Wall Street Journal Editorial Board,
June 24, 2021
The Supreme Court’s conservative majority so far this term hasn’t broken new Constitutional ground with its narrow rulings. That changed Wednesday with the Court’s 6-3 Cedar Point Nursery decision, which significantly bolsters protections of private property rights.
Two growers in California challenged a 1975 regulation by the state’s Agricultural Labor Relations Board that requires farmers to allow union organizers onto their property three hours a day for 120 days each year. They argued that the regulation was equivalent to a time-limited government easement and thus constituted what’s known as a “per se” physical taking of property.
The Constitution’s takings clause provides that private property shall not “be taken for public use, without just compensation.” When the government physically acquires private property for public use via eminent domain—say, to build a pipeline or road—the government is obligated to provide the owner with just compensation.
Here, the state argued it wasn’t physically taking the farmers’ property. Instead it was merely regulating its use—no different from requiring businesses to let health and safety inspectors onto property. So long as it isn’t permanently occupying or confiscating property, the state claimed it doesn’t have to compensate the owners.
The Court’s Penn Central (1978) precedent allows governments to regulate property use for the “common good” without compensating owners as long as the economic impact isn’t severe. Governments have used Penn Central to justify all sorts of regulations that deprive owners of the beneficial use of their property, and courts have usually given them deference.
But the majority opinion by Chief Justice John Roberts significantly narrows Penn Central. “The right to exclude is ‘a fundamental element of the property right,’” he explains. “Government action that physically appropriates property is no less a physical taking because it arises from a regulation.”
He cites the Court’s Horne decision (2015) in which the Court ruled a government requirement compelling raisin growers to set aside a percentage of their crop for the government constituted a physical taking. “The physical appropriation by the government of the raisins in that case was a per se taking, even if a regulatory limit with the same economic impact would not have been,” he wrote.
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 means—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.
Under the liberals’ interpretation, governments could require property owners to give the public or special interest groups access to their land to promote broadly defined social goods. Owners of beach front property would have to let the public trample through their land. Workplaces might have to let political organizers talk to employees.
Governments have increasingly been conscripting private citizens into carrying out their policy agenda. The Court’s conservative majority has repudiated one front of this assault and dealt a major victory for property rights.
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