The Supreme Court decision in Cedar Point Nursery v Hassid, 549 U.S. ___ (2021), decided on June 23, 2021, was hailed as a “big win for property rights.” The 6 to 3 decision significantly bolsters protection of private property rights.
The case involved the challenge by two farmers of a California regulation that required farmers to allow union organizers onto their property three hours a day for 120 days each year. The farmers argued that the regulation was equivalent to a time-limited government easement and this constituted a “per se” physical taking of the property. The state argued that it wasn’t physically taking the property, just regulating its use.
The Supreme Court held that it was indeed a per se taking. The Court stated that the Takings Clause of the Fourteenth Amendment, provides: “[N]or shall private property be taken for public use, without just compensation.”
Here there was no physical taking. Judge Roberts noted that when the government, rather than appropriating private property for itself or a third party, instead imposes regulations that restrict on owner’s ability to use his own property, a different standard applies.
The Court went through the development of the law discussing Pennsylvania Coal Co. v Mahon, 260 U.S. 393 (1922) where the Court established the proposition that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Id. at P. 415. Judge Roberts wrote our cases have often described use restrictions that go “too far” as “regulatory takings,” citing to Horne v Department of Agriculture, 576 U.S. 351, 360 (2015). But I would just cite to Professor Robert H. Thomas and his blog, “inversecondemnation.com.”
The Cedar Point Court held that the access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. It stated that the right to exclude is “one of the most treasured” rights of property ownership. Citing Loretto v Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982).
The essential question isn’t “whether the government action at issue comes garbed as a regulation (or statute, or ordinance, or miscellaneous decree),” the Chief States. “It is whether the government has physically taken property for itself or someone else—by whatever meant—or has instead restricted a property owner’s ability to use his own property.”
In this case, the state effectively seized farmers’ property and handed it to union organizers. The three liberal Justices disagree. In their dissent, they argue that an “access regulation” like California’s rule isn’t a physical taking since the government isn’t literally expropriating their land. But the Founders conceived “takings” more broadly, as the Chief notes. The regulation was struck down as unconstitutional.