A Supreme Court clash between union organizing rights, private property, and the Takings Clause might end in broad new restrictions against unions and possibly government inspectors as well. The Los Angeles Times reports that today’s oral arguments in Cedar Point Nursery v Hassid revealed that a consensus emerged against a California union-access regulation as a constitutional violation:

The Supreme Court gave a skeptical hearing Monday to a California labor regulation that gives union organizers limited rights to go on to the private property of agribusinesses to encourage farm workers to join.

Most of the justices — conservative and liberal — agreed the “right to access” rule, adopted in 1975, appears to violate the property rights protected by the Constitution.

The case of Cedar Point Nursery vs. Hassid is being closed watched not only for its effect on unions and farm workers in California, but also on a host of federal, state and local laws that authorize inspectors to go into factories, warehouses, packing plants, office buildings or restaurants to check for health and safety violations.

The union and the state argue that the 1975 regulation has limits on access. Organizers can only operate on company property for four 30-day periods a year and only for three hours at a time. However, as Pacific Legal Foundation argued, Cedar Point Nursery only has limited operating times during the year, and that forced access interferes with their business operations — amounting to a government taking without compensation. They produced a video that shows the disruptive nature of the United Farm Workers’ demonstrations at Cedar Point, as well as Fowlers Packing Company, another party to the suit:

The uselessness of the limitations aside, it appears that the justices wondered whether they mattered at all. A taking is a taking, Justice Amy Coney Barrett seemed to imply with this analogy:

If a homeowner lived on a busy street corner, could the government give people “a right to protest on my lawn for three hours a day” because it would allow them to get out their message to those who driving by, asked Justice Amy Coney Barrett.

Of course, it’s usually a fool’s errand to guess outcomes on the basis of the Socratic method used by the Supreme Court in its oral arguments. However, Reuters got the same vibe from the panel during the exchanges, although they didn’t see as much consensus:

Supreme Court justices on Monday appeared ready to further curb the power of organized labor in the United States by rolling back a decades-old California regulation that lets union organizers enter agricultural properties without an employer’s consent.

The justices appeared sympathetic during more than an hour of oral arguments toward an appeal by two fruit companies in the most populous U.S. state seeking to halt enforcement of the California Agricultural Labor Relations Board regulation, which has been in place since 1975. The justices wrestled over how far they should go in bolstering the property rights of owners. …

Conservative justices, who hold a 6-3 majority on the court, seemed to agree that the regulation went too far. Chief Justice John Roberts asked questions that indicated the rule placed few limits on unions. Justice Clarence Thomas wondered how it would be different if the state commandeered a farm to train its police, even if only intermittently.

Liberal justices raised doubts that any regulation like California’s should always be considered unconstitutional, as the companies have asserted. They also expressed concern over how the case might affect other government authority over health and safety.

That latter point seems overblown. Government has a role in regulating the food-service industry on the basis of public safety, and those inspections rarely if ever impact or disrupt operations. Unions, on the other hand, are private entities, not government. By forcing businesses to submit to property incursions by other private entities in ways that are disruptive, the government is essentially seizing property for the use of another — although in Kelo, the Supreme Court infamously allowed that taking. However, they also had to compensate the owner for the seizure, where California provides no relief whatsoever to Ceder Point, Fowlers, or any other agribusiness.

Aaron Tang, a former law clerk for Justice Sonia Sotomayor, predicted the sky would fall if the court threw out the regulation:

The dispute threatens havoc just as great outside the union context. Consider state laws that permit child protection inspectors to make unannounced home visits. Now suppose a homeowner suspected of abuse or neglect wants to keep the inspector out. Under the challengers’ logic, such individuals would have a Fifth Amendment right to do so — unless the government paid the suspected abuser to access the property. The same problem would ensnare nursing home visits and food safety inspections.

Perhaps most glaring of all, the case threatens to blast a giant hole through the heart of anti-discrimination law. Federal law forbids stores, restaurants and other public accommodations to refuse service on the basis of a customer’s race. A number of states protect LGBTQ persons from similar discrimination.

Yet if Cedar Point creates a right to eject all “unwanted persons” from one’s property in the absence of a government payout, states and the federal government would face an impossible choice: raise taxes so that they can pay untold sums of money for every instance an LGBTQ person or person of color enters a storefront that belongs to a discriminatory owner, or call off the crucial project of eradicating societal discrimination.

On the other hand, Ilya Somin offered equally entertaining reductio ad absurdums to demonstrate the obvious nature of government-imposed trespassing:

If California prevails here, conservative “red state” governments can easily use the same power for their own ends. For example, they could use it to force abortion clinics to grant access to anti-abortion activists who seek to persuade patients and medical personnel that abortion is murder. They could also force businesses and other organizations that ban guns on their premises to give regular access to gun rights activists.  So long as the pro-lifers and gun rights advocates are “only” given access for a few hours per day, 120 days per year, they would fit within the Ninth Circuit’s reasoning that there is no per se taking when state regulations does not require property owners to give outsiders the right to “unpredictably traverse their property 24 hours a day, 365 days a year,” but instead merely mandates access for “360 hours a year out of a total 8,760 hours (and only 120 of those hours would be during the workday).” Clever lawyers (and state legislators!) can surely think of other ways to make use of such broad power to compel access to private property.

Given that the justices are not usually inclined to issue sweeping orders and blast giant holes, it seems much more likely that they will instead narrowly rule against the regulation without implicating government inspectors in the “takings” ruling. As far as private-property rights go, excluding people with contradictory commercial interests seems pretty straightforward; for instance, we allow McDonald’s to exclude people advertising for Burger King as trespassers, no? Should government force Outback Steakhouse to allow PETA to demonstrate three hours a day inside its restaurant on behalf of veganism?  If the UFW wants to organize Cedar Point, they can demonstrate outside of Cedar Point’s private property to do that.

We’ll know by the end of June which way the Supreme Court actually leaned. Perhaps we might find out sooner, but if this one goes to the mattresses between the two ideological wings of the court, expect it to come at the end of the session — and to have eminently readable opinions and dissents.

I interviewed Pacific Legal Foundation’s Joshua Thompson about this case on Friday on Relevant Radio, while guest-hosting the Drew Mariani show. You can listen to the second half of this podcast.





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