to a bit of anti union haranguing, then that’s part of the deal. Obviously, there are limits to what an employer can claim are reasonable demands of its employees, but plainly a bit of haranguing is not beyond them, since the State legislature is quite happy to impose haranguing, if it’s the pro-union variety.

              So on the one hand we have haranguing voluntarily submitted to, and on the other hand we have a third party demanding rights to harangue, absent any volunteering by either employer or employee.

              As Brett says, there’s nothing to prevent employees meeting with union reps on union premises, and it would be strange (and unjust) if the legislature demanded that the union allow employers to trespass on its premises so as to harangue employees on the evil of unions.

              That said, i admit that I am somewhat heretical on the question of free speech. I’m very much in favor of free speech, but also in favor of free listening. Thus I don’t believe the government has any business insisting that unwilling listeners must listen.

              Obviously, depending on the context, unwilling listeners may have to suffer hearing what they wish to avoid hearing, if speakers are to be free to speak. So if you live on a street which is popular for demos, you may have to put up with some chanting from time to time.

              But if you’re on private property, there’s no reason why someone you haven’t invited should be entitled to turn up and start haranguing either you, or other people who you have invited. It would be like being forced to let Lathrop attend your dinner parties.

            2. The New York Times doesn’t have to give you a few hours use of their presses to print rebuttals either.

              Outrageous isn’t it?

      2. “Suppose they fail”

        Then they come back and try again. And again. And again.

        If you blast a bullhorn in people’s ear’s enough times, some will give in just to get the bullhorn to stop.

    3. That’s a very easy property law question (I am a real estate lawyer). Yes, the government certainly has to pay when it condemns an easement, the same as if it condemned a fee interest.

      1. And how should the value be calculated?

        1. I suppose the usual, utterly fictional counterfactual: “How much would the employer and the union have arrived at for a price, if it weren’t for the fact that they didn’t actually come to an agreement?”

          Eminent domain payments are always dubious in that regard.

        2. And how should the value be calculated?

          In theory, by estimating the market of the property unencumbered by the easement, and comparing it with the market value of the property duly encumbered.

          In practice by looking at the effect on value of other easements encumbering other properties.

        3. Expert testimony about what a willing buyer and willing seller would agree to (and why, conclusory statements being of little evidentiary value).

          1. Yeah, calling conclusory statements “expert testimony” doesn’t actually get you anywhere. The fact is, the actual seller isn’t willing, which means that the expert’s hypothetical willing seller has placed a different valuation on the property.

    4. “The farm is going to create artificial barriers to unionization.”

      Property rights, the right of a land owner to exclude people from his property, are treated here as “artificial barriers”?

      I suppose the same way my right to not open my front door is an artificial barrier to door to door salesmen?

  5. I don’t see how there is a taking in anything but a de minimis amount. The union organizers are not depriving the property owners of the use of their property in any meaningful way.

    Government inspectors and other officials are often allowed to show up unannounced and demand access. Nobody thinks of that as a taking.

    I think the correct analysis would be under 1st Amendment Freedom of Association principles.

    1. The property owners beg to differ, as shown by their legal claims to stop mandated union access.

      1. That is because they don’t like having union organizers on their property, but that has nothing to do with whether their property is being Taken within the meaning of the 5th Amdt.

        1. It might be a taking. But the thing is, the just compensation could be zero. If it isn’t doing anything to the value of their property, they can’t recover. There’s no provision of the takings clause for getting damages because the organizers convince your workers to collectively bargain and force up their wages.

          1. Perhaps the employer finds that employees who rest on their lunch break rather than spend energy dodging union organizers and/or have to listen to their speechifying are more productive after work.

            If I come into your living room, against your wishes, and play loud music three hours a night on a random 120 days each year so you can’t sleep and perform poorly at work, your property isn’t harmed in any way either. Would a government mandate that allowed me to do that be a “taking” justifying compensation?

            1. If I come into your living room, against your wishes, and play loud music three hours a night on a random 120 days each year so you can’t sleep and perform poorly at work, your property isn’t harmed in any way either.

