Here are all of the posts in our Cedar Point series:
And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don't miss listening to the recording of ALI-CLE's "Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know."
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Justice Kavanaugh: Only Truly Necessary Intrusions Allowed (And This One Wasn't)
Along with joining the majority's opinion in full, Justice Kavanaugh wrote a short concurring opinion to explain why an existing precedent -- about which he pointedly asked at oral argument -- also supported the outcome.
The case: NLRB v. Babcock & Wilcox, Co., 351 U.S. 105 (1956). This is the one which got several people asking "hasn't the Court already ruled that a union-access easement is constitutional?" That case upheld the federal National Labor Relations Act's requirement that certain employers open their properties to union organizers. Sounds like Cedar Point, no?
Yes, but you have to read that decision carefully, Justice Kavanaugh cautioned, because the Court there avoided the takings question by interpreting the NLRB's requirement narrowly. The canon of construction that counsels to avoid reading statutes to create constitutional problems applied, and resulted in the Court upholding the requirement by avoiding the takings problem lurking in the statute:
Against the backdrop of the Constitution's strong protection of property rights, the court interpreted the Act to afford access to union organizers only when "needed," ibid. -- that is, when the employees live on company property and union organizers have no other reasonable means of communicating wit the employees.
Concurring op. at 2.
This looks like a form of necessity referenced in the majority opinion, although here too, some caution is in order. As we noted in this piece, necessity should only be an exception to the general rule of compensation when the action undertaken by the government really is among the least imposing alternatives to avoid a genuinely drastic result. Babcock certainly can be read through that lens, as Justice Kavanaugh pointed out when he noted that absent entry onto private property, there'd be no other way for the government to ensure that employees had access to information about unions (other than, you know, taking an access easement by eminent domain).
In Babcock, the workers apparently could not be accessed readily off-premises, because they lived on the employer's property. In Cedar Point by contrast, the workers did not live on the nursery's property, and union organizers were free to proselytize to the workers elsewhere. Yes, private property might be the most convenient venue for such activities, but that's a pretty far cry from being necessary due to no other alternatives, Justice Kavanaugh argued.
The Three-Justice Dissent: The Appropriations Clause
Justice Breyer, joined by Justices Sotomayor and Kagan -- in what the majority opinion made a point to call a "thoughtful opinion" -- dissented.
Their basic point was what you would expect -- regulations that impose a temporary or non-permanent physical invasion are not treated categorically, but instead are analyzed as plain old regulatory takings under Penn Central's three-part ad hoc test. What is interesting is the way the dissenters got there.
They first characterized the Takings Clause as the Appropriations Clause:
The question before us is how to characterize this regulation for the purpose of the Constitution's Takings Clause.
Does the regulation physically appropriate the employer's property? If so, there is no need to look further; the Government must pay the employers "just compensation."
Dissent at 1. (Accused the majority of recasting the Takings Clause as the Appropriations Clause might be more accurate.)
The Regulatory "Hook"
That phrasing of the question ("does the regulation physically appropriate the employer's property?") telegraphed the dissenters' analysis in a couple of ways.
First, it set up a truism: the applicable test is the default "regulatory takings" analysis because these physical invasions are required by regulations (in contrast, we suppose, to invasions such as flooding). And since these are "regulatory takings" shouldn't the default Penn Central test apply? But that seems like a straw argument. After all, aren't all of these types of invasions the result of regulations, and therefore a species of "regulatory takings?" Nearly any invasion that is not the result of an affirmative exercise of eminent domain can be classified as a "regulatory" taking because it is incident to an exercise of some government regulatory power. Most non-eminent domain physical and categorical takings cases fall in this category: Loretto (police power), Kaiser Aetna (commerce power), Nollan (police power), Lucas (police power), etc., etc. But the regulatory enablement of the invasion has never alone mandated we analyze it under Penn Central simply because its a "regulatory" taking.
