The Volokh Conspiracy

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

The article assesses today's important Supreme Court property rights ruling.



The Hill just published my article on today's important Supreme Court decision in Cedar Point Nursery v. Hassid. Here is an excerpt:

Wednesday's Supreme Court decision in Cedar Point Nursery v. Hassid, is a major victory for constitutional property rights. It ensures that, at least in most cases, the government cannot invade owners' land — or authorize others to do so — without paying "just compensation," as required by the takings clause of the Fifth Amendment.

Cedar Point involves a challenge to a California law requiring agricultural growers to give union organizers access to their property for three hours per day, 120 days per year. Long-standing Supreme Court precedent holds that a "permanent physical occupation" of property qualifies as a "per se" taking automatically requiring compensation under the takings clause. But the lower court ruled there is no per se taking here because the law did not require growers to give union organizers the right to "unpredictably traverse their property 24 hours a day, 365 days a year."

The Court could easily have ruled in favor of the property owners simply by holding that an occupation need not be literally continuous in order to be permanent. But Chief Justice John Roberts's opinion for the Court goes a step further, holding that — as a general rule — "a physical appropriation is a taking whether it is permanent or temporary."

The Court's decision is backed by both legal reasoning and simple common sense. As Roberts emphasizes, "[t]he right to exclude is 'universally held to be a fundamental element of the property right'" in land. That principle has been recognized by a long line of Supreme Court decisions and by jurists and legal commentators all the way back to the Founding and beyond. A serious violation of the right to exclude qualifies as a taking, if anything does.

Legal theory aside, most people readily recognize that the government has taken away a major part of your property rights when they require you to allow strangers to repeatedly enter your land without your consent. And that's true even if the trespassers only stay for a limited time. As Justice Amy Coney Barrett pointed out during the oral argument in this case, California's position would have allowed the government to require homeowners to permit protest demonstrations on their front lawns, so long as the protests last less than three hours per day, 120 days per year. Even a much shorter state-imposed front-yard protest still counts as a "taking" of the homeowner's property rights, under any plausible definition of the word….

The union-organizer context and the 6-3 split on the Supreme Court…. may lead many to view Wednesday's ruling through a left-right ideological lens — but that should be resisted. Had California prevailed, state governments would have had broad power to mandate "temporary" trespasses on private property. As I have pointed out previously, conservative state governments can abuse that power just as easily as liberal ones…. It is also far from clear that a victory for California would have benefited farm workers. Such a win might well have led growers to hire fewer such workers or offer lower pay and benefits, in order to offset the costs of disruption….

Wednesday's decision does not mean all government-mandated entry on private property qualifies as a taking. The court lists several exceptions to its general rule, including most "health and safety" inspections, and enforcement of regulations that bar owners from violating common law rights of others……

Despite these uncertainties and limitations, Cedar Point is a major step forward for constitutional property rights….

Elsewhere, in the article, I criticize Justice Stephen Breyer's dissent, which makes little sense, and would have had set a very dangerous precedent, had the Supreme Court adopted it.

I previously wrote about this case here, here, here and here.

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