The Supreme Court already decided today to try Cedar Point Nursery against Hassid, a major case for revenue. At Cedar Point, the U.S. Ninth Circuit Court of Appeals ruled that a California law requiring agricultural producers to give union organizers access to their property for three hours a day, 120 days per year, did not provide for compensation that required compensation as part of revenue Fifth Amendment Clause. The state required access to union organizers so that the organizers could try to convince producers’ farm workers to join their unions.
I wrote about the case in more detail here. The Supreme Court’s long-standing precedent is that capture occurs whenever the government has imposed “permanent physical occupation of property.” As I pointed out in the previous post:
The point here is whether “permanent physical employment” occurs only when it is literally uninterrupted or when the right to occupation continues indefinitely but does not apply to all hours of the day and at all times. The Supreme Court’s precedent on this matter, as on a number of other questions, is far from a model of clarity, and this is one of those questions where it is ambiguous. Nevertheless, I largely agree with the dissenting judges of the Ninth District and the above-cited decision of the Federal District in 1991. A permanent right to relief to enter or occupy an owner’s land is a grave violation of property rights, even if it is only for certain hours of the day and even if the intrusion is not continuous. In addition, the right to exclude unwanted market participants is a central element of property rights in Anglo-American legal tradition. It is therefore difficult to argue that a major limitation is not the acquisition of property rights.
In my previous post, I predicted this case could reach the Supreme Court because it raises important questions about revenue beyond the scope of the case and because eight Ninth Circle justices shared a strong opinion backed by the Rejection of the ninth circle deviates from rehearsing the case en banc. If I had to predict, I would say that the Conservative justices of the Court voted to hear the case because they intend to override the ninth circuit and opt for a broader definition of what is called “permanent physical employment “qualifies as the lower court.
The union organizer’s context and the ideological division between conservative and liberal Ninth Circle judges in this case make it easy to view this as a left-right conflict. But we should resist this framework.
If California prevails here, conservative “red state” governments can easily use the same power for their own ends. For example, they could use it to force abortion clinics to give access to anti-abortion activists who want to convince patients and health care workers that abortion is murder. They could also force companies and other organizations that ban guns on their premises to give regular access to gun rights activists. As long as advocates of pro-lifers and gun rights “only” get access for a few hours a day, 120 days a year, they would fit the Ninth Circle reasoning that there is no per se assumption unless government regulations require property owners to do so To give outsiders the right to “unpredictably traverse their property” 24 Hours a day, 365 days a year, “but only prescribes access for” 360 hourA year totaling 8,760 hours (and only 120 of them would be during the working day). “Shrewd lawyers (and lawmakers!) Can certainly think of other ways to use this broad power to enforce access to private property.
Even if there is no per se (automatic) acceptance, property owners may be able to appeal such restrictions based on the Penn Central balance test. However, this test is notoriously vague and the courts usually use it in ways that skew the result in favor of the government.
One of the main goals of constitutional property rights is to protect owners from state-ordered violations of all kinds, regardless of whether they are motivated by left or right ideology. Trade unionists, pro-lifers and others have the right to convince people to join their organizations and otherwise promote their cause. However, if the government forces private property owners to take them in, they are taking private property and should have to pay compensation. This rule protects both property owners and the coexistence of people with different views in a very diverse society like ours.
NOTE: The property owners in this case are represented by the Pacific Legal Foundation, which has issued a statement regarding the Supreme Court’s decision to take the case here. My wife, Alison Somin, started a position at PLF earlier this year, although she is not involved in this case. My own involvement in income problems dates back many years, long before I even met Alison. Even so, I include a disclosure like this on all posts about PLF indicted cases so that no one can claim that I’m somehow hiding a conflict of interest.