The Obscure Case That Could Blow Up American Civil-Rights and Consumer-Protection Laws

On Monday, the Supreme Court heard a case that focuses on obscure and technical points of property law, but has the potential to devastate major areas of law, such as rent control and civil rights. The case, Cedar Point Nursery v. Hassid, involves a decades-old California law that allows agricultural labor organizers to enter commercial farms in order to meet with farmworkers and educate them about their rights.

That law has been on the books since 1975, and agribusiness has hated it from the beginning. It grants farmworker labor organizers access to farmers’ property, though in an effort to minimize any impact their presence would have on the owners’ operations, it sets limits on when and where organizers can enter. Commercial farmers have repeatedly challenged the law, arguing that it violates landowners’ rights under the takings clause—the part of the Fifth Amendment of the Constitution stating that private property cannot be “taken for public use without just compensation.” Previous challenges to the California law have been uniformly rejected by state and federal courts, and the plaintiffs in Cedar Point failed to persuade any of the lower courts to invalidate the law. And yet, the farmers may now have found just the audience they need in the Supreme Court’s new 6–3 conservative majority.

If the Court does endorse the legal theory that the farmers advocate, the consequences could reshape American law for decades to come. This is because the theory rests on the dramatic claim that any government regulation allowing people not invited by the owner to enter private property is equivalent to the government installing a sidewalk or a pipeline on private land. The plaintiffs’ lawyers have claimed that the California regulation allowing labor organizers to access their land constitutes a “permanent physical occupation” of the owners’ property. The characterization seems far-fetched on its face. The right of access is not physical, except when organizers are actually present. Nor is it permanent—the organizers are there only occasionally. And even the abstract legal right of access is itself ephemeral, because it arises or disappears depending on how a farmer chooses to use a particular piece of land. If no farmworkers are present, there is no right of access.

The legal implications of the plaintiffs’ theory are hard to contain. By the farmers’ reasoning, government regulations that require owners to grant outsiders even occasional access to their commercial property, no matter how circumscribed, would amount to permanent physical occupation and would automatically violate the Constitution’s protection of private ownership against uncompensated expropriation. For example, federal civil-rights laws enacted to end Jim Crow segregation in private businesses that open their doors to the general public, such as restaurants and movie theaters, limit the power of business owners to exclude potential customers on account of their race, religion, or national origin. By the farmers’ interpretation of the Fifth Amendment, requiring an anti-Semitic hotel owner to rent a room to an orthodox-Jewish family would seem to amount to a permanent physical occupation of the hotel owner’s property by the government, because it requires the prejudiced owner to allow access to his property by people he would rather exclude for purposes other than engaging in a reasonable search. For the same reason, rent-control laws that obligate landlords to renew tenants’ leases or rent units out for lower prices than they would otherwise be able to charge might also count as “permanent physical occupations.”

That the Cedar Point case even found its way to the Supreme Court is an ominous sign. For decades, the conservative legal movement has eyed the takings clause as a potential vehicle for limiting the government’s regulatory powers. As described in a 1991 book by Charles Fried, one of Ronald Reagan’s solicitor generals, a group of conservative lawyers in the 1980s, led by then–Attorney General Edwin Meese, “had a specific, aggressive and … quite radical project in mind: to use the Takings Clause of the Fifth Amendment as a severe brake upon federal and state regulation.”

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The takings-clause project enjoyed some early successes. In a series of cases in the ’80s, the Supreme Court found that a regulation automatically constitutes a taking of property when it has the effect of depriving owners of all economically viable uses of their property, such as a zoning law that renders a lot totally unsuitable for development, or when it authorizes a “permanent physical occupation” of private property, such as a law requiring building owners to allow an energy company to install solar panels on their roofs. In all other cases, however, the Court has applied a test first articulated in the 1978 case of Penn Central Transportation Co. v. City of New York, which calls on courts to carefully weigh the nature and extent of the regulatory interference with private-property rights to determine whether a taking has occurred. The takings-clause project seemed to run out of steam in the early 2000s, when the Supreme Court began turning away from bright-line rules and steadily expanding the reach of Penn Central. Today, emboldened by Senate Minority Leader Mitch McConnell’s success in packing the federal courts, property-rights activists hope to harness the Supreme Court’s conservative majority to revive the project.