              I beg to differ. Obviously the fabric of your property is not harmed, but the value of it is.

              Suppose you are buying a house, and you are willing to pay the asking price of $500,000. But you discover there’s a license the previous owner has granted, whereby the local branch of the Church of the Latter Day Saints is entitled to use the living room of the house on up to 120 days a year, for one hour at a time, and for three times on each of the 120 days. Between 9am and 9pm.

              The license stipulates that they are permitted to use the space only for training those young folk who go round trying to convert unbelievers. No more than six people at a time, no damage to furniture etc, no loud singing etc. And they may not come during televised NFL games.

              How much are you willing to pay for the house now ?

              Well, for many people, zero. But there will probably be a clump of folk who wouldn’t mind it too much. $450,000 ? $400,000 ?
              And there’ll be those sharp folk who reckon they might buy for $400,000 and then buy off the Mormons for $50,000.

              But the license certainly takes a bite out of the value of the property.

              1. Apples and Oranges — there is a qualitative difference between granting a third party exclusive use of a room in a physical dwelling, and granting a third part the right to be physically present outside in a large commercial farm. In one case, you are deprived of the use of your property, and in the other you are not in any material way

                True, in the farm situation there may be a de minimis taking, but it is comparable to (or in many cases even less than) the situation where the FAA routes planes over your property.

                1. Your headline is apples and oranges, but your analysis is large apples and small apples – “not in any material way” , “a de minimis taking”

                  The question is the size of the apple, on which there is little evidence. But not none :

                  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2755613

                  The actual value of the right to exclude remains unknown.
                  In this Article, we set out to fill this void by measuring, for the first time, the value of the right to exclude. To that end, we use the passage of the Countryside and Rights of Way Act in England and Wales in 2000 as a natural experiment to provide some empirical insight on this issue. We show that the Act’s passage led to statistically significant and substantively large declines in property values in areas of England and Wales that were more intensively affected by the Act relative to areas where less land was designated for increased access.

                  1. I suppose you could do the same sort of research here in the US, after that ghastly “rails to trails” act, which voided contracts and state laws requiring rail easements to revert if not used for rail.

                    Suddenly a bunch of land owners ended up with strangers hiking through their back yards, as rail easements got converted to public hiking trails. The situation seems similar enough.

    2. Government inspectors don’t show up for 3 hours a day, 120 days a year.

      Or if they do, you have a much, much bigger problem than a “takings” issue….

      1. In some companies they are there all day every day.

        1. And does their presence adversely affect the company’s bottom line?

    3. “I don’t see how there is a taking in anything but a de minimis amount. The union organizers are not depriving the property owners of the use of their property in any meaningful way.”

      Imagine, your workers are happily trimming strawberry plants in the farm.

      Then every Monday and Wednesday, for 3 hours a day, union organizers storm the farm, intimidating the workers, yelling on bull horns how they should organize and unionize, and if they don’t they’re “bad” people.. Every Monday, every Wednesday, 3 hours a day of bullhorns blaring….

      Worker efficiencies drop under those conditions. That’s a real taking.

      1. That is a very legitimate concern, but I have to assume there are other avenues to address it. If there are not, there should be. Trying to contort it into a takings claim, however, doesn’t make much sense.

        Plus, the remedy for a taking is just monetary compensation from the gummint. You still have the organizers on site.

        1. Hard to see how this is anything other than a court case if the union is claiming a legal right to trespass and “pressure”

      2. every Monday and Wednesday, for 3 hours a day, union organizers storm the farm, intimidating the workers, yelling on bull horns how they should organize and unionize, and if they don’t they’re “bad” people.. Every Monday, every Wednesday, 3 hours a day of bullhorns blaring….

        The regulation specifically says, before work, after work, or during lunch, and prohibits disruptive activities.

