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.
Thursday, June 24, 2021
Missouri is at risk of losing $4.5 billion in tax revenue and federal funding for Medicaid because of a fight between lawmakers over contraceptives.
At issue is a state tax on hospitals, doctors and other health care providers that is used to draw down billions of dollars in federal funding for the government health insurance program, which covers children, low-income adults and people with disabilities.
The Republican-led Legislature adjourned last month without reauthorizing the tax after fighting over whether to include a ban on Medicaid coverage for “any drug or device approved by the federal Food and Drug Administration that may cause the destruction of or prevent the implantation of, an unborn child.”
Federal law requires Medicaid programs cover family planning.
The tax expires Sept. 30.
Republican Gov. Mike Parson has said he’ll start cutting the state budget if lawmakers don’t reup the tax by the start of the next fiscal year, July 1.
Now, three states, NC, AK, and TX, have already made cuts to contraception coverage in Medicaid. NC and AK allow insurers to provide plans without coverage of family planning, and Texas doesn't mandate coverage of emergency contraception at all.
But the Missouri GOP bill would in fact ban Medicaid from covering any birth control, IUDs, or any female contraception options. It's monstrous.
This is the future the GOP has in store for women, robbing them of their bodily autonomy the second their wombs become involved, and a government that can successfully revoke Medicaid coverage for birth control can revoke all insurance coverage for birth control.
Or for, you know, anything else.
In his continued push against the “indoctrination” of students, Gov. Ron DeSantis on Tuesday signed legislation that will require public universities and colleges to survey students, faculty and staff about their beliefs and viewpoints to support “intellectual diversity.”
The survey will discern “the extent to which competing ideas and perspectives are presented” in public universities and colleges, and seeks to find whether students, faculty and staff “feel free to express beliefs and viewpoints on campus and in the classroom,” according to the bill.
The measure, which goes into effect July 1, does not specify what will be done with the survey results. But DeSantis and Sen. Ray Rodrigues, the sponsor of the bill, suggested on Tuesday that budget cuts could be looming if universities and colleges are found to be “indoctrinating” students.
“That’s not worth tax dollars and that’s not something that we’re going to be supporting moving forward,” DeSantis said at a press conference at a middle school in Fort Myers.
University faculty members have worried the new measure could create a chilling effect on their freedom of speech. Democratic lawmakers also have argued the bill might allow politicians to meddle in, monitor and regulate speech on campus in the future.
DeSantis, however, said the intent of the measure is to prevent public universities and colleges from becoming “hotbeds for stale ideology.”
“It used to be thought that a university campus was a place where you’d be exposed to a lot of different ideas,” DeSantis said. “Unfortunately, now the norm is, these are more intellectually repressive environments. You have orthodoxies that are promoted, and other viewpoints are shunned or even suppressed.”
The governor did not name specific state universities or colleges with this problem. He was broad in his accusations about the higher education system and used vague anecdotes to justify the need for such a survey.
For instance, the governor said he “knows a lot of parents” who are worried that their children will be “indoctrinated” when they go off to college, and that universities are promoting “orthodoxies.” But he did not offer specifics on those claims.
Officials at some of the state’s major universities, including Florida State University and Florida International University, did not immediately respond to requests for comment on the governor’s claims.
The University of Florida issued a statement that upheld the Gainesville-based school as a “marketplace of ideas where a wide variety of opinions are expressed and independent inquiry and vigorous academic deliberation are valued.”
“We believe the survey will reflect that, and we look forward to widespread participation across campus,” the statement said.
But in what appeared to be a coordinated effort, Senate President Wilton Simpson, R-Trilby, and House Speaker Chris Sprowls, R-Palm Harbor, slammed universities for lacking a “diversity of thought.”
Simpson, speaking at a state university system’s Board of Governors meeting on Tuesday in St. Petersburg, said there appear to be “socialism factories” in the state’s public university system.
“We always hear about the liberal parts of the university system, and we don’t hear so much of that from the college system,” Simpson said.
Sprowls echoed some of that sentiment at the governor’s press conference.
“As the governor said, we are at great risk, as a nation and as a state, on the lack of intellectual diversity that is on our university campuses,” Sprowls said. “We have decided that one ideological standard will win the day, but the thing is we’re losing because we’re not having real conversations.”
In addition to the survey, the measure DeSantis signed into law will bar university and college officials from limiting speech that “may be uncomfortable, disagreeable or offensive,” and will allow students to record lectures without consent for educational purposes or to support a civil or criminal case against a higher education institution.
When debating the bill on the Senate floor, Rodrigues said students should be able to “shed a light” on wrongdoing in a classroom. Professors, however, would have civil cause of action against any student — whether they are an adult or a minor — if they publish the recording for any other purpose.
DeSantis did not go into all the details of the bill, but lauded it in broad terms, saying it will allow “robust First Amendment speech on our college and university campuses.”