Takings

Supreme Court Decision in Cedar Point Nursery v. Hassid is a Major Victory for Property Rights

The ruling makes it far more difficult for the government to authorize physical invasions of private property without having to pay compensation under the Takings Clause.

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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.

NEXT: Supreme Court Protects Students' "Political or Religious Speech" Outside School

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  1. Well, it’s certainly a major victory for something…

    1. The irony is that the labor rights of “non-essential” workers was taken by State and local governments in the largest-scale taking in history and not a single worker received just compensation for being prevented from making a living: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3567003

      1. Well I have to tell you, that the only labor right recognized by the constitution (it’s in the penumbras) is the right to organize.

        In fact the ‘right’ to non-organized labor, especially independent contracting, is actually an attack on THE paramount right of labor: the right to have a union with union officials selected by the highest councils of the union.

      2. Thanks, that’s an excellent example of what I was talking about. This kind of takings clause precedent can be used to attack literally any regulation ever made.

        To take a classic example: if access to property is property, why isn’t my labour property? And in that case, why aren’t child labour laws and laws regulating working time a taking? If the state doesn’t want me to work for more than 8 hours a day, they should pay me for the other 16!

        See? Isn’t this fun?

        1. Most regulations should be challenged on this basis.

          If I want to work (and be paid for) 12 hours a day, who are you to tell me that I can’t? You can plausibly restrict me if I’m a truck driver because of the safety implications to others on the road but that logic is much narrower than the sweeping regulation we currently suffer under.

    2. Ilya, congratulations to the PLF. Good victory for freedom. Not being sarcastic.

  2. “and enforcement of regulations that bar owners from violating common law rights of others. … the latter because the owner doesn’t have a right to violate others’ property rights in the first place.”

    It occurs to me that “common law rights” and “property rights” are hardly the same thing, though obviously they intersect. For instance, if my son is playing baseball, and the ball goes over a fence, he would commonly be viewed as having the right to retrieve it. That’s a property right in the ball.

    But there could be other common law rights that are not property rights. And, as common law is judge made law, you could see judges aggressively creatingdiscovering such rights to defeat this ruling in practice.

    1. Your son could avoid litigation with ordinary good manners, “Sir, may I get my ball?”

      1. And would. But he would not commonly be required to wait until my neighbor was home to retrieve his ball.

        As a child, mind you, my neighbor was the sort who’d have said no, thrown out your ball, and then complained to the police that you were littering. We lived next to “that” house, if you know what I mean.

        1. Open a campaign of lawfare to drive him out, and to make him want to commit suicide.

          A paint chip can cost $15000 repaint job. Report to EPA to force lead paint abatement.

          Here get this. Spend $10. Generate $thousands in costs for your enemies. This is the imposition of sicko Euro standards on our nation. Your state has adopted this.

          https://www.amazon.com/exec/obidos/ASIN/1622701860/reasonmagazinea-20/

          1. The guy was under enough stress, his wife was insane. We would just sneak in to retrieve things while he was away.

            1. Politicians rely on this. It is part of their intentions: get so much in the way, the people either lump it, or engage in illegal behavior to get around it.

              This allows them yet another thing to lord over your head if you get uppity.

              Government working as designed: for the corrupt to get in the way so they can get out of the way after some finger waggling. Evidence: all history and the entire surface of the earth.

              1. No, dude. The paranoid interpretation of government action is just self-reinforcing zealotry.

                Where you see the government not addressing individuals who are assholes, that’s not some design to keep you down. What appears dumb is just dumb, not part of some plot. What appears good is actually good, not an attempt to throw you off the scent.

                1. Well, that explains Hillary’s bathroom server prosecution, as well as the revolving door for looters and arsonists in Minneapolis and Portland. it’s just dumbity.

                  1. Or thing that are actually untrue, that you were told to believe without evidence.

    2. “For instance, if my son is playing baseball, and the ball goes over a fence, he would commonly be viewed as having the right to retrieve it.”

      But that right has to be balanced against the right of the Doberman to eat anything in his yard.

      1. But that right has to be balanced against the right of the Doberman to eat anything in his yard.

        Wasn’t this the basic premise of “The Sandlot” ? A coming of age story where young children learn valuable life lessons about opposing property rights?

  3. It will be a victory when the amount of compensation due is enough to either please the growers or dissuade the unions. Right now I could easily see this coming back with the lower court saying “okay, pay some token amount” and then we are right back in the same spot.

    1. “okay, pay some token amount”

      That’s not what “just compensation” means. The amount of compensation due based on the number of hours the business is disrupted because of this requirement wouldn’t be difficult to calculate and justify.

      1. It wouldn’t be, except that that’s not the taking that the Supreme Court found exists.

    2. Yes, that’s where the next fight will be

      But I do believe it will have to start with a CA law that specifies the amount of compensation the State government will pay, followed by a lawsuit that says “that’s not enough”, along with a request that teh new CA law be enjoined until the lawsuit is over.

      If the Supremes enjoin, there’s a small chance CA will come back with a more reasonable law, and a 70%+ chance CA will give up.

      Because the union dweebs DO have access to the workers off the farm

  4. Property rights are good. This is a good decision.

    The one remark I would make is that I doubt this decision would come out the same way without modern technology or in a different era. There was a time where laws like these were more necessary because if a employer does control all abilities of their workers to communicate, its a problem.

    Roberts said it is a per se taking, he didn’t use a sliding scale like Kavanaugh would have preferred. If it is a per se taking now, than it is regardless of technological factors, correct? It would have been a taking 50 years ago right?

    If it was a taking in say 1960, what else could have been done? Babcock, right? The court ought to have used the same reasoning here but it didn’t. What other regulations could have achieved the same outcome that weren’t takings?

