SCOTUS is getting ready to answer a fundamental question about property rights in the United States. At the core of Cedar Point Nursery v. Hassid is the question property ownership in not only the physical sense but in the sense of time as well. If a government regulation requires you to allow completely unwelcome people, who you would just as soon expel forcibly, onto your property for 3 hours a day 120 days a year, is it still your property? Or has the government taken a part of it per se? Not in square feet neccessarily, but in time, hours and days instead of inches and feet. The picture above
The left (namely Vox, no I’m not linking it) is calling this a “union-busting” case, framing the case as “an attack on unions” and using scare tactics that a win for the property oweners “could bar health inspectors from inspecting restaurants.”
According to SCOTUS Blog,
“The Supreme Court heard oral argument on Monday in a clash between property rights advocates and union organizers. The dispute in Cedar Point Nursery v. Hassid centers on a nearly half-century-old California regulation that allows union organizers to enter the property of agriculture businesses to speak to employers about supporting a union. The two California businesses challenging the regulation argued on Monday that the regulation violates the Constitution’s Fifth Amendment, which bars the government from taking property without compensation.”
The left, and the State of California (shocker) and several Amicae (friend of the court) briefs have attested that a ruling in favor of the property owners would bar the government from performing “routine health and safety inspections”. However, attorney Joshua Thompson was quick to shut down that notion “telling the justices that because the government had the power under early English and American law to “undertake reasonable searches,” property owners cannot bar the government from entering their property to conduct such searches.”
SCOTUS Ruling Against Could Cost California MILLIONS
California is most likely concerned because a ruling against them and for the business owners could require they compensate the owners for the amount of time the Union representatives are required to be admitted.
Michael Mongan, the solicitor general of California, focused on the limitations of time that union organizers are allowed onto the company’s properties 3 hours per day for 120 days out of a year. Mongan focused with Justice Stephen Breyer on the point that the time access would be allowed is not “a classical easement” rather “It is a regulatory scheme that applies to a particular type of business conducted on the land, and the access,” Mongan contended, “is not to a particular pathway or parcel” but instead “to the employees, where they are.” .
Thompson told the Supreme Court that because the regulation forces the businesses to give union organizers the right to enter and stay on the businesses’ property, it is a “taking.” He continued that the only reason the amount of time unions are permitted under the statute to be on the businesses’ property is relevant is to gauge how much compensation the businesses would be entitled to.
It Doesn’t Matter If Its A Time Or A Place
Rather than arguing about what amount of time constitutes the equivalent of a property “easement” or a “taking” under the law, SCOTUS Court Justices Kavanaugh and Sotomayor pressed a point that a comprehensive ruling might not be neccessary. Rather existing case law may hold the answer. SCOTUS Blog wrote,
“In 1956, Kavanaugh observed, in NLRB v. Babcock & Wilcox, the Supreme Court ruled that an employer’s right to exclude union organizers from its property must yield when employees would be otherwise unreachable through normal channels. You’re asking us, he told Thompson, “to reinvent the wheel” when the growers would likely win under Babcock.”
Even if the existing case law wins out, which with the suprising agreement of predictably leftist Justice Sotomayor, that would be a huge winner for business owners, preventing Union organizers from strong-arming them for “access” to their private property without compensating the owners. But the far better outcome would be a ruling that identifies time a property is occupied as Justice Kagan questioned that the denial of a right to exlude people from “counts as a discrete interest in property”.
If SCOTUS rules this is true, than this could potentially have far-reaching implications for many types of businesses, such as landlords who have been required by the government to allow non-paying tenants to occupy their private property due to COVID19. After all, under the Fifth Amendment’s taking clause reads “nor shall private property be taken for public use, without just compensation.”, therefore, if a government is forcing the occupation of a private property by persons against the will of the owner in the interests of the “public good”, doesn’t that work out to being “public use”?
The aftershocks of this ruling, expected this summer will reverberate through America for decades. In the age of rising Democratic-Socialism we cannot ignore this full-frontal assault on our private property rights. Remember this case name: Cedar Point Nursery v. Hassid this is one to watch.
