On Monday, the Supreme Court heard oral arguments for Cedar Point Nursery v. Hassid, a case regarding a California regulation that allows union organizers onto private farm property 120 days a year for three hours a day.
The regulation specifies that organizers must not be disruptive and only speak with workers in non-working hours. As PRI’s Kerry Jackson recent wrote of the case on Right by the Bay, that is not what happens in practice. The details in this case include bullhorns being used, employees feeling threatened, and blatant governmental intrusion of property rights.
At the outset, it appears precedent from a 1956 case, NLRB v. Babcock, would set up Cedar Point Nurseries for a clear win. In Babcock, the Court ruled that union organizers cannot distribute union literature in company owned parking lots. Because organizers can communicate with employees in places other than work, employers are not obligated to let organizers use private company property to organize.
During oral arguments, Justice Kavanaugh bluntly stated that Pacific Legal Foundation’s Joshua Thompson, the counsel for Cedar Point, would win under Babcock.
Interestingly, Mr. Thompson chose not to use Babcock as a basis for his argument. Instead, he argued that the California regulation amounts to a physical taking of property which requires just compensation under the Fifth Amendment. Babcock dealt only with the statutory interpretation of the National Labor Relations Act (NLRA) and avoided the constitutional issues surrounding the U.S. Constitution’s Takings Clause.
The Takings Clause from the Fifth Amendment states: “nor shall private property be taken for public use, without just compensation.” The Supreme Court has traditionally ruled that permanent physical intrusion of property by the government (or authorized by it) counts as a taking under the Fifth Amendment. So really, the question here is whether the California regulation constitutes a permanent physical invasion.
In Justice Roberts’ questioning of Michael Mongan, California’s solicitor general, the Justice asked whether more than one union could apply for access under the California regulation. Mr. Mongan replied that while it has not been the case in practice, it could happen theoretically. If one union can apply for access 120 days a year, just 3 unions would mean access is granted to the property 360 days a year.
As Justice Barrett noted during her time, both sides had issues with where to draw the line on how their arguments might affect other areas.
For example, Justice Thomas asked Mr. Mongan, “could this regulation be used to train the National Guard or state police, even if they were just exercising and leaving the employees alone?” Mr. Mongan could not provide a sufficient answer—even when Justice Sotomayor gave him a second chance to distinguish the difference during her time.
In classic Thomas fashion, his one illustration neatly exemplified exactly why the California regulation is not only onerous, but dangerous for property rights on a broader level.
Justices Roberts and Breyer expressed concerns that if the court holds that the California regulation constitutes a per se taking under the Fifth Amendment, then it could affect the constitutionality of standard governmental safety checks at, for example, nuclear power plants or coal mines.
Mr. Thompson reasoned that the subtext from the Fourth Amendment’s “right of the people…against unreasonable searches” clause implies that the government has a right to reasonably search and seize. Thus, the safety checks fall under the Fourth Amendment, while the California regulation falls under the Fifth Amendment’s Takings Clause.
Reading the tea leaves based on the questions from each justice, it seems that Justices Thomas, Gorsuch, and Alito are leaning in favor of the Cedar Point petitioners. Justice Breyer clearly favored the respondents in his questioning. The remaining five Justices were more nuanced in their questioning.
The final decision from the Supreme Court will arrive early this summer.
McKenzie Richards is a development associate at the Pacific Research Institute.