Vox: SCOTUS issued "disastrous ... union-busting decision" on takings clause

Erin Schaff/The New York Times via AP, Pool

And the plaintiffs couldn’t be happier. Overlooked in yesterday’s First Amendment resolution in the case involving a cheerleader, the 6-3 decision in Cedar Point Nursery v Hadid tossed out a fifty-year-old California law that allowed unions to campaign for 120 days a year on business owners’ property. By ruling it a “taking,” the “party-line” decision written by Chief Justice John Roberts will require California to provide full-market compensation for any such activity.

Vox’ Ian Milhiser calls this “something out of Ayn Rand’s darkest fantasies”:

Since 1956, the Supreme Court has applied a well-established framework to businesses that wished to exclude union organizers from their property. On Wednesday, however, the Court effectively scrapped that framework — one that was already fairly restrictive of union organizing — and replaced it with something far more restrictive.

In the process of deciding Wednesday’s case, Cedar Point Nursery v. Hassid, the Court also rewrites much of its existing Fifth Amendment law. Then it adds caveats to its new rule that resemble the reasoning behind an infamous anti-labor decision from more than a century ago. The Court’s decision is rooted in value judgments about what sort of regulations are desirable and what should be forbidden — namely, those protecting workers’ rights. And it was handed down on a party-line, 6-3 vote.

Thus far, the Supreme Court’s first term since Justice Amy Coney Barrett’s confirmation gave conservatives a supermajority has been a fairly mixed bag. The Court rejected a frivolous attack on the Affordable Care Act and has sent mixed messages about how fast it plans to move its religion jurisprudence to the right.

But Cedar Point is a sign the radical new conservative regime that many Republicans crave and that liberals fear could actually be upon us. The Court fundamentally reshaped much of American property law in Cedar Point. It did so in a party-line vote. And it did so in a case involving labor unions — institutions that are often celebrated by liberals and loathed by conservatives.

The right to bar outsiders from disrupting businesses isn’t exactly a Randian fantasy. (Perhaps Milhiser isn’t too familiar with Atlas Shrugged.) That is precisely what this law was allowing to happen, as Pacific Legal Foundation has been arguing all along. They represented Cedar Point Nursery in this challenge to the California law, and produced a video which includes footage of union activity inside its facility during this 120-day period:

Time, as they say, is money and this is especially true during harvest season. But time was stolen from the Cedar Point employees when a group of uninvited activists from the United Farm Workers union barged onto the nursery’s property waving flags, blasting bullhorns, and yelling at Mike’s employees urging them to unionize.

To say this barrage was a disruption of the workday would be an understatement, as video footage shows.

“None of us had ever experienced anything like that. We’ve never seen a UFW flag,” said Mike. “We had absolutely no forewarning. This was an attack of monumental proportions.”

But Mike wasn’t the only one startled by the commotion UFW was causing.

“It was dark and there was a lot of them, so you’re scared, and you don’t know what they’re planning on doing,” said lower elevation manager Matthew McEwen.

Why were United Farm Workers there in the first place? Because a California state law allows private-sector unions to come onto private property for three hours a day, 120 days out of the year, to recruit workers into joining their ranks.

Legally speaking, though, is time money? Roberts writes that the intrusion on personal property sanctioned by government has to be considered a taking, which requires compensation. Just how much compensation is still in question, however:

The view that the access regulation cannot qualify as a per se taking because it does not allow for permanent and continuous access 24 hours a day, 365 days a year is insupportable. The Court has held that a physical appropriation is a taking whether it is permanent or temporary; the duration of the appropriation bears only on the amount of compensation due. See United States v. Dow, 357 U. S. 17, 26. To be sure, the Court in Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, discussed the heightened concerns associated with “[t]he permanence and absolute exclusivity of a physical occupation” in contrast to “temporary limitations on the right to exclude,” and stated that “[n]ot every physical invasion is a taking.” Id., at 435, n. 12. But the regulation here is not transformed from a physical taking into a use restriction just because the access granted is restricted to union organizers, for a narrow purpose, and for a limited time. And although the Board disputes whether the access regulation appropriates an easement as defined by California law, it cannot absolve itself of takings liability by appropriating the growers’ right to exclude in a form that is a slight mismatch from state property law.