    I am just pointing out that as high minded justices like to be with this … opinions are always the product of existing circumstances, as much as is claimed otherwise. Unions can communicate with workers so there is no need to consider the hypo otherwise. There is room to be more pragmatic here than the court wants to be.

    1. I don’t see how technology is relevant in this case, since the workers aren’t living on the farm. The union finds it inconvenient to accost them when they’re entering or leaving, or going about their private lives. Well, big deal, the farm finds it inconvenient to have union organizers tromping around, and it’s the farm’s property.

      If we were talking about workers who lived full time on the farm, technology, (Do they have cell phones?) might enter into it. Given that they frequently leave the farm? I don’t see it.

      1. Now SCoTUS should do the CDC and their eviction moratorium regulations.

        1. They should, but if they do, the CDC will moot the case by repealing them, and Roberts would let them.

          1. And as a very disappointed FMCC shareholder, I’d like to also add they screwed a lot of people with their latest ruling.

            1. I mean they did give yall a couple more bites at the apple.

              But yeah, its disappointing. But what happened is the risk of being constitutional claims, you might win but it would be somewhat hollow.

  5. Query: can the government condition the issuance of a business license on allowing union organizers in?

    1. I thought that, generally, the government cannot require you to give up Constitutional rights to receive a benefit.

      I think it’s IJ that has brought lawsuits against requirements that let government “inspect” rental properties whenever they want, with no needed justification.

      1. The reason I ask it is because the Court says that health and safety regulations are kosher because the business implied consents to them when it agrees to enter a regulated industry.

        Doesn’t that logic potentially apply to a business license?

        1. Union organizing is not a health and safety regulation, and union officials are not agents of the state to enforce them.

          But really Dylan you should look at the subtext here, the union couldn’t get any traction organizing the workers setting up an information stand on the public right of way near the entrance. So they talked the legislature into giving them access to go on to the property and wear down and harangue the workers while they were at work.

          If there was a perceived need for a union by the workers it wouldn’t take much to stop by for a second and sign a card. And nothing prevented workers that wanted a union from recruiting their coworkers.

          1. If there was a perceived need for a union by the workers it wouldn’t take much to stop by for a second and sign a card. And nothing prevented workers that wanted a union from recruiting their coworkers.

            In fact I’d say that off company grounds, where you’re not under observation by your employer, would be a far better place to be recruited than while you’re at work.

            One wonders how unions came into existence and continued to exist for so many decades without regulations like this one.

  6. Honestly I don’t think this opinion was right but was driven by the framing and the right leaning Justices complete antipathy towards the 9th Amendment. And frankly I don’t see this as a big win for property rights.

    1. By saying it is a taking all the government has to do is pay just compensation. Let’s be realistic here, there aren’t really any damages. Just compensation is like nothing.
    2. I agree with dissent. A burden on the right to exclude is not itself an easement. There really isn’t a physical taking nor is there any tract of land that can be said to form an easement. This is a regulation. Calling this a taking would apply equally to business inspections, anti discrimination laws, etc.
    3. The real issue is that the left doesn’t care about property rights and the right refuses to recognize the clear language of the 9th Amendment so that property rights can only be protected by calling it a taking.
    4. The real issue here is that there are property rights properly protected by the constitution (via the 9th A.) in their own right and the right to exclude is one of them. Therefore the government has to justify a burden on the right. There can be some debate over what level of scrutiny is involved by I do believe it is intermediate at the least and I don’t think this passes that scrutiny. The law itself is unconstitutional, the problem isn’t just that no compensation was given.

    1. Well, I agree that this is better framed as a 9th amendment case than as a takings case. But Bork won the war, even if he lost the battle: The judiciary would rather find a right within emanations of the penumbra of a sweet mystery of life, than invoke the 9th amendment to any effect.

    2. “1. By saying it is a taking all the government has to do is pay just compensation. Let’s be realistic here, there aren’t really any damages. Just compensation is like nothing.”

      I think this is right. What the agribusinesses really want is to be able to keep the unions out, not to be paid for the market value of accessing the land (which is basically nominal damages). If the courts do find substantial damages, California can (and should) respond by paying for them with a new tax on agribusinesses in the state.

      1. “1. By saying it is a taking all the government has to do is pay just compensation. Let’s be realistic here, there aren’t really any damages. Just compensation is like nothing.”

        I think this is right. What the agribusinesses really want is to be able to keep the unions out, not to be paid for the market value of accessing the land (which is basically nominal damages). If the courts do find substantial damages, California can (and should) respond by paying for them with a new tax on agribusinesses in the state.

        Apparently you missed this part:

        “Agricultural employers must allow union organizers onto their property for up to three hours per day, 120 days per year.”

        Do the math on that and see how much disruption of business activities and production that works out to annually, then come back and tell us how that’s “like nothing”.

        1. The idea that this is a “disruption of business activities” is ideology, not math. The cost of someone standing around in an empty field talking to people is no more than nominal damages.

          1. The idea that this is a “disruption of business activities” is ideology, not math.

            The idiocy of that claim has already been well explained by others here, and I see no need to reiterate those explanations when it’s clear that you’re just a garden variety partisan hack who is impervious to the facts or even basic reasoning.

            1. I don’t know, I might be pervious to facts and basic reasoning if you tried.

              1. Nah, we don’t have to. 😛

              2. I don’t know, I might be pervious to facts and basic reasoning if you tried.

                We can only write the explanations and make them available to you. We can’t force you to read and understand them. That’s your responsibility.

                1. You’ve written explanations, yes, but I was promised facts and basic reasoning.

                  1. Others wrote those explanations, which contained plenty of fact-based reasoning. Keep grasping.

          2. From the decision:

            According to the complaint, in October 2015, at five o’clock one morning, members of the United Farm Workers entered Cedar Point’s property without prior no- tice. The organizers moved to the nursery’s trim shed, where hundreds of workers were preparing strawberry plants. Calling through bullhorns, the organizers disturbed operations, causing some workers to join the organizers in a protest and others to leave the worksite altogether.

