The Right to Exclude: The Supreme Court Delivers Haymaker Reversal of the Ninth Circuit In Major Takings Ruling

While not one of the matinee cases often discussed in the press, the Supreme Court handed down a major ruling this week on takings under the Fifth Amendment. In a 6-3 decision that broke along ideological lines (a departure from a long line of unanimous or non-ideological rulings), the court ruled in Cedar Point Nursery v. Hassid that a California law was a takings under the Constitution. As I mentioned yesterday, I expect to be teaching this case in the fall and it represents a very significant new precedent in the area.

Cedar Point addressed a California law requiring agricultural growers to give union organizers access to their property for three hours per day, 120 days per year. The question is whether such required periods of access constitutes a “per se” takings covered in past Supreme Court precedent dealing where the Court has focused on “permanent physical occupations” of property.

For those seeking an expansion of takings protections, the United States Court of Appeals for the Ninth Circuit created a perfect opportunity with a sweeping and poorly conceived opinion that ignored countervailing precedent. It found that there was no violation 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.”

Chief Justice John Roberts pounced on the sweeping generalization:

“That position is insupportable as a matter of precedent and common sense. There is no reason the law should analyze an abrogation of the right to exclude in one manner if it extends for 365 days, but in an entirely different manner if it lasts for 364.”

Roberts then used the opening from the Ninth Circuit to drive through a major new holding structured around the right to exclude:

“The right to exclude is “one of the most treasured” rights of property ownership. …According to Blackstone, the very idea of property entails “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” 2 W. Blackstone, Commentaries on the Laws of England 2 (1766). In less exuberant terms, we have stated that the right to exclude is “universally held to be a fundamental element of the property right,” and is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” … Given the central importance to property ownership of the right to exclude, it comes as little surprise that the Court has long treated government-authorized physical invasions as takings requiring just compensation.”

In his dissent, Justice Stephen Breyer insisted that the California regulation “does not ‘appropriate’ anything,” but merely “regulates the employers’ right to exclude others.” His approach would allow the government to force access to others on private property for shorter periods without the protection of Takings Clause.

The decision is a huge victory for those who favor a robust Takings Clause.

36 thoughts on “The Right to Exclude: The Supreme Court Delivers Haymaker Reversal of the Ninth Circuit In Major Takings Ruling”

  1. You said: 3 leftist on the court ignoring the clear language and intent of the constitution. Isn’t that the definition of a leftist?

  2. This is not a political ruling. Except for the leftist.
    3 leftist on the court ignoring the clear language and intent of the constitution. Private Property Rights are one of those foundational truths that allow the United States to be the greatest Nation on earth. Leftist on the court destroy that basic protection for what exactly? Unions? Unions aren’t even mentioned in the constitution.
    This is why the Dems want to pack the court. To advance an agenda the People want no part of.
    Compare this to the SCOTUS Kelo decision. After the atrocity of Kelo, States across the land passed their own laws. Making clear that govt cannot take private property just because it ‘might’ make things better. No state is going to pass legislation that would allow the Union preferences to continue. Because you cant craft that legislation without stripping enumerated rights from citizens.
    While Kelo was horrendous, it might be the needed wind, added to the glowing coals of federalism. States finding their constitutional power to govern, and overturn bad federal policy. Its happening right now, in a different area. States across the union are sending Law Enforcement personnel to Texas, to help the state slow the flow of illegal aliens into the Nation. States joining together to fight against a Federal govt that is refusing to enforce the laws of this great land.
    Parents demanding they decide what is taught in schools, not the federal education bureaucracy. Citizens flooding city council meetings to let the elected puppets know they are not in charge, the people are in charge.
    Its been an ugly first 160 days, but the people are responding.

    1. In one talk I heard Breyer state that sometimes a SC Judge has to do what is right (what he presumes right) rather than follow the exact words of the Constitution.

      In another talk I heard Sotomayor say that she was needed on the court because of her hispanic perspective.

      Neither of them seemed to know what the job of the SC was.

      SC Justices are there to uphold the Constitution and the rights of states and citizens. It is the duty of the legislative branch to correct those problems that the Constitution doesn’t address.

  3. This is a pure union busting ruling and the property taking arguments are complete bull.

    1. MollyG, I’ll be over to your house tonight for three hours and I’ll show you all the Fox News on my tablet. You don’t have to watch or listen but I will show up on 120 days out of the year anyway. I’m sure it won’t disturb your family life at all.

      1. Thinkitthrough:

        Don’t forget your bullhorn and 99 of your buddies. And print leaflets to shove at them for 360 hours each and every year.

      2. You absolutely nailed it. I am going to write your logic down for future arguments. Thanks from Lithuania.

    2. Unions are “busted” as other criminals are “busted.”

      A union is a criminal enterprise which must employ violence to achieve its goals.

      The communist (liberal, progressive, socialist, democrat, RINO) Supreme Court approved the violence of criminal trespass on private property.

      Unions are afforded no rights, freedoms privileges or immunities in the Constitution and Bill of Rights.

      Unions are the antithesis of American freedom.

      Private property free enterprise owners have the freedom and right to hire, direct, pay and fire employees.

