Property Rights

Supreme Court Hears Oral Argument in Major Takings Case—Property Owners Seem Likely to Prevail

The Court seems likely to rule in favor of property rights in Cedar Point Nursery v. Hassid.

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Earlier today, the Supreme Court heard oral argument in Cedar Point Nursery v. Hassid, an important takings case. I discussed the issues at stake in the case here and here:

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 per se 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….

Longstanding Supreme Court precedent holds that a taking occurs anytime the government has imposed a "permanent physical occupation of property…."

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….

For reasons discussed in my earlier posts linked above, the case has implications that go far beyond the union-organizer context. If California prevails, states would have broad power to authorize extensive uncompensated physical invasions of private property—a power that conservative red states could easily abuse, no less than blue states can.

Fortunately, it looks like a majority of the justices are likely to vote against the state in this case. During the oral argument, several justices pointed out that, under the approach advocated by the lower court decision and by the state of California, any access requirement that lasts less than 365 days per year or does not cover all daylight hours would not be a per se taking. And that's true regardless of the purpose of the government policy, and regardless of the amount of disruption caused. As a general rule, whether a regulation qualifies as a per se taking doesn't depend on the importance of the government interest at stake, and the amount of harm caused to the owner is relevant mainly for determining how much compensation she is owned if there was a taking, not the question of whether there was a taking in the first place.

Justice Clarence Thomas pointed out that California's position would allow the state to mandate regular access to private property for police or National Guard units that wanted to use it to hold training exercises. Justice Amy Coney Barrett asked the following insightful question:

Let's imagine that [my house is] situated on the corner of two busy streets and a city decides that it would be beneficial to allow people to protest on my lawn because it's so highly visible to the traffic that's passing by.

But exactly like this one, you know, it says you can do it 120 days a year and three hours at a time just during rush hour. I take it, under your theory, that's not a per se taking, that would be subject to Penn Central.

In response, California Solicitor General Michael Mongan admitted that it would not be a per se taking, and that the complicated Penn Central balancing test would apply instead. He claimed it would be a "powerful" Penn Central case. But, as Justice Barrett pointed out, "Penn Central is deliberately designed to be very permissive towards regulations, given the pervasiveness of regulations on property use in modern life. And so it's stacked in favor of regulations."

Historically, property owners rarely win under Penn Central, and the complex balancing test developed under that case is also notoriously vague and uncertain.

Even the three liberal justices—who are generally less sympathetic to property rights claims than the conservatives—were highly critical of Mongan for failing to provide a clear standard for when recurring, but not literally continuous, physical invasions of property qualify as takings. Sonia Sotomayor, the justice least supportive of takings claims, emphasized that "we need something that gives clear guidance," and was reluctant to relegate the case to the Penn Central test, because that test "fails to capture the significant interests in the right to exclude at stake in physical invasion cases." She suggested the case might be better analyzed under the approach the Supreme Court adopted in Arkansas Game and Fish Commission v. United States, where the Court ruled that recurring, but not continuous, flooding of property by the government qualifies as a taking. If recurrent physical invasion by union organizers is analogous to recurring flooding, California probably loses this case. At the very least, it's notable that Sotomayor rejects  California's position that Penn Central applies. If it does not, it's hard to avoid the conclusion that there is a per se taking here.

I am far from certain that Sotomayor and the other liberals will ultimately vote for the property owners in this case. I think they could still go either way. But if you have a takings case where Justice Sotomayor's vote is in play, and there is a real chance she might vote for the property owners, that's very bad news for the government.

While the property owners overall did better during the oral argument,  their counsel, Joshua Thompson of the Pacific Legal Foundation, did face some tough questions of his own. The biggest problem for him, raised by a number of justices, was the possibility that, if Cedar Point wins, recurring government health and safety inspections of businesses would also qualify as takings.

Thompson tried to address this issue by arguing that, under the common law, property owners have no right to exclude "reasonable" government inspections and searches. This is not entirely clear, and it's also not clear exactly what qualifies as a reasonable search in this context (it might not be the same thing as a reasonable search under the Fourth Amendment). A better answer is that inspections meant to protect health and safety fall within the police power, and such uses of the police power are not generally considered takings under the original meaning of the Takings Clause, and subsequent precedent. By contrast, a general right of union organizers to enter property does not come within the police power exception. And the same goes for other types of recurring government-mandated intrusions that are not health and safety measures, such as Justice Thomas' example of mandated access for police and National Guard training.

A number of other interesting issues came up in the oral argument. I may write about them later, if time allows. But, for the moment, the key takeaway from this oral argument is that the property owners are likely to win. What is less clear is exactly what rule the Court will adopt for these types of cases, particularly on the question of how to differentiate the California union-access law from health and safety inspections. There are a number of different ways to do that. I noted two above, and there may well be others.

NOTE: The property owners in this case are represented by the Pacific Legal Foundation. My wife Alison Somin works for PLF. But she has no involvement in this case.

UPDATE: I address some additional issues raised in the oral argument here.

NEXT: Academic Freedom Alliance Statement on the University of San Diego Law School / China Controversy

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  1. Once this court grants cert on a case involving unions, I don’t think anyone will be under any illusions about how they will rule. The only question is whether the unions lose in a blowout or whether they can manage a small loss.

    1. Unions should stop doing unconstitutional things and this trend would reverse.

      1. Obviously the solution here is to deputize the union organizers as health and safety inspectors, with authority not only to organize, but issue citations.

        I know at least the Ninth Circuit would be ok with that, so that gives them another 2-3 years access while that is appealed.