        1. From the court case

          “The companies abruptly became aware that union organizers claimed a right to trespass on their property in the summer of 2015. According to Cedar Point, early one morning near the end of the strawberry harvesting season, union organizers entered Cedar Point’s property and trespassed across it to the trim sheds, where hundreds of employees were preparing strawberry plants. The union organizers disrupted work by moving through the trim sheds with bullhorns, distracting and intimidating the workers. ”

          Now what?

          1. I don’t know. Do whatever is appropriate when the organizers violate the restrictions.

            1. Sue them until they stop or go bankrupt….

        2. The regulation specifically says, before work, after work, or during lunch, and prohibits disruptive activities.

          I’ve not looked it up, but wonder what the details of this regulation are.

          Suppose a farmer simply schedules workers on multiple “sliding” shifts around the property, with the first and last shift each having a few loyal and well paid workers/managers who ignore the union organizers and perhaps insult them and makes it a point to use obnoxious chemicals in their presence. There is no “lunch hour” as about half to one-third of the workers are always working during the day. During the hour before the first shift starts and the hour after the last shift ends the union organizers could only have access to these loyal free-market workers who ignore them and make life uncomfortable for them (“Sorry, you’re disrupting my work – you’ll have to stand over there down wind of my manure spreader or be removed from the property for disrupting work.”).

          I wonder if that would ameliorate the situation.

          Also, surely there is no rule that workers have to be on site before and after work (as they would have to be paid for that time and, hence, would be “working”) – just bus them to/from their job site just before their shift start/ends.

          1. Dang – no preview – missing an ending “block quote” tag at end of first quote…

        3. Fine. Treat it like an easement. If they exceed the scope of it, it destroys the easement. Permanently.

          1. Unfortunately it’s a statutory right not an easement. However, for the purpose of valuing the taking, your point indicates that it should be valued more highly than a comparable easement, because abuse does not destroy it.

      3. union organizers storm the farm

        If you need to add this much melodrama, maybe your argument doesn’t hold a lot of water.

        1. Except for the facts, as stated above, that the melodrama actually happened.

    4. I bet that if I proposed that I have a right to enter your property for a few hours a day, at a time when the government judged it not too inconvenient for you, you would complain some.

    5. Government inspectors and other officials are often allowed to show up unannounced and demand access.

      “Government” inspectors (even if they are private parties contracted by, and under the thumb of, the government) are subject to government oversight – ultimately by elected officials directly or indirectly. Union organizers don’t answer to the government elected by the people. That’s quite a difference.As well, government inspectors (generally) have a life/safety/environmental goal to protect the life/safety of consumers of the products produced (such as medications), the life/safety of the workers (such as fall hazards), and the life/safety of future generations and/or non-consumers of the product or process (such as toxic waste or emissions). Union organizers are engaging in what boils down to political advocacy and are more like a evangelist who shows up at your front door.Government inspectors also work from (somewhat) defined objective criteria which is publicly available and reviewable and which can be changed by a well defined legislative process. Union organizers don’t.Government inspectors generally have no choice but to engage in their inspections in the workplace – that’s where the processes, environment, and materials that they are inspecting are — they can’t do such inspections “off-site”. Union organizers, on the other hand, can and doing it in the workplace is just a convenience and cost savings to them. Union organizers, for example, can put up billboards (where still allowed) on all public access roads to farms or drive around with “billboard” trucks with their messages on them in the vicinity of a farm.Comparisons of “government inspectors” to “union organizers” is rather like comparing oranges to bowling balls (apples and oranges are more similar – both are about the same size, both are edible, both provide surgery nutrition, both are perishable, and both serve much the same role in society and are the the same tier of the now defunct “food pyramid”).

      1. Dang lack of preview (BR tags don’t seem to be recognized) – let’s try again:

        Government inspectors and other officials are often allowed to show up unannounced and demand access.

        “Government” inspectors (even if they are private parties contracted by, and under the thumb of, the government) are subject to government oversight – ultimately by elected officials directly or indirectly. Union organizers don’t answer to the government elected by the people. That’s quite a difference.