            1. Sure, but that’s an impact on business, not an impact on property.

      2. I don’t think it’s realistic to say no damages. Up to three hours a day, 120 days a year? And how many organizers might enter your property? Forget the disruption involved in your workers being distracted from their jobs, you’d have to assign somebody to watch the union organizers the whole time, to make sure they didn’t fall into a threshing machine, or pitch some Roundup into your fertilizer.

        Say it took two employees to keep track of them. At the minimum wage the Democrats have proposed, that’s about $11K! You could easily hit fifty grand in real expenses, taking into account lost productivity of your workforce, and the fact that their minders weren’t off doing their own jobs.

        No, we’re talking serious damages here.

        1. Honest question do you have any precedent to support that a response like that to the taking is included in just compensation? I see and sympathize with the argument, but I’m not sure that in practice that is an accurate accounting of what would be included in just compensation analyses.

        2. I highly doubt that the business’ paranoid decision to hire minders would be considered compensable. And the cost of the organizers standing out there and talking can’t be much. We are talking about an agricultural setting, after all, where taking up few feet of space is not significant. If a court were to buy your arguments, though, CA can and should pay the damages through a tax on the businesses themselves.

          1. And the cost of the organizers standing out there

            Out where?

            1. Out in the field near where the workers are working, presumably.

              1. Out in the field near where the workers are working, presumably.

                Why are you presuming that all agricultural work is conducted “out in the field”?

          2. “I highly doubt that the business’ paranoid decision to hire minders would be considered compensable.”

            Are you kidding me? The failure to assign minders would be an OSHA violation! As would the failure to provide personal protective gear where appropriate. Your employees are assumed to be familiar with workplace hazards, visitors are not.

            The need for minders is especially strict given that you’re not permitted to restrict access for these people, so you can’t keep them out of particularly hazardous areas.

            1. That sounds like they should sue OSHA for even more unlawful takings!

      3. Although the amount may be small, there certainly could be additional expenses that arise directly from the government’s requirement that third parties, not answerable to the government and not vetted by the land owner or the government, have extensive access to an owner’s agricultural property.

        One such expense is additional security both in terms of personnel and cameras etc. This to protect from property theft, property damage (turning on an agricultural machine inadvertently or intentionally when the equipment isn’t ready can damage the equipment), injury to trained employees who now have untrained strangers on the property around dangerous equipment, and liability for injury to the third party themselves.

        Another expense would be the necessity to provide PPE to the third party and/or inspect the PPE that the third parties bring. As well, providing training, or verifying that the third parties are properly trained, in the use of PPE and other safety protocols, possibly quite unique to a particular site, is an additional expense.

        Another expense may be higher insurance costs because the insurance company feels the risk of having less/untrained and legally realistically unrestrained (as even a reasonable restraint may take many years to enforce before the Supreme Court finally rules that such restraints are legal) third parties on the property increase the risks of liability claims.

        1. Your and Brett’s answers are far better than mine.

      4. Wait – these guys should be taxed to generate the funds to pay for their property being taken? What kind of logic is that?

        Great way to fix the civil asset forfeiture abuse. Just tax people that had their property taken by the government and use the funds to reimburse the loss.

        Hell, with this kind of logic the possibilities are endless.

        1. I like where this is going. If we taxed social welfare recipients as a way to fund their benefits…..

      5. Paranoid decision to hire minders? You really don’t understand industrial settings, do you?

        How about OSHA will hang you if you DON’T have employees escorting around visitors. If they so much as twist their ankle, you are responsible. You better be escorting them at all times.

    3. And frankly I don’t see this as a big win for property rights.

      Yeah, how could anyone view a SCOTUS decision that bolsters the right of property owners to control access to/use of their property by others as a win for property rights?

      Let’s be realistic here, there aren’t really any damages. Just compensation is like nothing.

      See my response to Aunt Teefah, then tell us how disrupting the operation of a business for over 17% of a full work year (assuming a single 8-hour shift per day, and 5-day work weeks…we can adjust for other assumptions) is “like nothing”.

      1. IIRC the regulations said 1 hour BEFORE work, 1 hour AFTER work, and 1 hour DURING LUNCH BREAK. That would seem to negate productivity concerns.

        Basically it is only a win if you a right and there is extensive damages. If I’m right and there is basically none then it isn’t because the ruling doesn’t actually allow property owners to control access to their property as you incorrectly said. And that I don’t see it as a win doesn’t mean I don’t see why others do.

        You also seem to be very hostile for not particular reason. I know a lot of posts one this blog are nothing but attacks and sarcasm, but all I did was share my opinion on the legal merits of the ruling.

        1. Basically it is only a win if you a right and there is extensive damages. If I’m right and there is basically none

          But you’re not right, even if you ignore the productivity issues I mentioned…as has already been explained multiple times by others.

          There was nothing at all in my response to you that was even remotely “hostile”. My first sentence was sarcastic, but that’s not hostility. Put on your big girl panties.

          1. Nothing has been explained. Others have made arguments that I don’t think fit the reality of what the law says.

            Sarcasm is frequently used as a hostile response, and your second answer was also snide “then tell us how…[this] is like nothing”. And your response to my comment about your hostility is even worse. Has nothing to do with “big girl panties”. I’m not sitting here crying in the corner because someone was mean to me. I just prefer to have an actual civil debate about the merits as the two other posters who disagreed with me were perfectly capable of doing.

            1. Nothing has been explained.

              Your refusal to acknowledge multiple explanations do not negate their existence.

              Sarcasm is frequently used as a hostile response

              And it frequently isn’t. Hands are frequently used as offensive weapons. If I stand in front of you in possession of my hands, do you conclude that I must be assaulting you?