      2. “Unions should stop doing unconstitutional things”

        The Constitution defines the relationships between the parts of the government. Unions aren’t part of the government, so talking about them being “unconstitutional” is just a combination of silliness and demonstrating that you don’t understand what “unconstitutional” means.

        1. Well maybe I could have put a /sarc tag, but I would also remind you of contracted police forces and private prisons, that do deputize private persons with government powers.

          1. Remind away. But don’t forget to link in your original thesis somehow. In the meantime, my previous criticism remains accurate.

  2. I don’t know, the liberal justices, expecially Breyer, got fairly annoyed at Cedar Point for invoking a common law standard and calling for a bright expansive rule when they could just win by saying, this supreme court case is a balancing test, and because the unions have alternative means of reaching workers, we win.

    Sotomayor literally said Cedar Point would probably win if they did that, but instead they decided to claim that these actions are always an easement. Even Alito and Kavanagh echoed some of those concerns.

    I think a narrow pragmatic ruling would probably be 9-0, but Cedar Point clearly wanted an originalist expansive ruling, and that would be 6-3, and I don’t see 6 justices willing to narrow to make it unanimous. Or maybe they are willing to. Idk.

  3. “Justice Clarence Thomas pointed out that California’s position would allow the state to mandate regular access to private property for police or National Guard units that wanted to use it to hold training exercises.”

    I was thinking of something far more likely — while the land belongs to the landowner, the game animals on it (e.g. deer) belong to the state — and this ruling would precluding the posting of land.

    In other words, this principle would mean that the state could permit licensed hunters to come onto your land and shoot deer in front of your children. While I am a hunter, this would be unacceptable — and if *I* feel that way, imagine how the PETA folks would feel.

    No as to the health & safety inspections, the vast majority of them can be mandated as a condition of licensure. And don’t forget _Camara v. Municipal Court_ where SCOTUS has already mandated warrants for housing code inspections — and that was in 1967…)

    1. “Justice Clarence Thomas pointed out that California’s position would allow the state to mandate regular access to private property for police or National Guard units that wanted to use it to hold training exercises.”

      Huh, Guess Justice Clarence Thomas never heard of the Third Amendment.

      1. The Third Amendment only restricts 1. Quartering 2. Soldiers 3. In houses.

        1. Which is why it’s odd that a Supreme Court justice thinks it wouldn’t restrict 1. Quartering 2. Soldiers 3. In houses.

          1. What Justice Thomas said was

            For example, could you have the exactmsame requirement, except during non-businessmhours for the property to be available for training of the — of the National Guard, for example, or the state police? Since it’s — since it’s open property, just simply say for three hours a day, not more than 120 days a 25 year, but certainly not to interfere with the business, the state police could train there?

            Since he’s not talking about quartering anyone anywhere, not talking about houses, and only sort of talking about soldiers, the Third Amendment isn’t even arguably implicated. (Note that all of this was fairly clear from Prof. Somin’s summary in the post.)

            Other than that, great point!

            1. So your analysis is spot on, unless National Guard units have soldiers in them, and nobody has ever lived on the premises of a business.
              Good luck with that.

      2. Well since you have actually heard of the 3rd amendment, what is the settled case law on the Quartering vs Training distinction?

        Surely you can come up with at least one case?

        1. To the best of my knowledge, the 3rd Amendment has never been litigated…

          1. Well, not extensively.

            1. Iirc this site mentioned only 2 cases total, one of which was whether police taking over your house because it was next to a house with a bad guy holed up counted.

              1. Quartering troops in homes was an abuse born of governments
                lack of resources, modern governments are flush enough they’re generally not tempted to do it, so there is seldom occasion for the topic to be litigated.

                1. It’s also born of the British way of figuring property ownership, in which all the property belongs to the King. Just because you built it doesn’t mean the King isn’t being benevolent letting you live in it. And if the King’s troops need a bunkroom…

                  1. Well it was hardly just British, it was used very effectively by the French in their religious suppression of the Huguenots. They’d quarter Dragoons on minor nobles until they converted to catholicism or were completely ruined and there was nothing left to pillage.

                    1. Either way, once you’ve decided that there isn’t a King, there isn’t a royal ownership of property, either. The French were closer to their former King, so they did a more thorough job of making the statement that “we do not have a King”.

  4. “The biggest problem for him, raised by a number of justices, was the possibility that, if Cedar Point wins, recurring government health and safety inspections of businesses would also qualify as takings.”

    Well, why wouldn’t they? Health and safety inspections ought to require warrants and probable cause. ANY involuntary entry onto private property by the government ought to. We’ve a right to be free from unreasonable searches and seizures, and warrants are how the government demonstrates a search or seizure IS reasonable.

    Involuntary entry by anybody other than the government should just be right out. Not something the government can authorize under basically any circumstances at all.

    1. “ANY involuntary entry onto private property by the government ought to.”

      Just to make sure I understand, you view these as impermissible:

      -inspectors periodically check the nuclear power plant next door to you to make sure that the various safety regulations are being followed (and to be clear, they don’t have a warrant, and when they ask for access, the guards at the gate answer ‘company policy forbids access without a warrant’)

      -FAA inspectors, without a warrant, want to do a routine 1000 hour inspection of the airliner you will be flying on next week. The company says ‘company policy forbids access without a warrant’

      -the health department wants to come to a restaurant once a year and poke thermometers into things, no warrant, no permission.

      Those are all off the table?

      1. I read your position as the government must be able to do these things without warrants or they won’t be able to do them at all.