        As well, government inspectors (generally) have a life/safety/environmental goal to protect the life/safety of consumers of the products produced (such as medications), the life/safety of the workers (such as fall hazards), and the life/safety of future generations and/or non-consumers of the product or process (such as toxic waste or emissions). Union organizers are engaging in what boils down to political advocacy and are more like a evangelist who shows up at your front door.

        Government inspectors also work from (somewhat) defined objective criteria which is publicly available and reviewable and which can be changed by a well defined legislative process. Union organizers don’t.

        Government inspectors generally have no choice but to engage in their inspections in the workplace – that’s where the processes, environment, and materials that they are inspecting are — they can’t do such inspections “off-site”. Union organizers, on the other hand, can and doing it in the workplace is just a convenience and cost savings to them. Union organizers, for example, can put up billboards (where still allowed) on all public access roads to farms or drive around with “billboard” trucks with their messages on them in the vicinity of a farm.

        Comparisons of “government inspectors” to “union organizers” is rather like comparing oranges to bowling balls (apples and oranges are more similar – both are about the same size, both are edible, both provide surgery nutrition, both are perishable, and both serve much the same role in society and are the the same tier of the now defunct “food pyramid”).

    6. “are not depriving the property owners of the use of their property in any meaningful way.”

      Property Law 101 – property includes the right to exclusive use, meaning you don’t have to let anybody else use it if you don’t want them to. That property right is being taken away and it’s far more than de minimus.

      1. He thinks it’s de minimus because he thinks the use is good, and so *he* wouldn’t object to the use if in the owner’s place.

  6. Wow, I wonder how our totally neutral and not at all ideologically-motivated Supreme Court is going to apply the “rule of law” on this one.

    1. The very same way as the “totally neutral and not at all ideologically-motivated” Ninth Circuit.

  7. Why isn’t the California law pre-empted under the NLRA?

  8. The property owners are being forced to provide a venue for speech without compensation. If I were to go to the local stadium and demand to speak I would be told there is a rental charge for the space. If the government said the venue must let me use their property for my ends and not theirs for 3 hours a day, 120 days a year without rents being paid… how is that arguably OK? Even if my speech was considered civically valuable, like promoting voting or overpaying your taxes or some such… I am still applying a cost on the property owners. I suppose… now that I think about it… SCOTUS could do some Kelo judo and screw the farm owners that way.

  9. Yeah right courts will apply the standard equally. In what universe are liberal standards held to the same when the counterfactual is presented? Not this one.

    A court will say nurturing union organizer is a “compelling interest” or some other BS to distinguish that over other types of expressive activities. They will just play with semantics to say “hey look it is different…”

    1. Jimmy, the notion that labor law is different, and needs to be interpreted as labor law—and not as a manifestation of other unrelated legal doctrines—may actually be an established and long-standing principle of law. Of course, to the extent that was once a commonplace understanding, decades of furious attacks calculated to tear it down have taken a toll.

      1. Its been rolled back because there is no principled reason for its elevated status.

      2. I am unaware of any constitutional provision that gives “labor law” a special status. Please enlighten me as to which enumerated right grants it this special place?

        1. Jimmy, the Congress granted it that special place, with the approval of various Presidents, and support from not only labor organizations, but also from many business interests. Congress acted not under any theory of right, but under the powers applicable from the Commerce Clause, and the Necessary and Proper Clause.

          1. Which is to say that, constitutionally, it has no higher status than any other statutory law.

  10. Sorry, Ilya, youse are really reaching this time. If the abortion providers only had the taking clause protecting them, they would have been closed down all across the south, today, without any Supreme Court ruling, a state legislature could authorize anti abortion protester entering abortion clinics and easily also authorize payment of any economic burden. It is not the taking clause that prevents this….

  11. Could the government in conservative states pass a law than mandated access to employer premises at unionized worksites to right to work and other anti-union activists, maybe also access to union halls and offices?