              I just prefer to have an actual civil debate

              Dismissive hand-waving away arguments is not debate of any kind, let alone “civil”.

              1. What explanation did I ignore. People gave arguments about what would be included in just compensation. I have doubts that the law will recognize them as compensable. Explanations and arguments are not the same thing. That is the whole point of debate.

                I didn’t dismissively hand waive any argument. I answered all of them and why I don’t think they are right as a matter of law.

          2. ” Put on your big girl panties. ”

            Do you ever tire of getting stomped in the culture war, knowing superstitious and bigoted conservative thought is being rendered obsolete and irrelevant in modern society? Do you recognize that being on the wrong side of history has made you disaffected, desperate, and terminally cranky? Does it bother you to know that you will spend the rest of your life complying with the preferences of better people, who will shape your nation’s continuing progress against your wishes and efforts?

            Spoiler: Most people no longer care what you think. They merely require your compliance.

        2. Oh, and I have no idea what this is supposed to mean:

          then it isn’t because the ruling doesn’t actually allow property owners to control access to their property as you incorrectly said.

          1. The ruling said it was a taking. At best that means that means the government has to pay just compensation. The property owner doesn’t get to exclude anyone if the government is willing to pay, they don’t have any control over the access.

            What would give them control is if the Court ruled in the way that I think is correct by saying the right to exclude is a right in it of itself and this law unconstitutionally infringes on that.

            1. The ruling said it was a taking. At best that means that means the government has to pay just compensation. The property owner doesn’t get to exclude anyone if the government is willing to pay, they don’t have any control over the access.

              But the regulation in question does not provide compensation, just or otherwise, and so the plaintiffs cannot be forced to give the union access to their property under that regulation. If the regulation is changed such that it does provide just compensation for the taking then one or more impacted parties can challenge it on other grounds, like the 9A one you mentioned.

              On that note…

              the right refuses to recognize the clear language of the 9th Amendment so that property rights can only be protected by calling it a taking

              To what members of “the right” are you referring to here as having to resort to calling this regulation a taking?

              1. All of them. Not a single justice on the right and nearly all lower court judges, state judges, and scholars recognize the 9th A as a recognition of non enumerated rights. They follow Bork and just read it out like Scalia did as well.

                1. All of them. Not a single justice on the right and nearly all lower court judges, state judges, and scholars recognize the 9th A as a recognition of non enumerated rights. They follow Bork and just read it out like Scalia did as well.

                  Can you show us where in this decision…which was on a case where plaintiffs did not argue a violation of 9A, but DID argue a violation of 5A and 14A….where the justices “refused to recognize” 9A (which again, wasn’t part of plaintiff’s arguments) and seized on calling the regulation a taking via 5/14A (which again WAS the argument before it) as the only way to protect property rights?

                  1. It wasn’t argued this way because the Court has never recognized the 9th A as doing anything. Not once. Ever. Hence my complaint about the framing in my initial post. The lawyers were right to frame it this way given what the Court has done with 9th A in the past. The legal right has been pretty much unanimous in saying there is no such thing as an unenumerated right.

                    Show me one instance where any of the right leaning justices have ever suggested the 9th A. does anything regarding unenumerated rights. Doesn’t even have to be a property right, just any thing.

                    1. It wasn’t argued this way because the Court has never recognized the 9th A as doing anything. Not once. Ever.

                      That’s a nice circular argument there.

                      Show me one instance where any of the right leaning justices have ever suggested the 9th A. does anything regarding unenumerated rights.

                      Show me a case where the current “right leaning” justices were presented with a case based on a solid 9A argument, and they rejected it.

                    2. Forget the right, nobody in the judiciary gives the 9th amendment any respect. They’d rather call something a “substantive due process” right, than a 9th amendment right. They’ll shoehorn things that aren’t speech into free speech.

                      Anything but give any teeth at all, even baby teeth, to the 9th amendment.

                    3. You’re just arguing to argue now or you don’t pay attention. The right does not believe in unenumerated rights. That isn’t even debatable.

                    4. @Brett Bellmore

                      Oh I agree with that. I’m focusing on the right for two reasons.
                      1) the left in using SDP at least recognizes that the people have protectable unenumerated rights. I don’t like the way they analyze to determine if the right exists, but at least the premise that not all rights are enumerated remains.
                      2) The left isn’t where I’d expect protection for property rights anyway. While that is something that I don’t like it does mean that whether they believe in the 9th A doesn’t really change property rights cases.

                    5. You’re just arguing to argue now or you don’t pay attention. The right does not believe in unenumerated rights. That isn’t even debatable.

                      There’s that dismissive hand-waving again. Your simple-minded broad brush stroking is very much debatable. Again, show me the case(s) where the current “right-leaning” judges rejected a well-made 9A-based argument.

                      Plaintiffs in this case were perfectly free to make both 5A/14A AND 9A arguments, and if the latter failed they would still have had the one that proved successful.

                    6. the left in using SDP at least recognizes that the people have protectable unenumerated rights.

                      “Right-leaning” justices, including Thomas, Roberts, et al also recognize protectable unenumerated rights. They’ve just found them in other places than the one you keep insisting they should find them in. Can you find the word “privacy” describing that as an enumerated right in 14A?

      2. See my response to Aunt Teefah, then tell us how disrupting the operation of a business for over 17% of a full work year (assuming a single 8-hour shift per day, and 5-day work weeks…we can adjust for other assumptions) is “like nothing”.

        Except that’s not the taking. The taking is a taking property consisting of a law requiring the owner of the property to give certain people access to that property at certain times and places. So the compensable harm is the impact on the property. The fact that the law in question also impacts the business that is conducted on that property is neither here nor there.

    4. The 9th amendment refers only to the rights of the people, not to powers of the state.

      The 10th amendment says that powers not forbidden to the state, or given to congress are reserved for the states and the people.