PruneYard Shopping Center v. Robins, 447 U. S. 74, does not cut against the Court’s conclusion that the access regulation constitutes a per se taking. In PruneYard the California Supreme Court recognized a right to engage in leafleting at the PruneYard, a privately owned shopping center, and the Court applied the Penn Central factors to hold that no compensable taking had occurred. 447 U. S., at 78, 83. PruneYard does not establish that limited rights of access to private property should be evaluated as regulatory rather than per se takings. Restrictions on how a business generally open to the public such as the PruneYard may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public.

Roberts also distinguished this type of forced access from proper regulatory access:

The Board’s fear that treating the access regulation as a per se physical taking will endanger a host of state and federal government activities involving entry onto private property is unfounded. First, the Court’s holding does nothing to efface the distinction between trespass and takings. The Court’s precedents make clear that isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right. Second, many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights, including traditional common law privileges to access private property. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1028–1029. Third, the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking. Under this framework, government health and safety inspection regimes will generally not constitute takings. In this case, however, none of these considerations undermine the Court’s determination that the access regulation gives rise to a per se physical taking.

Justice Stephen Breyer disagrees, arguing that union activity does not constitute a physical taking of the property:

Does the regulation physically appropriate the employers’ property? If so, there is no need to look further; the Government must pay the employers “just compensation.” U. S. Const., Amdt. 5; see Arkansas Game and Fish Comm’n v. United States, 568 U. S. 23, 31 (2012) (“‘[W]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner’”). Or does the regulation simply regulate the employers’ property rights? If so, then there is every need to look further; the government need pay the employers “just compensation” only if the regulation “goes too far.” …

The Court holds that the provision’s “access to organizers” requirement amounts to a physical appropriation of property. In its view, virtually every government-authorized invasion is an “appropriation.” But this regulation does not “appropriate” anything; it regulates the employers’ right to exclude others. At the same time, our prior cases make clear that the regulation before us allows only a temporary invasion of a landowner’s property and that this kind of temporary invasion amounts to a taking only if it goes “too far.” See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 434 (1982). In my view, the majority’s conclusion threatens to make many ordinary forms of regulation unusually complex or impractical. And though the majority attempts to create exceptions to narrow its rule, see ante, at 17–20, the law’s need for feasibility suggests that the majority’s framework is wrong. With respect, I dissent from the majority’s conclusion that the regulation is a per se taking.

Does this case constitute a taking that “goes too far”? One look at the video would likely convince many of that position regardless of their relative Randian-ness. This wasn’t about the union setting up some informational tables and answering questions. They went into this facility to disrupt its operations, attempting to intimidate the owners and the workers. Any regulation that forces owners to sit back and allow that to happen is pretty clearly a “taking,” and one that “goes too far” even by Breyer’s standard.

As far as Vox’ claim that this is a “union-busting” decision, that’s nonsense. In the first place, there’s no union contract to bust at Cedar Point Nursery. Nothing in this decision impacts an already-unionized workforce in California or anywhere else. In fact, the word “bust” doesn’t appear once in Roberts’ decision or in Breyer’s dissent, because it’s irrelevant in Cedar Point Nursery. 

This decision might make it more difficult for unions to organize non-union workshops, but it certainly doesn’t make it impossible. Union organizers can set up shop on public property outside facilities to engage workers, for instance, or contact them at homes (or in hotels, as is the case with Cedar Point’s seasonal workforce). Finally, California might still be able to sustain a similar regulation as long as they compensate property owners on a fair-market basis for the takings. That will cost the state a boatload of money, especially with a 120-day window, but that’s the price for a government-endorsed invasion of private property.

This decision properly restores and defends private property rights against the power of the state, consonant with the 5th and 14th Amendments. It’s only a nightmare for those who put no value in any of the above.