While not one of the matinee cases often discussed in the press, the Supreme Court handed down a major ruling this week on takings under the Fifth Amendment. In a 6-3 decision that broke along ideological lines (a departure from a long line of unanimous or non-ideological rulings), the court ruled in Cedar Point Nursery v. Hassid that a California law was a takings under the Constitution. As I mentioned yesterday, I expect to be teaching this case in the fall and it represents a very significant new precedent in the area.

Cedar Point addressed a California law requiring agricultural growers to give union organizers access to their property for three hours per day, 120 days per year. The question is whether such required periods of access constitutes a “per se” takings covered in past Supreme Court precedent dealing where the Court has focused on “permanent physical occupations” of property.

For those seeking an expansion of takings protections, the United States Court of Appeals for the Ninth Circuit created a perfect opportunity with a sweeping and poorly conceived opinion that ignored countervailing precedent. It found that there was no violation because the law did not require growers to give union organizers the right to “unpredictably traverse their property 24 hours a day, 365 days a year.”

Chief Justice John Roberts pounced on the sweeping generalization:

“That position is insupportable as a matter of precedent and common sense. There is no reason the law should analyze an abrogation of the right to exclude in one manner if it extends for 365 days, but in an entirely different manner if it lasts for 364.”

Roberts then used the opening from the Ninth Circuit to drive through a major new holding structured around the right to exclude:

“The right to exclude is “one of the most treasured” rights of property ownership. …According to Blackstone, the very idea of property entails “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” 2 W. Blackstone, Commentaries on the Laws of England 2 (1766). In less exuberant terms, we have stated that the right to exclude is “universally held to be a fundamental element of the property right,” and is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” … Given the central importance to property ownership of the right to exclude, it comes as little surprise that the Court has long treated government-authorized physical invasions as takings requiring just compensation.”

In his dissent, Justice Stephen Breyer insisted that the California regulation “does not ‘appropriate’ anything,” but merely “regulates the employers’ right to exclude others.” His approach would allow the government to force access to others on private property for shorter periods without the protection of Takings Clause.

The decision is a huge victory for those who favor a robust Takings Clause.

Source: Jonathan Turley

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