My "The Hill" Article on Cedar Point Nursery v. Hassid

My article considers the implications of a major takings case currently before the Supreme Court.

Earlier today, The Hill published my article on Cedar Point Nursery v. Hassid, an important takings case that was argued before the Supreme Court on Monday. Here is an excerpt:

On Monday, the Supreme Court heard oral argument in Cedar Point Nursery v. Hassid, an important property rights case. Cedar Point could set a major precedent determining whether the Takings Clause of the Fifth Amendment requires the government to compensate property owners when it forces them to give outside private parties extensive access to their land. If the state prevails, government would have broad power to force property owners to allow outsiders onto their property. That power can be abused easily in many ways. Fortunately, if the oral argument is any indication, the justices seem likely to rule in favor of property rights.

In Cedar Point, the U.S. 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 automatically create a taking requiring "just compensation"  under the Takings Clause. The state mandated union-organizer access so that the organizers could try to persuade the growers' farmworkers to join their unions. The Ninth Circuit ruled there was no taking because state regulations did not require owners to give union organizers the right to "unpredictably traverse their property 24 hours a day, 365 days a year." Thus, there is no "permanent physical occupation" of property, of the sort required by Supreme Court precedent for this to be considered a "per se" (automatic) taking…

The issue 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 right to exclude unwanted entrants is a central element of property rights in the Anglo-American legal tradition. It is hard to argue that a major restriction on it is not a taking of property rights….

During the Founding era and the 19th century, the power to exclude was recognized as an important aspect of property rights. Government violations of that right generally were understood to be takings, except in some cases where the violation was necessary to prevent the owner from engaging in activities that threatened public health and safety….

Cedar Point has implications that go far beyond the union organizing context. If California prevails, it could allow the government to impose a wide range of access requirements on owners without paying compensation….

Allowing states to mandate outsider access to workplaces often will harm workers' interests more than it benefits them. If union organizers are able to enter on a regular basis, disrupting work and potentially worsening employer-employee relations, that would predictably increase the cost of hiring these types of agricultural workers. Employers are likely to react by hiring fewer such workers, offering lower pay and benefits, or some combination of both….

I previously wrote about the issues raised in the oral argument here and here.

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.