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Wednesday, June 30, 2021

Supreme Court Tackles "Takings" Question Presented by California Labor Statute


On June 23, 2021, the U.S. Supreme Court issued its opinion in Cedar Point Nursery v. Hassid. The case involved two fruit-growing businesses in California that challenged a 2020 regulation enacted by the California Agricultural Labor Relations Board that mandated agricultural employers to allow union organizers onto their property to solicit support for unionization efforts for up to three hours per day, 120 days per year.

Two of the agriculture businesses challenged the regulation after union organizers attempted to enter their properties under the new regulation— in one case, the union organizers were prevented from entering, and in the other, the organizers entered the property but had not provided the required notice to the business before doing so. The District Court dismissed the businesses’ claims, and the Ninth Circuit affirmed the dismissal finding that the access that the regulation granted to each property was not a per se, or outright, taking of their property as prohibited under the Fifth and Fourteenth Amendments to the Constitution. The businesses appealed to the U.S. Supreme Court, which disagreed with the lower courts' rulings and found the regulation to be an unconstitutional taking.

Five justices joined Chief Justice Roberts in the majority opinion, which held that the regulation impermissibly authorized a permanent, physical invasion of the growers’ properties because it gave third parties the ability to infringe on the grower’s right to exclude others from their properties. The Court held that the right to exclude others is so fundamentally important to property ownership that encroaching on that right without compensation qualifies as a taking under the Constitution. Despite arguments from the union organizers that the regulation did not rise to the level of a taking because it did not authorize a constant, physical presence on the growers’ land, the Court held that the intermittent access that the regulation required was serious enough to rise to the level of a taking. The Court also rejected an argument that this case would set a precedent for challenges to other government-authorized physical invasions.

Justice Kavanaugh, concurring with the majority, provided insight into the labor context of the regulation. He opined that even with the protections afforded by national labor laws and regulations, the union organizers have no right to encroach on the growers’ land because access to the laborers was not contingent on access to their employer’s property.

In dissent, Justice Breyer and two other Justices argued that the majority opinion’s analysis was flawed, as the regulation was not a permanent physical invasion. The dissent advocated for a more multifactor test to determine whether the regulation was unconstitutional, and criticized the majority’s holding as jeopardizing “large numbers of ordinary regulations in a host of different fields that, for a variety of purposes, permit temporary entry onto . . . a property owner’s land,” such as those which authorize inspections of private property for safety or environmental purposes. Whether this fear as expressed by the dissent will be realized remains to be seen in the context of federal, state, and local regulatory activity.  

Post authored by Eugene Bolotnikov and Erin Monforti, Ancel Glink


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