        I do not understand why you imagine that the relevant agencies would have trouble getting warrants if warrants were required.

        1. The Fourth Amendment forbids the issuance of warrants without probable cause, so unless the investigators have probable cause to believe they will uncover a violation—which they almost assuredly do not—they would indeed not be able to compel the inspection.

          1. And yet magistrate judges routinely rubber stamp warrant requests without any critical examination of the alleged probable cause specified in the warrant application.

        2. As probable cause is required for a search warrant, how likely would it be that inspectors could meet that burden before a plane fell from the sky or a nuclear power plant released its guts near a major metropolitan center due to lax maintenance or even just misunderstanding of proper procedures?

          And are you willing to accept that same level of “probable cause” as sufficient for police to get a warrant to search your home?

          1. I forget where, but officers managed to get not just a normal warrant, but a no-knock dynamic entry warrant on a house because the family bought grow lights at a garden store and a field drug test false positived for marijuana on wet tea leaves in the family’s trash.

            Probable cause in practice is a much lower standard than you imagine it to be.

          2. Problem with that is in some jurisdictions police get regulatory inspectors to get them entry as a ruse.

            From the Orlando Sentinel:
            “ With emotions running hot, cooler heads prevailed Wednesday at the Department of Business and Professional Regulation.

            Four days after the Sentinel chronicled the department’s controversial barbershop sweeps with Orange County deputies, the state agency called for an internal investigation into the practice.”

            1. You seem to have confused regulators coming in with cops for cops coming in with regulators.

              1. No the regulators were the camels nose. The cops were there to “assist”.

      2. Nuke plant has an “operating license.”
        FAA licenses aircraft.
        State (or town) licenses restaurants.

        Don’t want inspection, surrender your license.

        1. Exactly. Just make everyone else get a business licence. Who cares if that just introduces extra unnecessary paperwork? Live free or die!

      3. All of these are clearly searches, and what part of the 4th amendment is unclear to you?

        Within limits government can provide incentives to permit warrantless searches, but it can’t mandate them. As long as we’re actually respecting the 14th amendment.

        Which we aren’t.

        Is this really inconvenient for a modern regulatory Leviathan? Yeah, sure. The Constitution was not written to create a modern regulatory Leviathan.

        This is the big constitutional problem of our age: The government we HAVE is not the government the Constitution was written for. Because of this the government we HAVE cannot function without continually violating the Constitution.

        We could resolve this by scaling the government back to the point where it could operate constitutionally, or by amending the Constitution to be fit for the Leviathan.

        We do neither, we just let the conflict between the Constitution and the sort of government we have fester. Because it would be vastly inconvenient for the government to admit to violating the Constitution on a routine basis, and people might blanch at the amendments necessary to render it constitutional.

        I think this mismatch between the government we have, and the Constitution we have, is the source of much of the pathology of our government. Because you can’t run a government based on routinely violating the Constitution and lying about it, without staffing it with people willing to do that.

        And such people will NOT give you honest government. They were selected not to.

        1. Politicians self-select to go after power. This is why the revolution was so unique. They were a rare instance of reducing government power rather than increasing it.

          Otherwise, all power hungry struggle to grow their power. This is why they speak of democracy more than freedom. Freedom is freedom from government, which gets in their way. Democracy is the argument a transient majority authorizes all they can get away with, which is the goal when you want to expand your power.

          Proof: Robert Byrd stood on the floor of the Senate, crying, at the horrors of a proposed balanced budget amendment thwarting “the will of the majority”. That it was the will of the supermajority never crossed his mind. That his party, correctly, often ran to court to thwart the will of the majority as it butted up against constitutional rights demanded by the supermajority never crossed his mind.

          1. “Politicians self-select to go after power. This is why the revolution was so unique. They were a rare instance of reducing government power rather than increasing it.”

            when you’re done revising history, what’s your next project going to be. The Revolution didn’t reduce the power of government… they reduced the power of the monarch. Not as sharply as the French did a decade or so later.

        2. “All of these are clearly searches, and what part of the 4th amendment is unclear to you?”

          The part where the 4th amendment refers to persons and their homes, but doesn’t say squat as to their business premises.

        3. Brett, every time you use that word, “Leviathan,” you are quoting, apparently without realizing it, both the Bible, and Thomas Hobbes. Because your use seems unrelated to those sources, I have to tell you that that word does not mean what you seem to think it means.

          Do some Google searching. Look for exposition of the frontispiece of Hobbes’ Leviathan. Quentin Skinner has a particularly good lecture on YouTube. It takes only 50 minutes to get a brilliant introductory summary of Hobbes. Of course, you also have to read, Leviathan.

          1. “I have to tell you that that word does not mean what you seem to think it means.”

            My take was that Brett is using meaning 2:

            “capitalized : the political state
            especially : a totalitarian state having a vast bureaucracy”

            1. The word’s political context is uniquely traceable to Hobbes and the Bible. In this case, I am going to go with them over Wester’s.

              A problem in Webster’s follows commonplace errors of modern interpretation. There simply is not any of, “totalitarian state having a vast bureaucracy,” in Hobbes. You can’t read that subsequent modern context back into history and attribute it to Hobbes without getting Leviathan wrong—which is what Brett seems to be doing.

              Part of the confusion, of course, is that Hobbes absolutely did have King Charles in mind—it’s sort-of-him on the frontispiece (until you look closer). Hobbes does seem to have idealized the king, with a result that generations of undergraduates have mistakenly concluded Leviathan is a justification for absolutist royal rule. But that was not Hobbe’s intent. He was inventing something entirely different which had little to do with the reign of Charles, except as a counter-example.