  12. Gee, I wonder how that one will turn out…

    But seriously, yet another example of the takings clause being invoked miles away form its original meaning to strike down regulations conservatives don’t like. (Sorry, redundant, “regulations”.)

    1. The government granting an effective perpetual easement to private organizations or individuals for complete access to private property for expressive activity that the owner disagrees with is “miles away from the original meanings of takings”? Really?

      Maybe SCOTUS needs to find some “penumbras” and “emanations” to the Fifth Amendment to deal with the California legislation?

    2. No, that’s pretty close to the original meaning, at least if you think the 14th Amendment does extend BOR protections against the states.

    3. Assuming you’re right and this is “…yet another example of the takings clause being invoked miles away form its original meaning…” how is it any different than what has been done to the Commerce Clause?

  13. Again, it seems so obvious that this is a taking …

  14. As a matter of property law, this is an obvious taking. Day one of Property Law is the discussion of property and the “bundle of sticks” that make up the property. The state is taking a portion of one of the sticks within the bundle without any compensation. The Peoples Republic of California made the value judgment that unionization is a greater value and right than anything associated with mere property rights. The party members know best and that property is only of value to the state for taxing and regulation. Individuals’ rights and uses of property are subservient to the desires of the state.

    1. I mean, the State of CA has every right as a sovereign government to make that judgment. The 5A does not prohibit takings, it mandates just compensation for that taking.

      CA has made their judgment about relative values, now they have to pay for that, same as always.

      1. Arguably, no, because this is not a taking for a public use, but a private use with an ostensibly public PURPOSE. If it were for public use, then anybody would be allowed to come on the premises for 3 hours, 120 days a year, to spread their message.

        1. Sadly, I think that horrific switcheroo from Kelo is still binding: Public “good” counts as public “use”, even if the actual use is private.

          1. Much as one disagrees with the fact of the Kelo taking, it’s not obvious to me that it was a bad thing that the Kelo decided that it was a taking for public use.

            For it is only taking for pubic use that seem to require “just compensation” under 5A.

            What, in the Constituton, prevents the government taking private proprerty for private use, beyond the 5A requirement for “due process of law” ?

            1. Yes, I’ve seen that sort of reasoning before: “The constitution stays warrants can’t issue without probable cause. But it doesn’t say we have to have a warrant, so if we want to do searches without probable cause we just skip getting the warrant.

              From the very beginning, it was understood that takings for public use required just compensation, and takings for private use were just flat out impermissible as a violation of property rights.

              1. Yeah, but the warrant thing is preceded by :

                “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….”

  15. It seems to me that letting non authorized persons onto your property where there is heavy equipment operation (like a farm or construction site) sets the property owner up for added risk and insurance costs. That alone ought to be reason enough to prohibit access. If I had to accept that accident risk imposed by the government, then would that not be takings?

    1. Exactly the point I was going to make. If the farm has injury liability then they should be able to exclude whoever they want

  16. This is not a “takings case”, this is about union busting clear as day. Now, SCOTUS will, of course, rule for the business because the 6 are just anti-union. The dishonesty of this case makes me sad.

    1. Unions can do anything they want, on their own time and on their own land. There’s no busting involved.

      In fact, the busting that has consistently been involved is the heads of anyone who doesn’t want to join a labor union or contract with one.

    2. No, this is about taking a law that puts a massive thumb on the scale of unions and returning to something closer to neutral. That’s not union busting.

      1. Molly likes unions, therefore any attempt to get them to follow the rules is cheating

  17. So, to understand why this is a clear taking, imagine the following situation.

    San Francisco sees a need for there to be bathrooms available for its homeless residents. But, it doesn’t want to open up new public bathrooms. Instead, it passes the following law.

    From 7 AM to 8 AM and 2 PM to 3 PM on Mondays, Wednesdays, and Fridays, residents on the south side of Sacramento Street are required to allow all comers to utilize their private bathroom facilities. Failure to allow use will be punished by a fine of $1,000 for each infraction.

    Would that be considered a public taking? Would that interfere with the private residents use of their property?

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