      Individuals have the freedom and right to accept or reject employment.

      In the most antithetical and anti-American example, public school, independent designers and engineers of curricula are the “talent.”

      The faux success in public education comes in the form of gifted students who actually require very little from teachers.

      Teachers are not dissimilar to assembly line workers who constantly repeat the same activities and whose product is equal to the tools and materials they are provided.

      The pseudo-image of superior, “untouchable” teachers-on-pedestals is the false and fraudulent product of a prodigious public relations campaign by the criminal

      teachers unions, which is approved and allowed by corrupt elected officials who are charged with effectively managing the education of the captive students in the

      compulsory public school collectives.

      The Department of Education is irrational and unconstitutional, and all teachers unions must be decertified.

      Education is local.

  4. I am happy to hear of this decision. I live in CA. I have family and friends in agriculture and ranching in various states. Unions were aggressive, intrusive, and in some cases, threatening. They push in and intrude on time sensitive jobs, like packing fruit that has to get out on the trucks ASAP.

    In some cases, unions have behaved like organized crime, especially in their behavior towards Scabs, or those who won’t join a union.

    Here’s a video by Mike Fahner of Cedar Point on his perspective.

    It’s hard enough to farm in CA, with the water wars, without organized crime, I mean Unions, pushing their way in and yelling at your workers on bullhorns.

    This isn’t Upton Sinclair’s The Jungle. There are already many worker protections in place. This behavior does not create a healthy partnership between worker and employer. It’s purely adversarial. It’s about power.

    1. Note that the CA law gave Unions access to the property for 3 hours a day, 120 days a year. That’s the growing season. That’s 3 hours of bullhorns, yelling, and interfering with the work process. Every day for 120 days. The sheer volume of hours farmers are subjected to invasive Unions was not mentioned in most of the coverage of this case.

      That 1975 CA Agricultural Labor Relations Act arose from the Salad Bowl strike. This was essentially a beef between Teamsters and UFW quarreling, sometimes violently, over who had access to farm workers in the fields. Both of these unions engaged in intimidation and violence, with the farmers squashed in the middle. All the violence in the fields, the disruption of the entire state’s agriculture, and the arrests, led to quite a bit of anti-union sentiment among farmers. I suppose the only good that came out of it is that it forced the two organized crime, ahem, unions, to divide which agricultural workers they were going to target rather than literally fighting each other over the same workers.

      Guess who passed the law? Governor “Moonbeam” Jerry Brown. The gift that just keeps on giving.

      CALRA tried to expand to include stable hands at race tracks. Can you imagine bullhorns and yelling around high strung thoroughbreds for 3 hours a day? It would have caused bolting.

      Who has 3 hours a day, for 120 days, for this?

      Chief Justice John Roberts: “The upshot of this line of precedent is that government-authorized invasions of property—whether by plane, boat, cable, or beachcomber—are physical takings requiring just compensation… As in those cases, the government here has appropriated a right of access to the growers’ property, allowing union organizers to traverse it at will for three hours a day, 120 days a year.

      1. Imagine if a hundred people burst in to your workplace, 3 hours a day, for 120 days each and every year. That’s 360 hours of yelling, bullhorns, and disruption, every single year, whether you’re under a time deadline, having a meeting, or whether it’s just really inconvenient.

        It’s as if they’re trying to just run farmers out of business. Maybe they’ll “help” these workers right out of a job, when their employer folds up and goes out of business.

      2. Karen S- Informative and interesting comment. I was not aware of those events. My own early experiences with unions in a very different environment was not happy and I came to see them as little better than organized crime syndicates helping themselves far more than they helped workers.

        1. Thanks, young. I have come to view the Unions in a similar light, from their behavior in multiple industries.

        2. Young add to that many teachers unions that didn’t give a darn about the children. Some of them sound like hateful people.

    2. The ruling does not depend at all on how intrusive or loud the unions reps are or are not. The argument that ruling otherwise would force unions to disrupt the work place is a lie. This ruling kicks off all unions reps, no matter how quiet they are.

  5. “You can’t handle the truth!”

    – Colonel Jessup

    You can’t handle the scope and breadth of individual American freedom.

    You can’t handle the fact that you have no dominion over free individual Americans.

    The Constitution provides maximal freedom to individuals as it severely limits and restricts the infinitesimal and minimal, not tyrannical, parallel self-governance.

    You favor the dictatorship of the proletariat.

    The sole charge and duty of the judicial branch is to assure that actions comport with statutory and fundamental law.

    The judicial branch has no power to legislate, modify legislation, to modify legislation through “interpretation,” or to modify legislation through precedence.

    The law which bears here is the 5th Amendment right to private property, which is not qualified by the Constitution and is, therefore, absolute.

    No level of government, federal, state or local, has any power to “claim or exercise dominion” over private property, to do so would nullify the very Constitution, providing dominion to chaos, in a society of laws.

    No superior rights, freedoms, privileges or immunities are provided to several groups of citizens, and the absolute right to private property prevails over any and all other rights of individuals, with the sole exception of law enforcement in possession of probable cause.

    The unassailable right herein is the absolute right to private property, which is that of only the property owner.