              Charles reigned over a nation which was far from a totalitarian state, but which might have felt like one to modern Americans. The bureaucratic part is mistaken. It implies centralized state control, which Charles was powerless to command. Royally-sponsored, monopolistic, freebooting enterprise for the nobility was more the order of the day—with an added feature of liberally ennobling the enterprising.

              To imagine the result, you have to survey inclusively nobles who supported Charles, nobles who opposed him, rural authorities who largely opposed him while supporting or resisting according to circumstances the church authority (more-than-nominally also the king’s authority), and the Puritans doing their own pre-revolutionary thing.

              All of that came much closer to run-wild, opportunistic free enterprise than to any modern government-control phenomenon like bureaucracy. For the less-powerful among the king’s subjects, the result did add up to a lot of compulsion, however unbureaucratic in the modern sense. Hobbes opposed that.

              It was Hobbes’ insight that the English condition during the reign of Charles was closer to too much liberty, too unevenly distributed, than to too much control. Hobbes saw too little protection for ordinary subjects if they could not manage a share in the spoils—although many of them could and did. To Hobbes—as to later historians—English government was too many contending factions and struggling individuals, not at all one thing, and thus not Leviathan in Brett’s sense.

              The difference matters because to understand Hobbes and Leviathan, you have to get that his revolutionary insight was meant not as an attack on liberty, but as a prescription to undo chaos delivered by ill-ordered liberty. It was intended as a prescription for better-sharing whatever liberty can be made practically attainable—with liberty judged, perhaps for the first time, as a political prerogative more than an economic one, and as a prerogative more to be widely shared than contested among elites.

              Hobbes may well have thought an enlightened king was needed to make that happen. It was his historical legacy to instead have his vision inspire world political change via its influence on the American Revolution—which was also not bureaucratic, nor intended to be totalitarian except in the case of slaves—who did suffer under an aristocratic class quite like those whose greed and opportunism delivered chaos in the reign of Charles.

              1. “The difference matters because to understand Hobbes and Leviathan…”

                He wasn’t writing a book report on Hobbes, he was writing original English text using the generally agreed current definitions of words.

                No one cares if you want to speak Klingon or Lathrop instead of English, but that also works in reverse – you can’t make the rest of us speak Lathrop either, just because it is your preferred language.

                1. Absaroka, nah. I’m not talking anything but English. Brett wasn’t talking anything but English. Brett was talking politics, and the U.S. constitution, and its creation. Say “Leviathan” in that context and Hobbes’, Leviathan is the subject. Brett got the subject wrong.

                  Brett could have instead been talking about Reagan’s, “Shining city on a hill,” and American exceptionalism. Speaking historically, Brett would have been just as wrong there. When you talk about history, and get it exactly wrong, you have to expect that someone who knows better may correct your history.

                  Purposeful abuse of history means something. Generally, it’s a red flag for prejudice, predilection, and argument which isn’t forthright.

                  If Ronald Reagan returns again and again to a quote from John Winthrop—who urged humility and piety—and mangles what Winthrop said for modern consumption, to turn it into a blasphemous boast, that tells you something worth knowing about Reagan, and about the nation’s politics. I’m out of patience for people who make stuff up to pretend history says what they wish it had said, but didn’t.

    2. You don’t HAVE to let health inspectors in (without a warrant).

      It just if you don’t have an up to date health inspection, you’ll have the license for your business revoked.

      That’s why they’re typically scheduled, it makes life easier for everyone.

      OSHA will often knock unannounced. And many times the business simply won’t let them onto the site, at least not until management is present. It’s also extremely common to restrict where OSHA can look to the category of the complaint. And in fact, you can refuse OSHA entry without a search warrant. (Be careful doing this…they’ll get a warrant…and then get it in all future cases).

      1. “You don’t HAVE to let health inspectors in (without a warrant). ”

        Right. Because pissing off people who can GET a warrant, and screw up your business for a very long time, is the way to go. I mean, if you’re in the process of dismembering the previous inspector, maybe you’d want to go this route. Short of that, what are they going to find that’s worse that what they’re going to SAY they found after you made them go get a warrant?

        1. I think that was Armchair’s point, James. As my favorite corporate compliance officer likes to say (about OSHA and the other acronym agencies), “They can’t make you do it. But they can make you wish you had.”

          1. Indeed, James missed the point.

            But as for this statement….

            “Short of that, what are they going to find that’s worse that what they’re going to SAY they found after you made them go get a warrant?”

            With OSHA inspections it’s very common for them to take pictures. And a wise company will ALSO take pictures of what OSHA took pictures of (which is their right). Which means when OSHA says they “found something” the company will ask for the documentation and pictures. If OSHA didn’t document it, there’s an issue.

            1. “Indeed, James missed the point. ”

              sure, except for not.

    3. “Well, why wouldn’t they? Health and safety inspections ought to require warrants and probable cause.”

      That’s some paranoia.

      1. No, that’s some, “There’s a principle the 4th amendment made part of the Constitution, maybe we should stop violating it.”

        1. Except they aren’t violating it. You’re choosing to let them in.

          You actually CAN stop them from entering without a warrant. And sometimes people do it.

          1. I tend to think that you’re not really respecting a constitutional right, (Such as the right to refuse entry to government agents who lack a warrant.) if exercise of the right can be punished.

            1. “if exercise of the right can be punished.”

              Punished how exactly? They legally can’t “punish” you for refusing entry without a warrant.

