Jun 24, 2021
In a ruling handed down Wednesday in Cedar Point Nursery v. Hassid, the Supreme Court decided that agricultural workers do not have a right to meet with union organizers at their place of work. The surprise of the opinion was less in the outcome itself, coming as it did from the most anti-labor Supreme Court in modern memory, than in the stunning rationale provided by the Court. In short, the decision further expands the Court's protection of near-absolute property rights for employers in an opinion that threatens to undermine not only labor union regulations like the one at issue here, but any government regulation that impacts the right of an owner to exclude someone from their property. The potential consequences of this decision are enormous.
The regulation at issue permitted labor unions to enter the property of agricultural employers during non-working hours and were not permitted to interfere with the actual work of the agricultural employer. The regulations include an explicit statement that it is the policy of the state of California to encourage the right of agricultural employees to organize and recognizes the more challenging context of organizing agricultural workers in particular, who are often seasonal employees working in remote locations. Given these challenges, in order to make real their right to self-organization just like other workers, agricultural workers, the regulation stated, have the right to meet with union organizers at their place of work.
"The Court's decision in this case is extreme. It poses significant dangers to both the types of labor regulations at issue in Cedar Point, as well as government regulations that have nothing to do with union organizing."
The Court's decision held that this regulation is unconstitutional because it "takes" the employer's property without paying the employer "just compensation," as required by the Fifth Amendment. Though we typically think of "takings" cases as involving the actual, physical seizure of property (think of the infamous 2005 opinion Kelo v. City of New London, in which the city condemned private property for use by a private developer), takings cases also include a broader range of government activities that we broadly call "regulatory takings" cases. These are cases in which a government regulation affects private property, but in ways that are different than a physical taking. Regulatory takings cases are typically governed by the fact-intensive balancing test laid out in the Supreme Court's 1978 decision Penn Central Transportation Company v. New York City.
In an opinion that defies both common sense and Court precedent, the Court held that the California regulation was a per se physical taking, despite the obvious fact that no property was actually, physically taken. No matter, said the Court, the regulation automatically constitutes a taking--no need to look at facts in this case!--because "appropriations of a right to invade are per se physical takings."
Interfering with an owner's right to exclude can sometimes constitute a physical taking under existing doctrine, but until now the doctrine has been narrowly construed and those cases typically involved instances in which the government has taken some sort of property right in the land itself (e.g., an easement). The Court has also found per se takings when a regulation has resulted in the loss of all economic value to the property or when there is a "permanent physical occupation" of some portion of the property, for example. But none of these factors was present in this case. Instead, as the dissent observed, the regulation merely "gives union organizers the right temporarily to invade a portion of the property owners' land." More accurately (given the regulatory language), it gives agricultural workers the right to speak with union organizers at their workplace. As the dissent explains, because the regulation "provides a temporary, not permanent, access to a landowner's property" and "does not amount to a taking of a traditional property interest," the regulation "is not a per se taking." Instead, it is precisely the type of regulatory taking that requires the fact-intensive balancing test the Court has been applying for decades by asking whether the regulation goes "too far."
To be clear: the Court's decision in this case is extreme. It poses significant dangers to both the types of labor regulations at issue in Cedar Point, as well as government regulations that have nothing to do with union organizing. The dangers spring from two foundational assumptions of the Court's approach to the issue presented in this case.
First, the Supreme Court assumes that employers have nearly unfettered power over their private property in ways that ignore the reality of the workplace and the basic lessons of Property 101. Though the Supreme Court approvingly (and apparently unironically) cites Blackstone's oft-quoted line that property is defined by "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe," no first-year Property student--let alone a Property Law professor--would agree that this accurately describes the world of property rights.
Property rights are always limited by the reality that we live among other humans and the actions we take on our private property may impact others. This is particularly true when your "private" property is open to the public. A shopping mall is not the same as my backyard and the rights of the owner of a mall to exclude people from his "private" property are going to look very different from my rights to kick people out of my backyard.
"The Supreme Court completely ignored these workers and their rights in rendering this decision. Instead, the Court closed its eyes to everyone except the property owner, pretending the owners were the only parties with rights that mattered in this case."
The property in this case was not open to the public, but it wasn't a backyard either. The employers in this case employed hundreds of agricultural workers. One of the parties in the case employed between 1,800 and 3,000 agricultural workers on his property. Those workers also have rights. California decided they had a right to speak with union organizers at their workplace. The Supreme Court completely ignored these workers and their rights in rendering this decision. Instead, the Court closed its eyes to everyone except the property owner, pretending the owners were the only parties with rights that mattered in this case.
How does this view of completely unfettered property rights impact other laws that regulate the owners of private property, particularly those regulations that limit the rights of owners to exclude (or, in the Court's polemical parlance, laws that grant "a right to invade")?
The Civil Rights Act of 1964, for example, requires owners of hotels to rent rooms without regard to the race, religion, or national origin of the guest, even if the owner would rather exclude guests of a particular race, for example. Should the government have to pay "just compensation" to the racist hotel owner every time a person of the disfavored race exercises their "right to invade" his hotel? The dissent includes a long list of regulations that may be in danger of requiring "just compensation" to the owners, including inspections for safety and compliance in the areas of food, foster care facilities, and preschools, to name only a few. The Court makes an unconvincing attempt to cabin the fallout of this decision, but it is not at all clear how the Court will be able to square today's sweeping vision of property rights with foundational cases recognizing important statutory limits to those very same property rights.
"The Lochner era died with the New Deal, but in recent years, conservative legal scholars have been urging a reassessment."
This observation leads to the second assumption guiding the Court's decision. The Court reached its decision based on the underlying principle that the employers had an absolute "right to exclude." There was no need to balance rights--to determine whether the regulation went "too far"--because the right to exclude is absolute. Takings cases have long taken account of state property laws (though curiously state property law played no role in the decision) but in Cedar Point, the Court held that the Constitution incorporates an asserted common law right of an employer and used that rationale to strike down a statutory scheme that aimed to protect core labor rights of workers.
Common law rights dressed up as constitutional law is, of course, the defining feature of the notorious Lochner era, during which the Supreme Court struck down a number of state laws that sought to protect the wages, hours, health, and safety of workers. In those cases, the Court held that employers and employees had a right to form a contract, for example, and the government had no business interfering in that contractual relationship. The right to contract was absolute. Period. End of analysis.
The Lochner era died with the New Deal, but in recent years, conservative legal scholars have been urging a reassessment. Whether this decision heralds a return to the Lochner era of jurisprudence, in which common law "rights" wiggle themselves into the Constitution and miraculously trump statutory rights for workers, or whether this decision is just more of the Court's embrace of a black-and-white jurisprudence where once a right is identified it wins, ignoring the reality of a world of reciprocal rights and obligations, it is a decision that spells trouble for workers and government regulations beyond this particular California context.
The trouble will probably not arise in the form of banning the government regulations at issue. As Justice Breyer points out in the dissent, the remedy in this case ought simply to be that the state must pay the employers "just compensation" for union access to the workplace. There is no requirement to strike the regulation in toto.
But in practice, the threat of "just compensation" may be enough to put a number of regulatory schemes to bed. Even if the compensation is likely to be only nominal or even if the government believes the regulation is not a taking, the threat of prolonged litigation and unknowable future compensation is likely to be enough to make regulators think twice about entering private property to enforce a law. It's enough to make legislators think twice before writing statutes that attempt to check the "despotic dominion" of employers at their workplaces. It's enough, in other words, to throw a huge monkey wrench into the gears of government regulation, which some might say was precisely the point of the Court's holding.
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