      But this decision holds that the 5th amendment forbids this power to the states, so it is completely consistent with the text of the 10th.

      1. It doesn’t forbid power, it is about the rights of property owners. The right to exclude should be a free standing right that is recognized as existing per the 9th. Even the takings reading is only about the right of the owner to just compensation for the taking.

        1. Kazinski: But this decision holds that the 5th amendment forbids this power to the states

          mse326: It doesn’t forbid power

          It absolutely does forbid the power in question, which is to take property for public use without just compensation.

          it is about the rights of property owners.

          Yes, like the right to not have private property taken by the state for public use without just compensation.

          1. Every negative right can be rearranged as positive. His post was about the difference between individual rights and government power. The just compensation clause is an individual right. Just like the right to free speech can be viewed as saying the government doesn’t have power to restrict speech it is pretty much routinely understood as an individual right not restriction on government power if we are going to use the dichotomy. Same with the just compensation clause.

            1. The Supreme Court said it was a taking forbidden by the 5th amendment, the 10th says states cannot exercise powers forbidden by the constitution.

              You are free to frame the question anyway you like, but that is how the court framed the question, and it excludes using the 10th amendment as a workaround.

              If the question involved a congressional statute, possibly the 10th amendment would be in play, but I doubt it, because it’s cited about as often as the 3rd amendment in decisions.

              1. They said it was a taking requiring just compensation.
                And I don’t know why you are bringing the 10th A. into this. I never mentioned it.

            2. Every negative right can be rearranged as positive.

              A stitch in time saves nine. OK, your turn.

              His post was about the difference between individual rights and government power.

              Well, no. It was about the differences between the subject matter of 9A and 10A. Granted, the difference is that the former attempts to guarantee the retention of unspecified unenumerated rights of the people, while the latter attempts to guarantee retention of powers by the states and the people. But his post was not about the difference between those two concepts.

              Just like the right to free speech can be viewed as saying the government doesn’t have power to restrict speech it is pretty much routinely understood as an individual right not restriction on government power if we are going to use the dichotomy.

              There’s no “dichotomy” involved. His point was that, per COTUS, the state of CA does not have the power to force businesses to allow unions access to their property. It is “forbidden” this power because of a right protected under 5A and incorporation of that amendment against the states via 14A. It’s not an either/or thing.

    5. 1: Having union reps on your property is a huge damage, for which the just compensation had beeter be very large.

      Otherwise the grower’s sue again, and this time get an injunction to keep the union dweebs off their land until they’re properly paid.

      2: You’re wrong, just like the dissent. The government giving you the right to enter my property, at any time, is pretty much the canonical definition of an “easement”.

      If the your summer business wants your customers to be able to drive across my land, during daylight hours, to get to your business, that’s an easement. If the government forces me to give it to you, that’s a taking.

      The fact that it’s not 24 hours a say, and that it’s “only” 90 days a year, doesn’t change that reality

      3: The Ninth Amendment has absolutely nothing legitimate to do with this case. Your “right to unionize” can not possibly be greater than my “right to be left alone.” The CA law is entirely about giving union thugs the power to force themselves where they aren’t wanted.

      No reasonable person can claim that’s an actual right

      1. You may want to read my 9th A argument again. It wasn’t the right to unionize, it was the exact opposite; it was the right of property owners to exclude. My complaint is that this didn’t go far enough in protecting property owners.

        An easement contains a right to the property by the person utilizing it that follows the property. It didn’t confer a property a right so it is more like removing trespass laws only

        1. My complaint is that this didn’t go far enough in protecting property owners.

          Then perhaps you should have auditioned for a spot on the plaintiffs’ legal team, where you could have persuaded them to base their case on a 9A argument instead of the one they did make.

          An easement contains a right to the property by the person utilizing it that follows the property. It didn’t confer a property a right so it is more like removing trespass laws only

          I’m afraid I’m far too sober right now to make heads or tails of that.

          1. And easement is a property right by the person using the easment. The organizers aren’t seen here as having a property interest in the land. This is closer to a license to use the land.

            1. And easement is a property right by the person using the easment.

              You mean…like the right to enter the property for a specific purpose?

              The organizers aren’t seen here as having a property interest in the land. This is closer to a license to use the land.

              An easement does not require a property interest in the land itself. My local power company enjoys an easement across a section of my property because of the power lines that run across it. They have no interest in the land itself. The easement exists so they may enter the land in the event that they need to in order to access that section of the power lines. And it is very much an easement.

              Gee, y’know…that sounds a lot like what the CA regulation in question created. A right for union reps to enter the business owners’ property in order to gain access to workers who are on that property.

      2. 1: Having union reps on your property is a huge damage, for which the just compensation had beeter be very large.

        How does having union reps on your property affect the value of your property? (As opposed to the value of your business.)

        1. “How does having union reps on your property affect the value of your property? (As opposed to the value of your business.)”

          You’re drawing an unnatural distinction between the value of the property and the value of the business. The value of the property IS the ability to conduct business on it. By preventing the ability to conduct business on it, you’re lowering the value of the property from what it would be without the restriction. By your logic, it would be fine to just rezone all land that existing businesses are on to make them non-commercial properties. They’re not affecting the land, just the business that can be conducted on it.

  7. Did the supreme court just effectively invalidate the enforcement of pretty much every single zoning, health inspection, and perhaps discrimination law that is written?

    To enforce health inspections a government worker must intrude on private property. There is no listed reason why this does not fall under the right to exclude. The justice stated vaguely that “Under this framework, government health and safety inspection regimes will generally not constitute takings” but doesn’t explain why. What makes them different?

    Why doesn’t this new definition of the right to exclude also invalidate fair housing or environmental regulation enforcement?

    Additionally, what is just compensation? If a union organizer goes onto a property, doesn’t talk or disrupt the owner at all, and only talks to workers during breaks (thereby not affecting productivity) during a workday when the property is otherwise open, what would be a justified compensation? The owner has suffered no injury.