              What they WILL do is turn around and try to get a warrant. Which they typically will be able to do. But that’s their legal right and responsibility. But that’s not a punishment. That’s just logic.

              They’ll also probably be a little more vigilant in their search. But that’s not a punishment.

              1. Riiight. That’s not ‘punishment’. It’s just consequences.

                A pity the person experiencing it doesn’t notice the difference.

                1. I’m not sure what you want here.

                  The 4th Amendment guarantees against unreasonable search and seizure. And you have the right to demand a search warrant before letting OSHA into the building.

                  But OSHA likewise has the right to request just such a warrant. And ideally, they wouldn’t be searching your business unless they thought it was reasonable and needed. So of course, if you deny them such a search, they will go try to get a warrant.

                  If they DIDN’T try to, that would be more cause for concern. It would imply that they didn’t think their request to search your property would be granted a warrant.

            2. “I tend to think that you’re not really respecting a constitutional right, (Such as the right to refuse entry to government agents who lack a warrant.) if exercise of the right can be punished.”

              there’s plenty of rights that can be punished. You have a right to use the navigable rivers of the United States to move freely. Now try to use them to leave the state of your pending criminal trial.

    4. Aren’t govt inspections “agree to” by signing the license application submitted to govt?

      1. Yes, that’s the work-around: Require government permission to engage in a wide range of activities, then deny it if you don’t agree to relinquish your rights.

    5. You seem to be misunderstanding the issue. The case is not about what entries onto private property the government can or can’t require. It’s about whether the government has to pay the property owner after imposing the requirement.

      1. Or to put it another way, whether the government can impose the requirement without paying the property owner.

        1. Exactly. Just impose the requirement and compensate all land owners by foregoing a tax increase you otherwise would have imposed. Easy.

          1. That works if you believe the fraudulent sophistry that letting you keep money you earned is “subsidizing” you.

            Only power hunry liars and politicians believe that. But I repeat myself.

            1. “That works if you believe the fraudulent sophistry that letting you keep money you earned is “subsidizing” you.”

              That was the approach cited by a Republican politician here in NC opposing the spending plan by the Governor, who happens to be not a Republican. They’d prefer to provide tax cuts rather than use government spending to help people who need it.

    6. I would like a good rule about when “you can’t do this unless you waive your Fourth Amendment rights” is legal. But this isn’t the case to find one.

      1. Maybe at the entry gate to a military base. By entering the base, you consent to search upon demand. Of course, step off base and stay there, and you’re AWOL.

  5. Everyone should understand that this is not a ‘takings’ case. It is a union organizing rights case in which the takings clause is a handy tool to allow anti-union companies to deny access to union organizing attempts. For that reason alone at least a 6 to 3 decision in favor of the anti-union groups is likely. This is not to say that the Court is not right to deny access, just that the nature of the access, union organizing, is a major factor here.

    Consider this. Suppose California passed a law that allowed religious proslytizers to go onto private property to try to convert the heathens (such as myself) under the argument that it must do so in order to protect freedom of religion. That is because the zealots believe that they must have the right to go onto private property regardless of whether or not the owner of the property wanted to allow them access because their religion demands they attempt to convert the non-believers, thus saving the non-believers and themselves from eternal damnation. Anyone doubt that the current Court would find this Constitutional? No one, huh.,

    1. “Consider this. Suppose California passed a law that allowed religious proslytizers to go onto private property to try to convert the heathens (such as myself) under the argument that it must do so in order to protect freedom of religion. That is because the zealots believe that they must have the right to go onto private property regardless of whether or not the owner of the property wanted to allow them access because their religion demands they attempt to convert the non-believers, thus saving the non-believers and themselves from eternal damnation. Anyone doubt that the current Court would find this Constitutional?”

      I mean, they probably would say its unconstitutional? Not close either. Sure anyone has a right to go do your door to proselytize (or just say hello, or drop off the mail, or … I’m pretty sure the takings clause does not forbid the mailman from coming to your property to drop off the mail), but that doesn’t mean they can enter your property.

      In fact I think there was a case like this, not takings but something like it with religious groups.

      1. Obviously you have not had the situation where a group of religious zealots refused to leave a private residence until they had forced the homeowners to listen to their demands for conversion, and the police refused to expel them because in the words of the law enforcement officers, ‘they are just being good Christians, what’s your problem with that?’

        1. Again thats trespassing. But anyone can use the public walkway that leads to your door. I can walk up to your door too. You have every right to slam it in my face or get a restraining order …

          If someone entered my home and refused to leave I would call the police and they would kick them out. I dont believe law enforcement would refuse, although if they do I can probably sue them for not doing their jobs, or use force if it gets to that.

          Really, I think you need to read less propaganda on the internet (of either side) and get out more if you actually believe even a single justice on the supreme court would not view an invasion of property by a religious group grossly illegal, and if the government sanctions it, I’m guessing it wouldn’t be litigated under the takings clause but certainly it would be illegal in some way.

          This isn’t even a left or right thing what your saying is just wrong.

          Now there are free speech cases that say religious groups can proslytize. But thats not invading private property, generally its public property. You can proslytize at airports if they are owned by the government. You can enter a town that disagrees with you and walk up to someone’s door. If you give them your number they can call you! And you can block them! Anyone can do this!

          All supreme court caselaw has dealt with is religious use of public property, in which the argument from the right has been religious people should have the same access to the public square as everyone else. You might disagree with that, fine. Maybe you support Lacite or whatever. Fine. But it is the same access. Not more.

          Religious people can be persistent. It is not illegal for someone to be persistent. I have the same right to harass a job lead as they do to convert you, and the lead and you have the same rights.

