Rule of Law

OP-ED: Will SCOTUS Let Corporations Limit Labor Unions’ Rights Again?

The case concerns an attempt to expand a part of the Constitution that James Madison wrote in response to how the government behaved during the Revolutionary War.

The Supreme Court will hear arguments today in Cedar Point Nursery v. Hassid, a case that could have major implications for labor unions seeking to effectively organize. The case involves a challenge to a California regulation that permits labor organizers to visit agricultural employers’ property during non-work hours, on a limited number of days each year, to speak with employees and solicit their support. Two agricultural corporations, Cedar Point Nursery and Fowler Packing Company, Inc., filed suit challenging the regulation on the ground that it violates the Takings Clause of the Fifth Amendment, which states that private property shall not “be taken for public use, without just compensation.” The two companies argue that the regulation permitting this limited access to their land effects a taking of their property without compensation, and therefore violates the Constitution.

The Supreme Court should reject that argument. Under the plain text and history of the Takings Clause, as well as the Court’s precedents, the California regulation does not effect a taking, and any decision to the contrary would require a startling expansion of the Takings Clause’s scope. But the case will also be a litmus test for how members of the Court who claim to prioritize the Constitution’s text and original meaning will respond to this attempt to stretch the Constitution to limit Americans’ ability to organize.

As originally understood, the Takings Clause applies only to the direct physical expropriation of private property, meaning it applies only when the government “take[s]” private property, and it does not prevent such takings but rather requires the government to provide just compensation when those takings occur. In other words, a “taking” occurs when the government exercises its eminent domain power to physically acquire private property, such as to build a road, military base, or park.

The Constitution’s Framers (including James Madison, who drafted the Takings Clause) understood that it would apply only to the physical taking of private property, rather than the mere use of property. As William Michael Treanor, dean of the Georgetown University Law Center, explained in the Columbia Law Review, prior to the Fifth Amendment’s ratification, no federal rule required compensation when the government physically took or regulated property. According to Treanor, Madison was concerned that the new nation’s political process alone would be insufficient to protect people’s property rights, and so the Framers adopted the Takings Clause to prevent the government from seizing physical property without compensation, as had occurred throughout the American Revolution.

Accounts from shortly after the Clause’s adoption confirm that it was understood to apply only to physical appropriations. An 1803 treatise recognized that the Clause “was probably intended to restrain the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses, by impressment, as was too frequently practiced during the revolutionary war.” Another treatise writer observed in 1857 that “it seems to be settled that, to entitle the owner to protection under th[e] Clause, the property must be actually taken in the physical sense of the word.”

For decades after the Clause’s adoption, the Supreme Court interpreted it as applying only to direct physical appropriations. Indeed, as Justice Antonin Scalia recognized, “early constitutional theorists did not believe the Takings Clause embraced regulations of property at all.” But toward the end of the 19th century, the Court slowly began to expand the scope of the Clause, initially holding that the Clause may also apply in cases involving the functional equivalent of a direct physical appropriation of property. Applying that reasoning in a 1922 case called Pennsylvania Coal Co. v. Mahon, the Court held that the Takings Clause applies not only to physical takings but also to regulations that are particularly oppressive, like regulations that cap the height of buildings so low that they render building lots entirely useless. Yet even in those cases, the Court was careful to cabin the Clause’s application to regulations that could reasonably be considered tantamount to the sorts of direct expropriations that fell within the scope of the Clause’s original meaning.

Beginning in the 1980s, however, Richard A. Epstein, a professor at the University of Chicago Law School, posited that the Takings Clause could be used as a tool to curb federal regulations during the Reagan Administration. Justice Scalia, despite his self-professed commitment to originalism, seemed most eager to answer that call. In decisions authored by Justice Scalia—Nollan v. California Coastal Commission and Lucas v. South Carolina Coastal Council—the Court recognized two categories of regulations that are automatically considered takings: “regulations that compel the property owner to suffer a physical ‘invasion’ of his property, . . . at least with regard to permanent invasions,” and regulations that “den[y] all economically beneficial or productive use of land.” But even with this judicial expansion of the scope of the Clause, the Court has made clear that the Clause’s original meaning still provides some outer limits on its application.

The two companies now challenging the California regulation argue that the state government cannot require them to allow union organizers to enter their property without compensation, and that doing so effectively “takes” part of their property because one facet of owning property is the ability to exclude people from it.

But the California regulation at issue in Cedar Point Nursery is plainly not a taking.  It does not seize any property, nor does it render any property valueless, or even less valuable. Although the challenged regulation permits access to private land, it strictly limits who it allows to visit agricultural employers’ property, when they can visit, where they can go, why they can visit, and what they can do while visiting. It also specifically forbids any conduct that disrupts the property or business operations. It therefore does not permanently “take” any property or drain it of its economic value, as the regulation limits visitors’ access and does not allow interference with any business operations.

The Court should reject the corporations’ attempt to dislodge the Takings Clause from its text and history, which is really an attempt to dramatically expand its scope. It should instead heed the advice of Justice Clarence Thomas from a recent dissent and ensure that its decision is “grounded in the original public meaning of the Takings Clause of the Fifth Amendment.” The question is whether Justice Thomas’s colleagues who also purport to be textualists and originalists will take that advice.

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