The Takings Clause of the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.”  A California state regulation allowed labor organizers onto private agricultural property during non-work time on a limited number of days to “talk[] with employees and solicit[] their support.”  Labor organizers’ access to this property was strictly limited.  The California regulation stipulated when, for how long, and where exactly labor organizers could access the property to speak with agricultural employees, and it specifically forbid “conduct disruptive of the employer’s property or agricultural operations.”  In this case, owners of private agricultural properties challenged the California regulation, arguing that it violated the Takings Clause of the Fifth Amendment.

The U.S. Court of Appeals for the Ninth Circuit held that the challenged regulation did not amount to a per se taking of property within the bounds of the Clause.  Petitioners (the agricultural employers) asked the Supreme Court to hear the case, and the Court agreed to do so.  CAC filed an amicus brief in support of Respondents urging the Court to affirm the Ninth Circuit’s judgment.

Our brief made two key points.  First, at the time of the Founding, the Framers understood that the Takings Clause would prohibit only actual appropriations of private property.  Indeed, for decades following the Amendment’s ratification, the Supreme Court refused to extend the Clause beyond actual appropriations.  We explained that although the Court had more recently held that the Takings Clause also applies to the functional equivalent of a physical appropriation of property, it had only recognized two categories of regulations that it considered tantamount to actual appropriations such that they amount to takings per se: (1) regulations that involve a permanent physical invasion of property and (2) regulations that render the property completely valueless.

Second, our brief argued that the California regulation at issue did not amount to a taking per se because it did not fall within either of these carefully limited categories.  The regulation allowed certain people to visit private property during non-work hours on a set number of days each year, and it specifically forbid conduct that would disrupt work on the property.  As a result, we argued, there was no permanent physical invasion of property, and the property was in no way rendered valueless.

In June 2021, the Supreme Court held in a 6-3 decision that California’s access regulation constituted a per se physical taking.  According to the majority, the right to exclude is a fundamental aspect of the right to own private property, and therefore the regulatory appropriation of that right to exclude (through “taking access”) constitutes a physical taking per se.  The Court reached this conclusion despite recognizing that “[b]efore the 20th century, the Takings Clause was understood to be limited to physical appropriations of property.”