          The point being, no one, ever, has said religious people have a right to use private property. No justice. And frankly, if I brought a takings claim under your law the liberals probably would rule against me! They would want me to bring an establishment clause claim!

          1. “If someone entered my home and refused to leave I would call the police and they would kick them out. I dont believe law enforcement would refuse, although if they do I can probably sue them for not doing their jobs”

            Their job is not to function as your private security force.

            1. Police regularly respond to trespassing calls. Didn’t think that was controversial…

              1. Nor did I…

                Actually, it’s a lot less paperwork than what would otherwise happen….

              2. Police regularly respond to trespassing calls, and a lot of other calls to. Doesn’t mean they do what the person who called them wanted them to do when they get there.

        2. “Obviously you have not had the situation ”

          I have to admit being just a wee bit skeptical that this happened. To you or anyone else. Of course you haven’t actually made that claim…

      2. You are wrong on your starting premise, Aladdin. No you do not have a unilateral right to go up to someone’s front door to proselytize or even to drop off the mail. That is a right granted by the homeowner. The homeowner can take away that right by, for example, putting up a fence, living in a gated community or just posting ‘no trespassing’ signs.

        The landowner can also take away that right by telling you, individually, that you don’t have permission even though other people (such as the mailman) still do have permission. The Supreme Court precedent on curtilage is mostly focused on when police can exercise that general permission.

        The point, though, is that since the landowner gives permission for the mail to be delivered, there is no taking involved.

        1. To clarify, religious proselytizers have an unlimited right to the public street. They likely have an easement right to be on the sidewalk even though that’s technically your property. They have a limited right to come up to your front door but only until you put them on notice that they are unwelcome.

          Religious people have equal rights to use public property. Your curtilage is not, however, public property.

        2. I think this might not be correct. Your front door is the historical public way for people to come and talk to you. You need some combo of cute white picket fence and GTFO signs to stop that.

          It’s a freedom of speech issue. Governments tried to pass laws against it, but that’s government restricting this long-term common historical activity.

          This is why fliers can be left. And why cities cannot use anti-trash laws against people throwing newspapers on your porch. This came up during a newspaper strike once, where supporters tried to use such against the newspaper, whicb was using scabs, who decided to continue delivery anyway even after the supporters cancelled their subscriptions.

          Humorous side note: one such preening politician who cancelled his subscription bragged how he preferred one of the tiny popcorn papers instead anyway…which was in its 23rd year of a strike action against it.

          1. Morning, Krayt. I think you are confusing the landowner’s right to permit or refuse access with the government’s (in)ability to restrict certain activities. Government can’t pass anti-flier laws because they are not supposed to be allowed to interfere with communications between willing speakers (the guy leaving the flyer) and potentially-willing listeners (the residents).

            The homeowner, on the other hand, can unilaterally refuse permission to anyone for any reason or none (with some exceptions). The big limitation on the homeowner is that there is a social convention that access across the curtilage to the front door is generally allowed, therefore the homeowner must do something affirmative to put potential visitors on notice that her property does not follow the usual convention. A white picket fence and GTFO sign would do it but that’s not the only way. An individualized verbal instruction would be adequate.

            1. The obvious solution is landmines. Combined with some kind of anti-aircraft weaponry, to prevent drone overflight.

    2. “Anyone doubt that the current Court would find this Constitutional? No one, huh.,”

      In the almost unbelievable chance that such a case would actually MAKE it to the SCOTUS, you’d be looking at a 9-0 decision to strike down such a law. On multiple grounds.

      I mean, you might potentially get Sotomayor supporting such a law. She never found a law passed by CA she couldn’t support. But other than that…9-0 or 8-1 striking down the law

    3. So organizing a union, trumps the bill of rights preventing the govt from specific actions.

      1. Only so long as unions routinely support the Democratic party. If they tended to support Republicans, the Bill of Rights would prevail, instead.

        1. Your right to not be in a union remains uninfringed.

    4. Anyone doubt that the current Court would find this Constitutional?
      Yes. I strongly doubt they would allow the missionary work.

    5. The law is pretty clear about what is curtiledge, and assumed to be open to someone approaching a building on private property, but that presumption of permission to go through a gate up to a door can be revoked by no trespassing signage, a locked gate etc.

      And no I don’t think even remotely the court would even remotely find it constitutional for evangelicals to go on a farm preaching the gospel to workers without the farmers permission.

      What kind fantasy world do you live in?

      1. The Catholics keep finding religious rights that didn’t used to exist.

  6. This is not a property taking case at all. That is just a cover. This is a union busting case.

    1. Funny. To the best of my knowledge California is the only state with this rule. Do unions not exist in the rest of the country?

    2. Oh Molly…

      The unions are the bad guys in California. One you join, you can’t leave. And the State is legally prevented from even talking about the union…especially trying to leave.

      https://pacificlegal.org/case/jackson-v-napolitano/

    3. Unions should be allow to do unconstitutional things because they’re unions?

      1. Talking to people is unconstitutional now?

    4. Are you taking a shot at Ulta here?

      I think we all kind of know what category of posts we can expect here and from who: EV is going to post about free speech, and libel, and words, and occasionally about other topics.
      Blackman’s all over the map but his curriculum, supreme Court, covid restrictions, and right wing court cases, and Impeachment and Emoluments.
      When we see Kerr it’s 4th amendment, Koppel 2nd and. Adler administrative law. Bernstein will post on Lochner, Anti-semetism or racial classifications.

