The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today's Supreme Court decision in Cedar Point Nursery v. Hassid is an important victory for private property owners. It establishes that even a temporary physical invasion or occupation of property authorized by the government qualifies as a taking requiring payment of "just compensation" under 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" (automatic) taking requiring compensation under the Takings Clause. But the lower court ruled that there is no per se taking here because the California law did not require growers to give union organizers the right to "unpredictably traverse their property 24 hours a day, 365 days a year." Thus, the occupation wasn't "permanent" enough.
I have previously argued that the Court could easily rule in favor of the property owners simply by holding that an occupation need not be literally continuous in order to be permanent. It just needs to be indefinitely recurring. But Chief Justice John Roberts' opinion for the Court goes a step further than this, holding that—as a general rule—"a physical appropriation is a taking whether it is permanent or temporary."
I think this ruling is correct, but it certainly goes farther than I and many other observers expected. The Court's decision does not mean that all government-mandated entry on private property qualifies as a taking. Roberts notes some exceptions to its rule, including most health and safety inspections, and enforcement of regulations that bar owners from violating common law rights of others. The former are justified as conditions for the conferral of various government benefits; the latter because the owner doesn't have a right to violate others' property rights in the first place.
The scope of these exceptions isn't entirely clear, and they will likely be a subject of future litigation. For that reason, the full impact of today's decision will not be clear for some time. That said, it is still a major step forward for constitutional property rights.
I will have more to say about this case later today.
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.
UPDATE: I have commented on the decision more extensively in a just-published article in The Hill.