    1. “Did the supreme court just effectively invalidate the enforcement of pretty much every single zoning, health inspection, and perhaps discrimination law that is written?”

      No, they didn’t, see, the opinion. They didn’t even invalidate this law, just declared it a taking. Not the same.

      1. If it’s a taking, you have to compensate. If you have to compensate, it is going to be monetary. If the government has to pay money for every single health inspection, environmental inspection, fair housing inspection, etc etc, those laws are done. No state, county, or municipal government has the money for that. The federal government doesn’t even have the money for that.

        1. If it’s a taking, you have to compensate. If you have to compensate, it is going to be monetary. If the government has to pay money for every single health inspection, environmental inspection, fair housing inspection, etc etc, those laws are done. No state, county, or municipal government has the money for that. The federal government doesn’t even have the money for that.

          Given that the decision made it clear that those sorts of .gov activities aren’t takings…and even told you why they aren’t…your comment is based entirely on a false premise.

          1. Where in the decision did it explain why they aren’t takings? Please point it out. What explicit language was used.

            1. Where in the decision did it explain why they aren’t takings? Please point it out. What explicit language was used.

              FFS. Did it occur to you to actually read the decision yourself before diving right into commenting and then expecting others to spoon feed everything to you?

              “Third, the government may require property owners to
              cede a right of access as a condition of receiving certain benefits, without causing a taking. In Nollan, we held that “a permit condition that serves the same legitimate policepower purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking.” 483 U. S., at 836. The inquiry, we later explained, is whether the permit condition bears an “essential nexus” and “rough proportionality” to the impact of the proposed use of the property. Dolan, 512
              U. S., at 386, 391; see also Koontz v. St. Johns River Water
              Management Dist., 570 U. S. 595, 599 (2013).
              Under this framework, government health and safety inspection regimes will generally not constitute takings. See, e.g., Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1007 (1984). When the government conditions the grant of a benefit such as a permit, license, or registration on allowing access for reasonable health and safety inspections, both the nexus and rough proportionality requirements of the constitutional conditions framework should not be difficult to satisfy. See, e.g., 7 U. S. C. §136g(a)(1)(A) (pesticide inspections); 16 U. S. C. §823b(a) (hydroelectric project investigations); 21 U. S. C. §374(a)(1) (pharmaceutical inspections); 42 U. S. C. §2201(o) (nuclear material inspections).

              None of these considerations undermine our determination that the access regulation here gives rise to a per se
              physical taking. Unlike a mere trespass, the regulation
              grants a formal entitlement to physically invade the growers’ land. Unlike a law enforcement search, no traditional
              background principle of property law requires the growers
              to admit union organizers onto their premises. And unlike
              standard health and safety inspections, the access regulation is not germane to any benefit provided to agricultural
              employers or any risk posed to the public. See Horne, 576
              U. S., at 366 (“basic and familiar uses of property” are not
              a special benefit that “the Government may hold hostage,
              to be ransomed by the waiver of constitutional protection”).
              The access regulation amounts to simple appropriation of
              private property.”

        2. ” If you have to compensate, it is going to be monetary. If the government has to pay money for every single health inspection, environmental inspection, fair housing inspection, etc etc, those laws are done.”

          If it’s to get a permit, then the cost of the permit will include the compensation for letting the inspector on the property.

          if it’s not for a permit, then they shouldn’t be allowed on

    2. To enforce health inspections a government worker must intrude on private property. There is no listed reason why this does not fall under the right to exclude. The justice stated vaguely that “Under this framework, government health and safety inspection regimes will generally not constitute takings” but doesn’t explain why.

      Uhhh…yes it did, in the part of the decision that immediately preceded “under this framework” to which that phrase was a reference. Let us know if you need help figuring out what that part meant.

  8. This is a union busting ruling masquerading as “property rights”. The property rights argument is completely dishonest. The idea that allowing union reps into a farm a few hours a day for part of the year violates the takings clause is bull.

    1. From the opinion:

      “Before the 20th century, the Takings Clause
      was understood to be limited to physical appropriations of
      property.”

      If the conservative majority was actually committed to originalism, how is that not the end of the inquiry? I guess it turns out that the constitution evolving over time is just fine when it can be used to defeat workers’ power and further enrich businesses.

      1. If the conservative majority was actually committed to originalism, how is that not the end of the inquiry?

        Because that quote is referring to old SCOTUS case law, not the text of COTUS. It then goes on to explain how that case law has changed over time given new cases.

        1. “It then goes on to explain how that case law has changed over time given new cases.”

          Correct. This is called “living constitutionalism”.

          1. Correct. This is called “living constitutionalism”.

            Make up your mind. Are you accusing the majority in THIS case of not adhering to originalism (which does NOT mean “adherence to original case law”), or are you accusing the majorities in past cases of that?

            1. Both are true, but I am accusing the majority in this case of not adhering to originalism, because unlike most of those cases, the majority in this case is full of people who profess to be bound by originalism. As originally understood, the Takings Clause applied only when the government took title to the property in question. I am accusing the majority of jettisoning their stated interpretative methodology (originalism) when it poses an obstacle to their true goals (right wing economic policies).

              1. Both are true, but I am accusing the majority in this case of not adhering to originalism

                Based on a reference to an old superseded case decision? You clearly have no idea what “originalism” means.

                As originally understood, the Takings Clause applied only when the government took title to the property in question.

                It doesn’t matter what previous courts originally understood. What matters is the meaning of the constitutional text in question. A court can be quite originalist in it’s interpretation of such text while conflicting with previous interpretations thereof.

                I am accusing the majority of jettisoning their stated interpretative methodology (originalism)

                Because…again…you clearly have no idea what “originalism” means.

