The Supreme Court heard oral argument last week in Cedar Point Nursery v. Hassid. The case, brought by two agricultural employers, involves a challenge to a 1975 California regulation that requires businesses employing farmworkers to allow union organizers on their property during non-work hours for up to three nonconsecutive hours a day, 120 days a year. The plaintiffs argued that this requirement violates the Fifth Amendment’s prohibition on the taking of private property for public use without just compensation. To make their argument, plaintiffs proposed a radical expansion of what constitutes a taking—one that could send shockwaves through many areas of government regulation. 

Plaintiffs argued that the regulation constitutes a taking because it removes a fundamental stick from the bundle of sticks that is property rights: the right to exclude unwanted persons from private property. They argued that any governmental action that limits this right to exclude should constitute a per se (or categorical) taking, with arguments about the limited nature of the unwanted persons’ intrusions going to the question of compensation rather than to the existence of a taking. 

California pointed to two lines of Supreme Court categorical takings jurisprudence, and argued that the plaintiffs’ theory fit neither. The regulation, California argues is, neither a permanent physical occupation of plaintiffs’ property under Loretto nor does it deprive the plaintiffs of all economically beneficial or productive use under Lucas (itself a significant expansion of takings jurisprudence when it was decided). Thus, the regulation is not a categorical taking and, California urged, must be considered using the regulatory takings balancing test laid out in Penn Central.

At oral argument, Justice Barrett commented that both sides had line-drawing problems, a sentiment shared by her colleagues spanning the Court’s ideological spectrum. 

California’s Solicitor General faced questions from Justices Sotomayor and Kagan about at what point—under California’s theory—an intrusion becomes significant enough that the ad hoc inquiry it championed should be replaced by the categorical inquiry plaintiffs forwarded. Other Justices pressed the point through hypotheticals, including state police training access, public beach access, and the designation of the corner of a private residence’s yard near a high-traffic intersection for occasional protests. 

Much of the questions directed at the plaintiffs also revolved around line-drawing, with even reliably conservative members of the Court—like Justice Kavanaugh—concerned by the plaintiffs’ extreme position and its ramifications for a wide range of regulations. These questions focused on whether government-mandated access for health and safety inspections would be considered takings under the plaintiffs’ “exclude unwanted persons” theory. Plaintiffs’ counsel attempted to soften the position by explaining that those reasonable government inspections would not have been considered property rights against which a taking could be affected at common law. Several Justices were quick to seize on this, noting that neither labor organizers nor a number of devices we might imagine that we want to be inspected—like spaceships in the future, Justice Breyer mused—were contemplated at common law. But as Professor Bowie has argued, the plaintiffs’ theory would do even more than render commonplace and essential health and safety regulations takings: it would also mean that anti-discrimination public accommodation mandates would be takings such that the government must compensate businesses for abiding by civil rights laws. 

Justice Kavanaugh underscored the extreme nature of the plaintiffs’ claims by offering counsel an off-ramp that was promptly rejected. He asked why the plaintiffs didn’t simply argue that, under the Supreme Court’s union access right decision in Babcock, the plaintiffs’ property right did not outweigh the union access right here? Plaintiffs’ counsel answered simply that the question was not properly before the Court, making clear that the goal is to force the Court into a radical reconsideration of property rights and government regulation. But, as Linda Greenhouse and others have noted, conservative lawyers are likely to have overreached before the Court’s newly-cemented conservative majority. Instead, the Court may adopt Justice Kavanaugh’s off-ramp as its opinion: find that Babcock, though in the context of the National Labor Relations Act (from which agricultural workers like those impacted by California’s regulation are explicitly excluded) should guide the Court in how to balance property rights against union organizing rights. In Babcock, the Court found that employers’ property rights would prevail when union organizers had other ways of reaching employees, thus limiting access rights largely to situations where employees lived at remote worksites like logging camps. While such a balancing test would not be the categorical test plaintiffs’ favor in their quest to expand takings jurisprudence, it would imperil the California regulation and would present a significant blow to union-organizing efforts nationwide. 

A transcript and recording of oral argument can be found here.