      But for Ilya it’s 90% of the time it’s Takings, or Immigration or rational ignorance, or voting with your feet. Not unions, or free speech or right wing lawsuits. Occasionally it’s Trump bashing or books he’s written, or where he’s going to speak on his usual topics.

      So I’m going to take Ilya’s word for it, that it’s a legitimate Takings case, not thinly diguised union busting because he knows a Takings case when he sees one.

      1. Damn spellchecker doesn’t much like Ilya either.

      2. “So I’m going to take Ilya’s word for it, that it’s a legitimate Takings case, not thinly diguised union busting because he knows a Takings case when he sees one.”

        Sure. What was taken from whom, beyond the power to keep unions from talking to employees?

        1. Well obviously full ownership rights of your land and buildings.

          There was some discussion of whether such access constitutes an easement, there isn’t much debate that an easement entails land and constitutes an ownership interest by the holder of the easement.

          You can make a valid point if you are crafting a balancing test, but not trying to assert all the weight is only on one side.

          1. “Well obviously full ownership rights of your land and buildings.”

            obviously, if you start by defining “full ownership rights” as including the power to keep union people from interacting with your employees.
            It isn’t so obvious if you aren’t starting with that assumption.

  7. “three hours a day” and “permanent” seem like different things to me.

    1. They are very different. “three hours a day” is “intermittent” and not “continuous”. Something that happens intermittently can nevertheless be permanent. Something that happens continuously can nevertheless be temporary.

      I only pay my taxes once a year. It’s an intermittent process that I try to ignore the other 364 days of the year. But my obligation to pay taxes (or at least, to file returns) is permanent. I get no reprieve short of death (and technically not until the second year after I’m dead).

      Supreme Court precedents are about permanence, not continuity. A landowner at the shore can be required to permanently grant an easement across the property to the beach even though beachgoers are only crossing the property in summer (or daylight or any other intermittent schedule) and that easement is considered a taking (though sometimes one of de minimus value).

      1. “They are very different. “three hours a day” is “intermittent” and not “continuous”. Something that happens intermittently can nevertheless be permanent.”

        Something that will end within three hours is not permanent. Except to a five-year-old.

        1. That’s not what “permanent” means. Again, you are confusing it with the definition of “continuous”.

          1. “That’s not what ‘permanent’ means”

            Which is what I said.

            ” Again, you are confusing it with the definition of ‘continuous’.

            Sure, except not.

            Permanent means something that doesn’t change. And something that will change within three hours categorically does not fit that definition.

    2. Well you’d think different if the government decided to take over your kitchen 3 hours a day to cook meals for the seniors in your neighborhood.

      1. Whether or not I’d like it, I’d still know the difference between “3 hours a day” and “permanent”.

  8. Just in general, there seems to be frequent court reliance on parade-of-horribles examples (of arguable legitimacy) to decide cases, while the particulars of the case in question get short shrift. Unsurprisingly, that seems to happen when the side arguing outlandish alternatives would have a harder time with the facts of the case actually before the court. This seems to be a case of that sort. If someday a court were to tell the Pacific Legal Foundation to stick to the case in question, that could help. Let more far-fetched questions prove the need to decide them by actually happening.

    1. Judicial opinions contain things called holdings—explanations of why the court is deciding the case the way it did. When the Supreme Court issues one of these holdings, all other courts in the country are required to apply it in any future cases that come before them. That means that the Supreme Court can’t, shouldn’t, and (usually) doesn’t simply rule by giving a gut reaction of which side seems to be more sympathetic—the justices have to issue a holding which is going to be applied in other cases, which requires them to consider the logical implications of any given rule in other factual setting.

      1. Noscitur, except for “gut reaction,” and, “more sympathetic,” that made sense until your final clause. I see zero reason why the Supreme Court’s reasoning in a labor case must have implications for Justice Barret’s yard. I think the law and the nation would be better served if someone who showed up to talk about Barret’s yard, while citing a labor case, got told to take a hike.

        The facts in a labor case are never similar to the facts in a residential case. The very first fact separates them. One is a labor case, and the other is a residential case.

        All the other courts in the country can apply labor case precedents to labor cases, and leave it at that. Seems like that would hew better to the notion of, “cases and controversies.” The notion of applying without limit, “logical implications,” in, “other factual settings,” strikes me as too close to an invitation to adjudicate on the basis of pure ideology. Maybe that’s why Pacific Legal Foundation likes it. Maybe that’s why you like it.

        1. “Barrett,” not “Barret.”

        2. When you intentionally misframe the case, it’s not surprising that you get the wrong answer. This is not a labor case. This is a property rights case. For someone worried about “adjudicat[ing] on the basis of pure ideology”, perhaps you should look in the mirror first.

          1. “When you intentionally misframe the case, it’s not surprising that you get the wrong answer. This is not a labor case. This is a property rights case. ”

            Your first sentence is true, but the other two aren’t.

        3. I don’t mean this offensively, but you’re giving the distinct impression of a person who is completely ignorant about both how legal reasoning works and what the issues are in this particular case.

          1. Noscitur, whatever legal reasoning is, I don’t attempt it. I do try to defer to legal experts. Sometimes, though, from my position on the outside, the expertise itself seems to have taken special knowledge so far from the beaten path that it ceases to connect to subjects the law aspires to govern. Insiders can be slow to pick up on problems like that, because they are at home, accustomed, and in plentiful like-minded company.

            I think you are doing that now, when you try to re-frame a labor law case as a property rights case, to make it easier to attack labor organizing. As an insider, I expect you to know that there was a time, now fading apparently, when labor law was widely regarded as a field with its own legal rules, made necessary in order to protect a right to organize—another notion which seems to be getting cheered out of legal existence by many, maybe including you.

