In the 1960s, the United Farm Workers began demanding better pay and working conditions for California’s agricultural workers, who were subject to egregious exploitation and abuse. Led by César Chávez and Dolores Huerta, the union’s campaign culminated in the passage of the California Agricultural Labor Relations Act. Among other guarantees, this landmark law granted union organizers limited, temporary access to agricultural workplaces to speak with laborers. Businesses challenged the act as a violation of their property rights, but in 1976, the U.S. Supreme Court dismissed the case “for want of a substantial federal question.”
The Supreme Court of 2021—stacked, as it is, with six conservative Republican-appointed justices—sees things differently. On Wednesday, the court’s conservative supermajority held that California’s law violates the Fifth Amendment, which bars the taking of private property for public use “without just compensation.” Remarkably, the majority held that the law constitutes a “per se taking”—not a mere regulation, but an “appropriation” of property that flouts the owners’ “right to exclude.” The court’s 6–3 decision in Cedar Point Nursery v. Hassid is thus a crushing blow to organized labor, which often relies on workplace access to safeguard workers’ rights. It also undermines the broader legal framework that permits the government to impose all manner of regulations on private property, including workplace safety laws and nondiscrimination requirements. With Cedar Point, the Supreme Court has handed business owners a loaded gun to aim at every regulation they oppose.
Before we get to the devastating impact of Wednesday’s decision, some background: The Supreme Court has identified two types of “takings” under the Fifth Amendment, and deemed one much worse than the other. This distinction matters a great deal in Cedar Point. First, there are “per se” takings, which involve a major intrusion of private property. Historically, only the most burdensome laws—those that deprive property of “all economically beneficial or productive use” or constitute a “permanent physical occupation”—qualify as per se taking. In those situations, a property owner can automatically demand compensation or, if denied payment, block the law. Second, there are “regulatory takings,” which involve more minor restrictions on property, like zoning ordinances. It’s much harder to fight a regulatory taking in court, and even if you win, the government may have more flexibility in providing compensation.
For many years, Justice Antonin Scalia agitated to expand the definition of per se takings in a crusade to curb the government’s regulatory authority. He never quite succeeded—but in Cedar Point, Chief Justice John Roberts finished the job for him. Roberts’ opinion for the court deemed California’s union access law a per se taking that requires just compensation for agribusiness owners. How could that be? After all, union organizers are not on the property every day, but rather for three hours a day, 120 days a year; they do not constitute a “permanent physical occupation.” Nor do these organizers halt “all economically beneficial or productive use” of the land; most employees keep working, harvesting the produce that makes their bosses wealthy.
To get around this problem, Roberts changed the law (under the guise of applying precedent): He declared that a law that temporarily limits a property owner’s “right to exclude” qualifies as a per se taking of private property, compelling the government to pay the property owner. Any time a regulation allows third parties to “physically invade” property—even for a brief time—it “takes” that property under the Fifth Amendment, the chief justice concluded. As a result, the state must either compensate property owners or else cease its activities.
As Justice Stephen Breyer noted in dissent, this holding does not fit with Supreme Court precedent. Yes, the court has held that a temporary “physical appropriation” of property is a per se taking. But, Breyer wrote, California’s law “does not appropriate anything. It does not take from the owners a right to invade (whatever that might mean). It does not give the union organizations the right to exclude anyone. It does not give the government the right to exclude anyone.” Instead, the law merely “limits the landowners’ right to exclude certain others.” Until Wednesday, such regulations had not been deemed a per se taking. Now they will be.
The consequences of Roberts’ maximalist decision will be swift and severe. Most obviously, it will hobble unions’ ability to help California’s agricultural workers, who toil in dangerous conditions, facing the persistent threat of illness and death, for rock-bottom wages. Agribusinesses are notorious for exploiting these laborers, many of whom are immigrants who speak limited English. California’s union access rule arose out of necessity: Many farmworkers are migrants who continually move around the state in pursuit of seasonal work and lack permanent housing. They are, in short, inaccessible outside the workplace. If unions cannot speak to them at their job, they may not be able to speak to them at all.
Roberts did not explain how California could remedy the constitutional violation identified in Cedar Point, but it’s notable that the plaintiffs did not even ask for “just compensation.” Instead, they asked for an injunction excluding union organizers from their property. In theory, the state could fix the problem by compensating agribusinesses for unions’ “invasion” of their property. But how much would that cost? At oral arguments, Justice Amy Coney Barrett floated $50 per “taking”—a charge that would quickly balloon as every California agribusiness demanded payment each time a union organizer stepped on their property. And the plaintiffs suggested that businesses are owed much more. Are state lawmakers willing to cover that bill? Or will California require the unions to pay the cost? If so, might unions simply forgo farm access rather than pay out huge sums to every agribusiness they try to organize?
But the broader implications extend into nearly every corner of commercial activity in the U.S. In dissent, Breyer pointed to “the large numbers of ordinary regulations” that permit an “invasion of” private property. The government can enter a business to examine food products and inspect private schools, for example. Its agents can enter all manner of businesses to ensure compliance with run-of-the-mill health and safety laws. And it can force businesses to serve certain customers by passing civil rights measures. Are these per se takings?
To avoid answering this question, Roberts invented exceptions to Cedar Point’s new rule, including “a business generally open to the public.” As Harvard Law professor Niko Bowie wrote on Wednesday, however, the chief justice’s improvised exceptions won’t actually prevent businesses from refashioning typical regulations as a “taking.” Nondiscrimination laws “take” a club’s right to exclude women, religious minorities, and other disfavored groups. Environmental regulations “take” a landowner’s right to exclude inspectors. Fair housing laws “take” a landlord’s right to exclude Black renters. If guaranteed access to private property (including commercial businesses) is a per se “taking,” then, as Bowie put it, the government will have to start paying for what it regulates.
None of this is required by the original public meaning of the Constitution. Not even close. The Fifth Amendment’s framers understood the takings clause to apply only to direct appropriation of physical property. They carried on a long tradition, rooted in English common law and colonial practice, of authorizing entry onto private property for public purposes. The “right to exclude” that Roberts conjured in Cedar Point is not a constitutional principle but a policy judgment thinly veiled in legalese. It is the product of the conservative legal movement’s relentless demands for deregulation by judicial fiat—for a return to the era when federal courts struck down health, safety, and economic policies on the basis of their own political preferences.
The most optimistic spin on Cedar Point is that the Supreme Court will limit its reasoning to the context of unions. That, after all, is what the court did in 2018’s Janus v. AFSCME, hobbling public sector unions by creating a constitutional rule that applies to nobody else. The conservative justices’ evident hostility toward organized labor may not extend to the myriad regulations jeopardized by Cedar Point; the decision may be a ticket good for one ride only. That’s cold comfort to thousands of low-income workers who will now be subjected to even more abuse on the job. But if the court takes Cedar Point to its logical conclusion, we are entering a new era of black-robed rulers overriding lifesaving regulations put in place by representatives of the people.