Yes, you could look at every regulation-enabled invasion through a Penn Central lens (as we did as an academic exercise here), with physical invasions being analyzed under the "character of the government action" factor, with invasions being so contrary to common notions of what it means to own property (there's that "keep out" vibe again) that both the magnitude (Loretto) and the duration (Cedar Point) of the invasion are irrelevant, and looking at the other two Penn Central factors is unnecessary. Remember that the central question in regulatory takings is "how much does this look like a classic exercise of eminent domain" --
Although our regulatory takings jurisprudence cannot be characterized as unified, these three inquiries (reflected in Loretto, Lucas, and Penn Central) share a common touchstone. Each aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain. Accordingly, each of these tests focuses directly upon the severity of the burden that government imposes upon private property rights.
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005). Thus, it seems you get to the same result whether or not you treat the invasion as the deciding Penn Central factor or simply as a separate species of taking, and the debate may be a mostly-academic exercise because the Cedar Point invasion looks an awful lot like an exercise of eminent domain from the owner's point of view. In short, in our view the dissent's building its analysis on the framing of the case as a "regulatory taking" doesn't get it very far, and avoids the central question: what is the dissent's concept of "property?"
The majority pretty clearly told us what they think it means to own property, or at least a big part of it. This is the majority's "intuitive" and "common sense" approach to defining private property under the Fifth and Fourteenth Amendments. Our read of the dissent, by contrast, is that it talks all around the issue, but never explicitly lays out its property theory.
This leads into what we think is the second dissent "telegraph" -- the way it employed semantics to make its main point. The dissent asserted, "[t]he Court holds that the provision's 'access to organizers' requirement amounts to a physical appropriation of property. In its view, virtually every government-authored invasion is an 'appropriation.'" Dissent at 2. But this regulation does no such thing, they argued, it merely regulates the right to exclude because the permitted invasion is not a permanent occupation. Having set up another straw argument (appropriations are permanent, anything less is a regulation), the dissent asserted that a regulation requiring an owner open their property to others does not result in an "appropriation" of the right to exclude, merely a regulatory limitation of that right.
The dissent defended its "characterization" in several ways:
- California's regulations do not require agricultural property owners to convey an easement to the government or to the public. Whatever the regulation imposed, it was not "any traditional property interest in land." Dissent at 4. It may be a winged waterfowl that makes quacking noises when you call out "Donald" or "Daffy," but it's not really, you know, a duck.
- Second, the regulation doesn't literally transfer the nursery's right to exclude to the union organizers. Dissent at 5 ("It is important to understand, however, that technically speaking, the majority is wrong. The regulation does not appropriate anything. It does not take from the owners a right to invade (whatever that might mean). It does not give the union organizations the right to exclude anyone. It does not give the government the right to exclude anyone."). This to us illustrates the sleight-of-word that the dissenters are playing, because if the regulation indeed actually appropriated and transferred a traditional interest in property from the nursery to the union organizations, we wouldn't be having this discussion, would we? We'd be talking eminent domain and compensation.
- Ah, but we're not saying that California's regulations cannot be a taking, the dissent argued, we're only saying that the regs should not be automatically considered a taking. Dissent at 5 ("The issue is whether a regulation that temporarily limits an owner's right to exclude others from property automatically amounts to a Fifth Amendment taking."). Prove up the other two Penn Central factors, and you get your compensation!
Saving Loretto By Blowing Up Loretto
In what may be the dissent's strongest point (the majority conceded the "point is well taken"), it noted that in Loretto, the Court concluded that "[n]ot every physical invasion is a taking." Dissent at 6 (citing Loretto, 458 U.S. at 435 n.12). Indeed, the occupation in Loretto was more-or-less permanent (or, more accurately indefinite -- since very little it truly permanent), and the consequences of permanent action were the only things we were worried about in that case. Read the dissent pages 6-7 for why the dissenters think that permanent occupations always undermine the concept of private property, while less-than-permanent occupations do not. For example, a permanent occupation prevents the owner from using that space, controlling it, and wipes out every right associated with that space. As the dissent quoted Loretto, "a permanent physical occupation 'is perhaps the most serious form of invasion of an owner's property interests.'" Dissent at 7 (quoting Loretto, 458 U.S. at 435).