            Tell me this please, if this were regarded as a labor law case, would Justice Barrett’s concern about her residential property be in any way relevant? No? So why call it a property rights case, when deciding it as a labor law case would keep Barrett’s property right safe and sacrosanct? Given that, what is the point of insisting Barrett’s property right is in jeopardy? Seems like the point is rhetorical, to create a precedent for ignoring labor law, or even deciding labor law is illegitimate and needs ignoring. I think that’s what you want.

            1. I’m not sure what significance you’re attaching to “regard[ing]” or “call[ing]” this a “labor law” vice “property rights” case.

              The issue in this case is whether the Fifth Amendment requires California to pay farm owners for requiring them to allow union organizers to come onto their property. One possible solution is that the answer is no, but only because there’s a special rule for labor unions. That doesn’t strike me as particularly doctrinally satisfying, nor is it the rule of law that California is advocating, but it’s possible.

              But I’m not sure that I see the basis of criticism for exploring other possible rules.

              1. For better insight into the criticism, try answering my question about Barrett’s property right, instead of ignoring it.

    2. SCOTUS takes cases largely because of the need to address broader issues. It makes perfect sense that they’re be concerned about more than the case at hand.

    3. The Supreme Court takes about 100 cases or less a year, so they pick a case to set legal markers for the lower courts to follow, if this really were a case about one nursery and no bigger issues involved they wouldn’t take it.

      The Supreme Court has been asking more often what is the limiting principle on claims of state power. That’s the main reason why Citizens United was decided the way it was, the government couldn’t come up with a limiting principle in their argument about why they couldn’t ban books too, as well as the movie they actually did ban, except to weakly say they probably wouldn’t, even though they could.

      Barrett’s hypothetical should have been a great setup for California if they could have shown their theory of the State’s power didn’t allow them to open up Justice Barrett’s hypothetical yard.

      If you can’t answer the question convincingly then you are left with saying “yes we have the power to let outside groups use your yard 3 days a week, but of course we wouldn’t do that.” And if they did the Supreme Court has basically already rubber stamped it for lower courts to approve.

      1. The Supreme Court has been asking more often what is the limiting principle on claims of state power.

        Yeah, Kazinski, way too often. So often, in fact, that it seems like the court is demanding that every state means must be subject to a limit which leaves every power at least a bit short of accomplishing its legitimate constitutional end.

        Think about it. If you have a doctrine that every legitimate power must have a limit, then the only way to tell if a power is limited is to make sure it never fully accomplishes its purpose. If a power always worked, and always fully accomplished its constitutionally legitimate end, then that would always be taken as proof the power was unlimited, and thus violated the doctrine of universal limits.

        That writes the Necessary and Proper clause right out of the constitution. The constitutional definition of, “Proper,” has nothing to do with propriety. It has to do with whether a means is well chosen to accomplish a legitimate end. If it can’t do that, it isn’t proper. Judges who demand limits on legitimate means are paradoxically demanding improper means.

        The constitution’s limits are not about the extent of enumerated powers. They are about which powers are enumerated, which are not, and which other explicitly constitutional principles stand to be burdened or infringed. Thus, enumerated powers are limited, but not by extent. When the judges ask, “What’s the limit,” that should be the answer they get back.

        I get that anti-government advocates would like to see small-government ideology constitutionalized. Some judges seem to be working to do it. It is unwise to let that continue unchecked. There ought to be limit on doing that.

        1. “If you have a doctrine that every legitimate power must have a limit, then the only way to tell if a power is limited is to make sure it never fully accomplishes its purpose.”

          You seem to be saying ‘the government can punish you at all only if it can boil you in oil’. I don’t see that position becoming mainstream.

          1. Absaroka, I never said anything remotely like that. Your remark confuses means and ends, and ignores qualifications I added.

        2. There’s a term for when government is so small that it lacks effective power to limit the behavior of people within its jurisdiction, and that term is not “small-government utopia”. It is “anarchy”.

          Coincidentally, many of the people who long most eloquently for deeply limited government power are also quite fearful of lawlessness, as if they can’t make the connection mentally or emotionally.

      2. “The Supreme Court has been asking more often what is the limiting principle on claims of state power. That’s the main reason why Citizens United was decided the way it was, the government couldn’t come up with a limiting principle in their argument about why they couldn’t ban books too, as well as the movie they actually did ban, except to weakly say they probably wouldn’t, even though they could.”

        They aren’t allowed to issue advisory rulings, they have to work from the actual case or controversy presented by the matter at hand. This should be limiting the “what if”-type reasoning you laud so extensively.

        The limiting principle is usually some variation of “well, nobody tried to do that, or is trying to do that. If they were, this would be a different case.”

  9. Given the ideological commitments of the current Justices, I don’t see a scenario where the businesses don’t win this case in some fashion. If (when) they do, though, the state would not necessarily have to end the program – it could just pay the businesses for the “taking”. And it seems to me that they could fund these payments through a new tax on the state’s agribusinesses. Any reason to think it couldn’t do so?

    1. Sadly, they could do that.

  10. How about a law granting Trump supporters access to the floor of the Senate and the House so that they could persuade members to their views?

    1. If they had seized the government like they wanted to, I’m sure they’d have made some such arrangement. But they failed.

    2. Had they managed to prevent the counting and certification of the electoral votes, there might have been more pardons. But they failed, so no loyalty. Exemption from laws is only for winners.

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