None other than Chief Justice John Roberts himself led the way to rewrite decades of labor history, with a 6-3 decision by the court's conservatives using the Fifth Amendment's "takings clause" to deny unions the right to speak to workers on company property...but only unions. You know, not health inspectors or other government officials.
Before Wednesday, the Court distinguished between two different types of violations of the takings clause. “Per se” takings involved unusually severe intrusions on private property — such as if the government strips a plot of land of all of its economic value — and were treated with particular skepticism by courts. Less severe intrusions, meanwhile, were classified as “regulatory” takings.
Property owners subject to a per se taking nearly always prevail in court, while property owners alleging a regulatory taking are much less likely to succeed — even when the government imposes fairly strict limitations on how they can use their property. In one famous regulatory takings case, the Court upheld a New York City law preventing the owners of Grand Central Terminal from constructing a high-rise office building on top of the station.
Because the Court views per se takings with such extraordinary skepticism, past decisions held that very few intrusions on private property qualify as such. A per se taking did not occur unless the government deprived a property owner of “all economically beneficial or productive use” of their property, or subjected the property owner to a “permanent physical occupation” of their land.
Thus, California’s regulation did not qualify as a per se taking prior to Cedar Point, as the presence of union organizers does not strip a worksite of all of its economic value, and the regulation did not allow those organizers to permanently occupy a worksite. It only allowed them to enter the property for three hours a day, and for only about a third of the year.
Roberts’s opinion didn’t eliminate this distinction between regulatory and per se takings altogether, but it significantly blurred the line. Under the new rule announced in Cedar Point, any law or regulation that “appropriates a right to invade” private property amounts to a per se taking. If California allowed union organizers to enter an employer’s land for a single minute, then California committed a per se taking.
“The right to exclude is ‘one of the most treasured’ rights of property ownership,” Roberts writes. And much of his opinion suggests that any intrusion on this right to exclude amounts to a taking.
But then Roberts’s opinion takes an unusual turn, in an apparent effort to ward off some of the radical implications of its expansive vision of per se takings.
Roberts isn’t willing to live with the implications of his opinion for cases that don’t involve unions
One problem with Roberts’s expansive view of the takings clause is that it could prevent the government from performing very basic functions, such as health and safety inspections.
Suppose, for example, that a restaurant has a disgusting, rat-infested kitchen that violates numerous local health ordinances. The restaurant’s owners obviously do not want these violations to be discovered, so they refuse to admit any government health inspectors. Under Roberts’s reading of the takings clause, it’s not clear why the restaurant owner should not be allowed to do so — or why it shouldn’t be able to, at the very least, demand compensation from the government before health inspectors can be allowed on their property.
After all, if “the right to exclude is ‘one of the most treasured’ rights of property ownership,” why should an employer be allowed to exclude union organizers but not health inspectors?
Indeed, as California warned in its brief, the expansive vision of the takings clause laid out in much of Roberts’s opinion “would also imperil a wide variety of health- and safety-inspection regimes” (including “food and drug inspections, occupational safety and health inspections, and home visits by social workers”) as well as a federal law providing that “underground mines must be inspected ‘at least four times a year.’”
Roberts’s opinion recognizes that it would be untenable to hold that health and safety inspections violate the Constitution, so he carves out a special rule allowing such inspections to stand. “The government may require property owners to cede a right of access as a condition of receiving certain benefits,” such as a license to operate a business, Roberts writes, so long as that condition “bears an ‘essential nexus’ and ‘rough proportionality’ to the impact of the proposed use of the property.”
Those are some very large and very vague words, and it’s not entirely clear what it means for an inspection requirement to be roughly proportional to “the impact of the proposed use of the property.” Nor is it clear why, if the government can require restaurants to admit health inspectors as a condition of doing business, it can’t also require that restaurant to admit union organizers as a condition of employing workers.
It's a brutally clunky decision, and it only serves the purpose of busting unions. As with the Hobby Lobby decision, it'll be up to the courts to determine who and what qualifies for exemptions and who does not in the future and that of course will be determined by Trump-appointed judges and the 6-3 Roberts Court.
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