                1. “It doesn’t matter what previous courts originally understood. What matters is the meaning of the constitutional text in question. A court can be quite originalist in it’s interpretation of such text while conflicting with previous interpretations thereof.”

                  Yeah, that’s exactly my point. The court could have, if it was committed to originalism, applied the original public meaning of the Takings Clause (restricting it to when the government takes title), and California would have won. Instead it relied on later doctrinal developments to reach the result it wanted.

                  “you clearly have no idea what “originalism” means.”

                  Yes I do: originalism is when businesses win cases, and the more cases businesses win, the more originialismer it is.

                  1. The court could have, if it was committed to originalism, applied the original public meaning of the Takings Clause

                    You really are as dumb as a box of rocks. “Original meaning of a bit of constitutional text” “Some previous court’s interpretation of the meaning of that bit of text”.

                    1. The Founders understood both precedent and judicial review, so you’re not being very originalist here.

                    2. Lmao you mad dude? It seems that reading comprehension is not a strong suit for you, so I’m going to try break this down real simple:

                      1. The original meaning of the relevant constitutional text required the government to pay compensation ONLY when it took title to the property.

                      2. Under the California law in question, the government does not take title to the property.

                      3. Under the original meaning of the relevant constitutional text, California does not owe compensation to the businesses.

                      4. Because the conservative justices disregarded the original meaning of the relevant constitutional text and held that California does owe compensation, this undermines the claim that they are committed to effectuating the original meaning of the constitution, at least when that interpretation conflicts with their ideological preferences.

                      If you have any coherent arguments against any of these points, feel free to make them. If not, I guess you can just keep making lame insults and looking like a fool like you have been.

                    3. “The original meaning of the relevant constitutional text required the government to pay compensation ONLY when it took title to the property.”

                      Well, that made sense in an era when the government either took title to property or left you freaking alone, nothing in between.

                    4. The Founders understood both precedent and judicial review, so you’re not being very originalist here.

                      WTH does them understanding precedent and judicial review have to do with the difference between conflicting interpretations of the original meaning of text vs determining that meaning has changed over time? Just because a court says, “This text meant ABC to the authors at the time it was written” does not mean that a later court saying, “No, the prior court erred in its interpretation of the text, and it actually meant XYZ to those authors” is an example of non-originalism.

                    5. Lmao you mad dude?

                      Expressing yourself like a 7th grade drop-out is a great way to be taken seriously.

                      The original meaning of the relevant constitutional text required the government to pay compensation ONLY when it took title to the property.

                      Says who?

                      “nor shall private property be taken for public use, without just compensation.”

                      That’s odd. I don’t see any mention of titles/deeds/whatever there. I also don’t see your claim in any of the finding in the first Taking cases before SCOTUS. In fact in Pumpelly v. Green Bay (1870) the court found quite the opposite.

                    6. “Well, that made sense in an era when the government either took title to property or left you freaking alone, nothing in between.”

                      So does the meaning of a provision of the constitution change based on whether it “makes sense” in a particular era, or doesn’t it? In other contexts, conservatives scream up and down that judicial updating of the constitution so that it “makes sense” in the current era is illegitimate. Why not here?

                    7. Discarding precedent as clearly wrong is not very originalist.

                      It’s radical, and ignores the models the Founders set up for judicial review. You don’t get to continually discard prior cases and look to the latest take on originalist meaning (that happens to coincide with your policy preferences.) That’s not originalism.

                      But you don’t appear to be able to support your interpretation with much more than insults anyhow, so I suppose it doesn’t much matter.

    2. It’s “union busting” in the same sense that your refusing to let a Jehovah’s Witness into your house is a free exercise violation. Just because a union finds something inconvenient doesn’t make it “union busting”.

      Organize my employees on their time, not mine. They don’t live 24/7 in the plant.

      1. So…when they are on lunch break?

        Is it okay now if the workers live on site (which is frequent)? The decision doesn’t make an exception for that.

        1. Is it okay now if the workers live on site (which is frequent)?

          But was not the case here, and is irrelevant. And even if it were the case, that wouldn’t require that union reps be allowed on the business’ property in order to provide workers with union information.

        2. Are the in the plant during their lunch breaks?

          The decision didn’t make an exception for employees who live on site, because the law wasn’t contingent on that.

    3. Having a property right means being able to decide how that property is used (within acceptable conditions).

      When someone violates that right, by not being welcome, is that not trespassing?

      But here, they’re required to allow someone to effectively trespass, so their right in the property has been diminished. That sounds like a taking.

      1. Define, under the new framework of SCOTUS, what is and is not acceptable conditions.

        1. Define, under the new framework of SCOTUS, what is and is not acceptable conditions.

          What in the world does that refer to?

    4. Unions should not have to respect property rights?

    5. Because not giving unions full and unrestricted access to your property for almost half of the working year is considered union busting? Even if the union reps are uninvited and unwanted by anyone present? Don’t forget, this access is mandated even if not a single person on the farm wants a union in the slightest. Even if the only response is a simple “go away”. This is where the law changes everything.

      There have been multiple attempts over the years to unionize my plant. All of the times, they have been rebuffed unceremoniously by the hourly employees. I don’t know what would happen if every other day, there was a person on site, preaching about how everyone needs to join a union. Stereotypically, this person would be run out on a rail and his soapbox thrown out with him. However, that would be a felony under this law.

  9. Let’s ask those complaining about the decision this question: What exactly is the state’s compelling interest in forcing a private property owner to provide union representatives access to that property?

  10. Here is a question I have been contemplating a little bit:

    Suppose Kelo had gone the other way. That is, takings cannot happen, except for public use.

    There is no public use here. Indeed, I have no idea if contemplating public use for this instance even makes sense. It is an easement specific to union organizers. Would the law have to go then? What about Penn Central or regulatory takings? Those don’t have public uses, do they? Do all regulations go?

