The Hill today published my article on Cedar Point Nursery v Hassid, a major case that was discussed in the Supreme Court on Monday. Here is an excerpt:
On Monday, the Supreme Court heard a hearing in Cedar Point Nursery against Hassid, a major property rights case. Cedar Point could set an important precedent determining whether the fifth amendment’s takings clause requires the government to compensate property owners if they are forced to give outside private parties full access to their land. If the state prevailed, the government would have widespread power to force property owners to let outsiders into their property. This power can easily be abused in many ways. Fortunately, if the hearing is any indication, the judges seem likely to rule in favor of property rights.
At Cedar Point, the US Ninth Circuit Court of Appeals ruled that California law requiring agricultural producers to give union organizers access to their property for three hours a day, 120 days a year did not automatically lead to a “fair” assumption Compensation “required” under the takings clause. The state required access from union organizers so that the organizers could try to convince the farmers’ farm workers to join their unions. The Ninth Circle decided there was no revenue because the Government regulations have not required property owners to give union organizers the right “to traverse their property unpredictably 24 hours a day, 365 days a year.” Thus, there is no “permanent physical occupation” of property, as the Supreme Court precedent requires so that this is “per se” (automatic he) taking is considered …
It is a question of whether “permanent physical employment” occurs only when it is literally uninterrupted or when the right to occupation continues indefinitely but not for all hours of the day and at all times. The right to exclude unwanted market participants is a central element of property rights in Anglo-American legal tradition. It is hard to argue that a major limitation is not ownership acquisition.
During the founding period and the 19th century, the power of exclusion was recognized as an important aspect of property rights. Government violations of this right were generally understood to be revenue, except in some cases where the violation was necessary to prevent the owner from engaging in activities that endanger public health and safety.
Cedar Point has implications that go well beyond the union organizing context. If California prevails, it could allow the government to impose a wide range of access requirements on owners without paying compensation.
When states allow outsiders access to jobs, it will often do more harm than good to workers’ interests. If union organizers were able to step in regularly, disrupt work and potentially worsen employer-employee relations, it would predictably increase the cost of hiring this type of farm laborer. Employers are likely to respond by hiring fewer such workers, offering lower wages and benefits, or a combination of both.
I wrote earlier here and here about the issues raised at the hearing.
NOTE: The owners of the property in this case are represented by the Pacific Legal Foundation. My wife, Alison Somin, works for PLF. But she is not involved in this case.