Cedar Point does not disturb that reasoning. But whether you want to say that the majority sub silentio overruled Loretto or merely clarified its dicta or cleaned up the misunderstandings it created, did anyone accurately predict that the Court would have to burn a common reading of the Loretto opinion in order to save the common reading of the Loretto rule?
Pruneyard Distinguished
The dissenters pointed to Pruneyard, asserting that case "fits this case almost perfectly." Dissent at 8. The invasion was not round-the-clock, was limited in purpose, and was subject to government regulation on time, place, manner. In Cedar Point, the scope of entry was narrower: instead of the general public, the regulation required only that union organizers are allowed. Ah hah, if that's the case, we're in "regulatory-balancing" territory, the dissenters argued. Dissent at 9.
What we thinks that overlooks is the critical fact in Pruneyard: the shopping center owner had already thrown open its doors to the public, inviting everyone to come on in to patronize Pruneyard's tenants. Having acknowledged that it had invited the public onto its premises, the shopping center had not shown that allowing handbilling would interfere with whatever right to exclude remained. Pruneyard, 447 U.S. at 77 ("The PruneYard is open to the public for the purpose of encouraging the patronizing of its commercial establishments.”). In short, the shopping center owner "failed to demonstrate that the ‘right to exclude others’ is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a ‘taking.'" Id. at 84. Here, Cedar Point Nursery had not thrown its doors open to the public, only what we might call "invitees" -- employees there for a limited time, and limited purpose, and the property owner's complaint alleged that the union's intrusions interfered with the owner's quiet enjoyment.
We Want to Regulate, But Can't Afford to Pay
Next, the dissenters employed a revised form of the "sky will fall" argument that is frequently employed to object to takings argument. Here, the dissent didn't so much focus on "this will tie government's hands by making every intrusion a taking" (the most-oft deployed argument), but one that isn't more compelling, but at least is more straightforward: "And it is impractical to compensate every property owner for any brief use of their land." Dissent at 12. In other words, we can't afford to pay, you know, for everything we take. The dissent employs the second most famous Justice Holmes quote from Pennsylvania Coal: "[a]s we have frequently said, '[g]overnment could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.'" Dissent at 12 (quoting Pennsylvania Coal, 260 U.S. at 413). That seems to be mixing the apples of invasion-takings with the oranges of regulatory takings. The nursery isn't only claiming that the impact of California's regulations incidentally diminish the value of its property, but the main concern asserted is an interference with an essential attribute of property.
Who Keeps The Gates?
And here is where we get to the essence of the disagreement between the majority and the dissent (hint: it's not about the metaphysical distinction between permanent or temporary). Their fundamentally different world views of what it means to possess private property. As we noted here, the majority opinion is based on a view of property that maybe comes more from the heart, than from the head. Private property means "keep out." Or maybe "if you can't say 'keep out,' you really don't own 'private' property." More Locke (or Grotius), less Hobbes.
The dissent didn't see it that way, at least as we read between the lines. Your right to say "keep out" only applies to keeping everyone out, always. And we don't live in a world where you can do that. After all, "[w]e live together in communities." Dissent at 12. Rather, we live in a world where Leviathan, not private owners, determines who can come and go. All in the name of the public good, naturally. See, e.g., Dissent at 12-13 (listing regulations that require access to private property for food safety inspections, mobilehome construction inspections, coastal wetland inspections, family care inspections, school inspections, elderly care facility inspections, waste management facility inspections, and "owl surveys"). All of this based on the "regulatory" hook we mentioned earlier, without which none of this would be okay. After all, if government officials simply barged in someone's property without regulatory authorization, unannounced at 5:00 a.m. and stayed for 3 hours, 120 days per year, we'd hope dissenters would agree that this would be categorically contrary to the notion of private property.
The dissent wrapped up with a final complaint, based in procedure. In its complaint, the nursery sought only declaratory and injunctive relief, not just compensation. Dissent at 16. But as we've long suggested, even though compensation is the usual remedy in "takings" cases, it is not the exclusive remedy.
