Check this out, the latest from lawprof Lee Anne Fennell, her thoughts on the Supreme Court's Cedar Point decision, "Escape Room: Implicit Takings After Cedar Point," forthcoming in the Duke Journal of Constitutional Law & Public Policy.
Here's the abstract:
In the June 2021 case of Cedar Point Nursery v. Hassid, the Supreme Court held that a California regulation that gave union organizers limited access to agricultural worksites (three hours a day, 120 days a year) amounted to a per se taking. The Court further opined that any governmental grant of physical access, no matter how time-limited or functionally constrained, similarly works a per se taking—unless one of the Court’s exceptions applies. This essay argues that Cedar Point is best understood as part of an ongoing campaign by the Court to selectively apply heightened scrutiny to property-facing governmental acts in ways that broadly entrench the status quo. The Court has effectively created an escape room into which physical impositions on owners are thrown wholesale, along with various bewildering means of possible extrication. Although Cedar Point makes little sense as part of an analytically coherent system for assessing when burdens on owners have gone “too far,” it works well as part of a selective scrutiny machine—one designed to preserve restrictions like zoning that serve landowners’ interests while scrutinizing and financially burdening regulations that do otherwise.
There is a vulnerability in the Court’s approach, however, if the goal is to knock out unwanted impositions on property owners: the Takings Clause allows the government to simply pay for what it takes. Thus, the Court’s elaborate escape room comes with a lighted exit sign located right above the cash register. And the amounts in question will often be trivial. By one back-of-the-envelope calculation, for example, California might be able to keep its labor access law in place for less than $5 per year per grower. Thus, for all its exclusion-fetishizing rhetoric, Cedar Point’s bark may prove worse than its bite.
Read the entire piece here.
Two thoughts. First, it makes sense to emphasize that in many if not most circumstances, a court concluding there's been a taking (or that government action would be a taking), has not really limited the government's power to do things in the public interest. It simply makes sure it can't put the entire economic burden on someone, and that the government undertake the actual benefit/cost calculus.
Second, in our experience, the aftermath of these cases can be somewhat counterintuitive. For example, in matters where the compensation owed would be relatively small (think Loretto for example) the government backs off the regulation and chooses to not “pay for the change.” Conversely, where the comp was big, the government has pressed forward, insisting that its regulatory actions are in the continued public interest, and darn it, we’re going to find a way to do this, even if it means we (and by that we mean "taxpayers") have to pick up the tab.
What's your experience?
