The Supreme Court ruled in Cedar Point v. Hassid – in one of the very few cases this term to break down 6–3 on “expected” ideological lines — that California’s “access regulation,” which allows union organizers to enter agricultural employers’ property for a certain amount of time, constitutes a per se (by definition, in and of itself) physical taking. Justice Brett Kavanaugh further explained that, even if this were not a per se taking, under existing labor‐​law precedent, the activists blaring their horns through the floor of Cedar Point’s strawberry nursery during business hours in peak season remain free to contact workers and meet with them away from the workplace.

Cedar Point will go down as a big and clean win for property rights. California’s law is no mere labor regulation: it grants a right to be on the owners’ land three hours per day for 120 days per year. Ending it respects the constitutional rights of both the property owners and union officials, who lose only the ability to trespass for a third of the year.

The Fifth Amendment’s Takings Clause provides, “nor shall private property be taken for public use, without just compensation.” Here, even though the state didn’t seize any property outright, the Supreme Court has long recognized that if a regulation “goes too far,” it’s functionally equivalent to the use of eminent domain.

The Court’s recognition here that state‐​sanctioned trespasses, even if not permanent and continuous, are compensable takings is a major victory for property‐​rights advocates who have toiled for decades to expand the universe of per se takings beyond the narrow scope of permanent physical invasions or total‐​value‐​loss regulations. While many property regulations remain subject to the Court’s self‐​described “ad hoc” Penn Central test, Cedar Point shows that two thirds of the current justices are inclined toward a categorical test when it comes to the fundamental attributes of ownership — such as the right to exclude.

As we described in our amicus brief, the right to exclude and other “sticks” in the “bundle” of Anglo‐​American property rights have been a part of the American vision of property since Jamestown. Indeed, Magna Carta enshrined that the state could confiscate private property for the public good only (and not merely to line the king’s pockets). The Framers, fearing the majoritarian impulse as much as that of any monarch, added the fairly novel provision that eminent‐​domain actions be compensated, lest private parties be forced to bear costs that, as the Court put it in 1960, in “all fairness and justice” should be borne by the broader public.

Courts since the Founding have emphasized that of course the state may regulate property to prevent private parties from inflicting public harms. But that’s not the case here. Nothing in the common law or the longstanding principles of California property and nuisance law suggest that Cedar Point’s refusal to allow union activists onto its property in any sense created a public harm.

California merely wanted to expand the rights of unions at the uncompensated expense of small businesses, two of which finally said enough is enough. The Pacific Legal Foundation, which represented the plaintiffs, presented their case masterfully. Not that it should have been a hard sell, were the Court not coming off of decades of incoherent takings precedents that seem to give ammunition to scholars and jurists of all interpretive proclivities. As Chief Justice Roberts correctly concluded his Cedar Point majority opinion, “The access regulation amounts to simple appropriation of private property.”

For more background and to read Cato’s brief, go here.

Commentary by Ilya Shapiro and Sam Spiegelman. Originally published at Cato At Liberty. This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

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