    5th Amendment

    No person shall be…deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  6. There is no “long line” of any non-ideological cases here, Turley. More of your partisan hype and effort to pre-defend the SCOTUS for the big-ticket items to come. As usual, the Republican judges do everything possible to encumber the rights of workers to form and benefit from union membership, so they can have little to no bargaining power. No surprises here. There was no “taking” involved here. Justice Breyer got it right: regulating the “right” to exclude others is not a “taking” under the Constitution.

    1. The rights of workers to form a union was not infringed under this ruling. The ruling firmly states that a private property owner has the right to exclude anyone from their property. The unions can hand out their leaflets, talk to employees, or whatever outside the property boundary. You have reached into nuttiness territory here. But not for the first time.

    2. There are no republican or democratic judges in spite of the propaganda espoused by the politicians and media. Nominated by republican or democratic presidents, yes, but haven’t yet seen any that don’t apply the law. Regarding the decision, yes, “taking” of the private party was involved in as much as it allows trespassers to deprive the private owners of their labor. Labor organizers are not inhibited in any way as they can huddle at the entrances and exits where employees come and go and try to make their case. Forcing an owner to surrender the use of his property to any government mandated cause is taking.

  7. Good decision. Property rights are part of the DOI’s three legged stool.

  8. This is a surprisingly good decision, in the direction of individual liberty and pushback from governmental overreach

    As a legal theorist in libertarian law, I can only hope that this and a few recent SCOTUS decisions are a trend in the right direction.
    Protections under the takings clause have too long been toothless under the law, and been one of the major encroaches of government intrusion over private life.

  9. Justice Holmes must have risen from the ranks of the Ninth Circuit Court reading the posts just made.

    Rights are not about Left/Right….they are about the Constitution and established Precedent.

    The Decision was not “anti-union” as claimed….beyond a Union being supported and enabled by the Federal Government in violation of landowners property rights.

    I as a land owner have the constitutional right to enjoy the full benefit and enjoyment of privacy upon my property to include any unlawful taking of any of that property and enjoyment.

    The Union in this case has every opportunity to make contact with workers OFF the landowners property.

    There is no demonstrable need for the Union to be able to come onto the privately owned property to make contact with the workers.

    The Workers are free to contact the Union at anytime they wish… of the property.

    Nothing in this decision harms the Worker/Union relationship.

    Once again the Leftist Ninth Circuit has yet another Decision overturned by a solid majority of the SCOTUS.

    Why are they not embarrassed to have the claim to fame of being the most over-turned Appeals Court in the Nation…..year after year after year?

    In the next Republican Administration I hope the President shall do away with the Ninth Circuit….wait six months and re-create the Court and nominate Judges that look to the Constitution for its decisions so we can be done with the current bunch of Leftist Jurists that sit on the Court extant.

  10. Obviously the only consistent decision to align with Rights ALL posses and the constitutions seeks to protect the people, from the government, by specifically prohibiting government actions. This addresses legislative actions, selecting one tiny segment of the economy, license to violate rights of private citizens. Why corporations were deemed special enough to have been granted this license is a mystery to me.

    1. It’s is anti union. Don’t need to howl. Just need to read and understand.

      1. “It’s is anti union.”

        So trespassing is illegal — unless you’re a union member.

        I don’t think the law is supposed to work that way.

      2. Justice Holmes – logical fallacy of the false dichotomy.

        You do not need to allow Unions access to your private property 3 hours a day, for 120 days a year, complete with yelling, bullhorns, and other disruptions, in order to avoid being labeled as anti-union.

        That is a seriously excessive, disruptive level of access. Imagine if a hundred people barged into your workplace, 3 hours a day, for 120 days, each and every year, yelling on bullhorns. If you object you’ll face ad hominem like accusations of not caring about your workers.

        It’s insanity.

  11. Lefties really want to regulate every portion of our lives.

    Conservatives used to be just as intrusive, but learned better ways.

    I hope that Lefties will also learn to step back from overreach.

    But I am not sanguine. Intrusion is in their DNA.

    1. Let me see…the right wing tells women what they can do with their bodies. The right wing supports drug testing of anyone taking federal assistance but not Congress members. The right wing is fine with investigating “liberal” college students and “liberal” professors. The right wing wants religious privilege and government sanctioned discrimination. The right wing wants to stop people from voting.

      I’d say the right wing is pretty intrusive but of course they only want to intrude on people who disagree with them..women, minorities, poor, working class. Give me a break.

      1. Dang, by choice you misinterpreted every single one of those issues. Hard to do, but you managed it. SCOTUS made the right decision here to protect property ownership.

      2. JH:

        ” … the right wing tells women what they can do with their bodies.”
        Well, if it makes you feel any better, the “right wing” also tells men what to do with their bodies. You know like the law that stops men from using their bodies to kill innocent life. So it’s equal “injustice” in your eyes, I guess.

      3. Every law commands exactly what every “person” can and can not do with their bodies. There is nothing different in this way about abortion laws. If you don’t like your state’s abortion laws, move to a state with abortion laws you prefer. Vote with your feet you lazy slob.

Comments are closed.