    And does the fact that considering whether there is a public use here is nonsensical … does that mean it isnt a taking?

    I think, in some sense, Kelo expanded what a taking could be. The public use requirement in a sense grounds takings to actual physical takings.

    Idk if thats right. But just a few thoughts.

    1. Like, I dont think the court would throw out many regulations that they can simply require compensation for. Had Kelo gone the other way they would have to throw it out, meaning there would be less of a desire to expand the definition of a taking.

    2. Kelo wasn’t about “takings” in general, it was about the exercise of eminent domain, a very specific type of taking. I don’t think it has any relevance here.

  11. If you look at the regulation–and the number of employees at these places, you can arrive at a fairly large “organizing group” that has access to the property. It’s two organizers for up to the first 30 workers. Then an additional organizer for each at people over that.
    If an employer had 300 workers on a shift–then the union could bring 20 organizers. And it’s not a concurrent “3 hours”. It’s an hour before work; an hour at lunch and an hour at the close of the day.

    That’s quite a herd of people coming on your property three times a day–for 120 days. So it is a burden.

  12. First, I think Breyer’s point in passing is a strong one – what are the damage?
    Second, lay aside the union arguments, what about access to attorneys? Many of these workers have been exploited over the years. I have cabinets full of settlement agreements and court orders awarding FLSA back pay and other damages. I’m talking millions of dollars. When migrant farmworkers are held in company housing, they should have access to legal assistance. Similarly, they should have access to health care and their spiritual care. By denying this, I submit the farms are in the same situation the Court faced by persons in company towns. See Marsh v. Alabama.
    Even a libertarian like Ilya should be able to acknowledge this. At some point, the farmer becomes state-like, holding their workers in captivity and denying them certain First Amendment rights.

    1. If these people are being imprisoned or taken advantage of, that’s a different matter. One completely unrelated to what we are discussing. They also have every available opportunity to discuss with attorneys or union representatives outside of the workplace. If a company attempted to stop such communication, then I would agree with you.

      However, as I said, that is a completely different situation. A situation which this law doesn’t address.

      Then, we cannot ignore that unions have a long history of using extortion, threats, and violence to silence opposition and force people into joining and to force companies to hire unions. The number of people that are allowed to come on site is sufficient to be threatening, and a company would not be able to protect their people from being threatened, as that would fall afoul of this law. Not all unions would do this, true, but this regulation would embolden the unscrupulous by preventing any reprisal or protection against such acts.

      1. It’s been years and years since I worked directly with migrant farmworkers, but I can assure you that when they are in company housing, they don’t have a way to get out. No, they are not being held hostage with chains and bars, but the location of the farms and the distances that are required to be traveled do prevent this.
        It is my hope that I’m mistaken – that their First Amendment rights are protected, but I have my doubts. The Court did find an exception which allows health and safety inspectors access to the farms. I would be happy if it had also added legal aid attorneys and health care workers.

        1. It’s been years and years since I worked directly with migrant farmworkers, but I can assure you that when they are in company housing, they don’t have a way to get out.

          You seem to have missed the fact that company housing has absolutely nothing to do with this case.

          The Court did find an exception which allows health and safety inspectors access to the farms.

          The court didn’t “find an exception” to anything. It addressed the state’s argument that finding the regulation in question to constitute unconstitutional taking would somehow imperil such inspection regimes that have been long-recognized as NOT being unconstitutional takings, and explained why.

          1. “and explained why” should have been “and explained why that was not the case”.

        2. “It’s been years and years since I worked directly with migrant farmworkers”

          See Meryl Haggards lament “They’re tearing the labor camps down” from 1972:

          “ I guess it’s no secret eh that I did a few years in San Quentin
          And on my release I noticed that a lot of different things had come to pass
          While I was out of circulation
          Like the girls dresses were shorter and the freeways were wider
          And the ole steam engines were gone forever
          But the one thing I noticed most of all down through the San Joachin valley
          Was the disapperance of so many labor camps
          Where once I’d lived from time to time myself
          I noticed that that one there at Houston California was gone
          And the ole crown’s camp that lie between Formosa and Bakersfield
          Was just a barren spot with a few cottonwood trees
          And surrounded by an olive orchard
          Tho a few still remain like the ole blackburn’s camp out on weepatch highway
          It was an evident fact that someone was tryin’ to do away with them all
          And I couldn’t help but wonder what’s gonna happen to the farm workers”

          I myself spent some time during my formative years in a farm labor camp in ‘61 and ‘62 during the summers. My mother was a education major at Chico state and they set up a summer school for the migrant children in the farm labor camps in Gridley if memory serves, and I and my brothers got dragged along.
          It was definitely rustic, my fondest memory was the raw unpasteurized milk we got served with gramm crackers at snack time, it’s probably just as well I don’t remember what we were served for lunch.

          But the labor camps disappeared because of rising living standards for farmworkers and they couldn’t meet code and it was too expensive to upgrade them. But I don’t have any bad memories of them, things were different back in the early 60’s. I was far more traumatized by the fact we only had 3 channels on tv, and all of them only had religious broadcasting on Sunday mornings, including Oral Roberts, I’d almost rather having labor organizers foisted on me.

    2. When migrant farmworkers are held in company housing…

      What does that have to do with this case?

    3. Um, I’m pretty sure that if they’re being held in captivity, that violates the 13th amendment and also constitutes felony kidnapping.

  13. Eviction moratoriums?

  14. Disagreement over precedent is one thing, but the Leftist Twitterers really show how much they don’t believe in property rights when they act like three hours a day for up to 120 days a year is nothing. Come on. That’s a significant chunk of time on someone’s property.

  15. “a physical appropriation is a taking whether it is permanent or temporary.”

    Show of hands — who here thinks this logic will ever be enforced with respect to Red Flag laws?

    Is this thing on?

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