Supreme Court’s Cedar Point property rights decision protects both sides

Wednesday’s Supreme Court decision in Cedar Point Nursery v. Hassid, is a major victory for constitutional property rights. It ensures that, at least in most cases, the government cannot invade owners’ land — or authorize others to do so — without paying “just compensation,” as required by the takings clause of the Fifth Amendment.

Cedar Point involves a challenge to a California law requiring agricultural growers to give union organizers access to their property for three hours per day, 120 days per year. Long-standing Supreme Court precedent holds that a “permanent physical occupation” of property qualifies as a “per se” taking automatically requiring compensation under the takings clause. But the lower court ruled there is no per se taking here 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.”

The Court could easily have ruled in favor of the property owners simply by holding that an occupation need not be literally continuous in order to be permanent. But Chief Justice John Roberts’s opinion for the Court goes a step further, holding that — as a general rule — “a physical appropriation is a taking whether it is permanent or temporary.”

The Court’s decision is backed by both legal reasoning and simple common sense. As Roberts emphasizes, “[t]he right to exclude is ‘universally held to be a fundamental element of the property right’” in land. That principle has been recognized by a long line of Supreme Court decisions and by jurists and legal commentators all the way back to the Founding and beyond. A serious violation of the right to exclude qualifies as a taking, if anything does.

Legal theory aside, most people readily recognize that the government has taken away a major part of your property rights when they require you to allow strangers to repeatedly enter your land without your consent. And that’s true even if the trespassers only stay for a limited time. As Justice Amy Coney Barrett pointed out during the oral argument in this case, California’s position would have allowed the government to require homeowners to permit protest demonstrations on their front lawns, so long as the protests last less than three hours per day, 120 days per year. Even a much shorter state-imposed front-yard protest still counts as a “taking” of the homeowner’s property rights, under any plausible definition of the word.

In a dissent joined by all three liberal justices, Justice Stephen Breyer argues that the California regulation “does not ‘appropriate’ anything,” but merely “regulates the employers’ right to exclude others.” Therefore, he claims the regulation should not be considered a per se taking, but should instead be subject to a complex balancing test created by the Supreme Court’s 1978 Penn Central decision, the currently established framework for most takings claims, where there is no physical invasion of property. The Penn Central test is notoriously vague and manipulable, and overwhelmingly favors the government.

Breyer’s approach makes little sense. We can use clever wordplay to describe virtually any state-mandated invasion of property as merely “regulating” the right to exclude, as opposed to “appropriating” it. But that kind of sophistry is the sort of thing that understandably leads many people to hate lawyers. The government could use the same reasoning to justify mandating that homeowners allow demonstrations on their lawns, or college fraternity parties in their backyards. As Roberts put it, “[w]e cannot agree that the right to exclude is an empty formality, subject to modification at the government’s pleasure.”

The union-organizer context and the 6-3 split on the Supreme Court, with all three liberal justices in dissent, may lead many to view Wednesday’s ruling through a left-right ideological lens — but that should be resisted. Had California prevailed, state governments would have had broad power to mandate “temporary” trespasses on private property. As I have pointed out previously, conservative state governments can abuse that power just as easily as liberal ones. The latter could, for example, create mandatory access rights for pro-life activists to enter abortion clinics. It is also far from clear that a victory for California would have benefited farm workers. Such a win might well have led growers to hire fewer such workers or offer lower pay and benefits, in order to offset the costs of disruption.

Wednesday’s decision does not mean all government-mandated entry on private property qualifies as a taking. The court lists several exceptions to its general rule, including most “health and safety” inspections, and enforcement of regulations that bar owners from violating common law rights of others (as by creating a nuisance). The former are justified as conditions for the conferral of various government benefits; the latter because the owner doesn’t have a right to violate others’ property rights in the first place. The scope of these exceptions isn’t entirely clear and will likely be a subject of future litigation.

Even some regulations that do qualify as takings under today’s decision may not be much impeded by it. If the invasions they authorize impose little cost on owners, the government will not have to pay much in the way of compensation.

Despite these uncertainties and limitations, Cedar Point is a major step forward for constitutional property rights. Americans across the political spectrum have reason to be happy the Court denied the government sweeping power to mandate uncompensated invasions of private land.

Ilya Somin is a professor of law at George Mason University and author of “Free to Move: Foot Voting, Migration and Political Freedom” and “The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.” His wife, Alison Somin, is an employee of the Pacific Legal Foundation, which represents the property owners in the Cedar Point case. She is not personally involved in the case. Follow him on Twitter @IlyaSomin.