The Supreme Court resumes public hearings tomorrow, still using a remote process with everyone on the telephone because of the public health threat. (Cases to be heard in the April sitting will also follow that format, the Court has announced.) The first case for argument this week involves one of the longest-running constitutional fights but one that has many basic issues still undecided – the protection of private property rights. The audio portion will be broadcast on c-span.org/supreme court
Hearing starts at 10 a.m., and will last about an hour:
Cedar Point Nursery v. Hassid
Background: It is an oddity in the history of the U.S. Constitution that the Bill of Rights – the first ten amendments, added in 1791 – were written initially only to protect the rights of Americans against action by the federal government, but today almost all of the Bill of Rights also protect against state government actions, too.
That was done by the Supreme Court, in a process that began in 1897. It did so in a series of decisions reading into the Fourteenth Amendment (added in 1868) specific parts of the Bill of Rights. This is the doctrine of “incorporation.” The oldest of the rights that now curb state action through this process is the guarantee against government seizure of private property, unless the owner gets paid for it. (Part of the Fifth Amendment, now blended into the Fourteenth, it is called the Just Compensation Clause, or, sometimes, the Takings Clause.) And it is that clause that is at issue in next week’s first hearing.
Everyone, of course, understands that the owner of private property – be it a home or a business – can tell any unwanted visitor to “get off my property.” The government can be told that, too. However, if the government wants to “take” private property for a public use, it can do so – provided it pays “just compensation.” These basic concepts, though, are misleading: the government can sometimes put limits on property rights that fall short of totally eliminating the owner’s rights, it can sometimes take it for use by some other private entity, and it can sometimes impose limits without paying a cent. These complexities result from the field of “regulatory takings” – that is, government rules on how private property can be used.
The Cedar Point Nursery case now before the Court involves a claim of a “regulatory taking.” The state of California has long been known as sympathetic to labor union rights. At issue in this case is a state regulation that helps unions recruit agricultural workers as members. Without consent of the owners of farms or orchards, union organizers are allowed to enter the property to recruit. They need to file only a notice of their plan, and that enables them to go on the property for up to 120 days a year and spend three hours a day there.
Cedar Point Nursery is a grower of strawberry plants. Its property is in the small northern California town of Dorris, about 3 miles from the Oregon border. It has about 100 regular workers and about 400 it employs seasonally. Although union organizers have visited the nursery frequently during growing seasons, they have not had a great deal of luck in recruitment.
The nursery joined other growers in a constitutional challenge to the access regulation, arguing that it was an unconstitutional “taking” of property rights – specifically, the right to exclude unwanted visitors. (The nursery’s parent, Fowler Packing Co., based in Fresno, has faced charges based on that regulation for refusing access to union organizers; it joined in the case.)
A federal appeals court ruled that the property had not been physically “taken,” in the constitutional sense, because the organizers did not occupy Cedar Point’s property full time, 24 hours a day on all days throughout a year. Absent a complete denial of the right to exclude outsiders, that court declared, there was not a seizure of the property from its owner.
The questions before the Court: Is it unconstitutional for a state to give unwanted visitors a right to enter private business property, with no compensation for the owner, when the visits are limited in time? More broadly, when does a “physically taking” occur under the Constitution?
Significance: About a quarter-century ago, a new wave of activism by owners of private property swept across America, stirred up in part by perceptions that those owners’ rights were being increasingly compromised or denied, especially by urban renewal projects on land
taken by so-called “eminent domain” proceedings by local governments. (From the Latin Eminenes Dominium, the phrase “eminent domain” largely means the same as government takeover of private property for asserted public use.)
The new property rights movement already existed in 2005, but it got a particular push that year when the Supreme Court, in the case of Kelo v. City of New London, ruled that a Connecticut city’s government could take over the land under private homes in a working-class neighborhood and transfer it to the drug-making giant, Pfizer, Inc., for a new development project. The ruling made a national heroine of Susette Kelo, a paramedic who fought valiantly but unsuccessfully to protect her “little pink house” from being sacrificed.
Her story was celebrated in a popular book by author Jeff Benefit, The Little Pink House: A Story of Defiance and Courage, and in a highly acclaimed 2017 movie, The Little Pink House. And, in direct response to the Court’s ruling and to the story, more than 40 states put new restrictions on the use of eminent domain procedures.
Even so, the movement has not yet succeeded in getting the Supreme Court to clarify the multi-faceted issues in modern “takings” law. Roger Pilon, a noted libertarian scholar of the Constitution at the Cato Institute in Washington, D.C., has written that private property rights have been “seriously compromised…with the growth of modern government…Unfortunately, the Supreme Court has yet to develop a principled, much less comprehensive, theory for remedying those violations.”
Cedar Point Nursey and its parent company, in their new appeal to the Supreme Court, have asked the Justices to clear up a conflict among lower appeals courts about the scope of “takings” through uninvited entry of private property, but also to lay down a flat rule that, when such a visitor occupies property without the owner’s consent, that automatically results in a physical seizure of the property and compensation is thus due – no matter whether the occupation was limited in time. It is the takeover of the property, not its duration, that constitutes the violation, according to their arguments. The only thing that should vary, their brief argued, is the amount of compensation, which would depend on the degree to which the owner has lost control.
Their appeal has widespread support from friends-of-Court briefs from conservative and libertarian advocacy groups and business and agricultural organizations.
On the other side, labor organizers and civil rights groups and professors of property law have lined up, urging the Court to rule that a private business property has not been seized, for “takings” purposes, unless the site is occupied permanently and continuously by unwanted visitors.
Some legal scholars have suggested that the outcome of the case could be much wider than the facts in this particular case might suggest. For example, a quite alarmist op-ed column in last Friday’s Washington Post contended that a sweeping decision by the Court permitting exclusions from private property could undermine health and child safety inspections, and could even undermine civil rights and gay rights laws that bar restaurants and other public accommodations from excluding customers whose characteristics the owners do not like.
It is not apparent how the Court might find a middle ground between what appear to be polar opposite positions, but the core issue appears sufficiently difficult that a widely splintered decision would be no surprise.
On Tuesday, the Court will hear a case on the authority of Indian tribes’ police officers to arrest non-Indian suspects on public roads within a tribe’s reservation.