The Federalist Society finally has a case before the Supreme Court that could roll back large swaths of the regulatory state and civil rights laws.
On November 13, the court granted an appeal from a corporate farm seeking to void California regulations that give union organizers access to its property to talk to farmworkers about their union rights. The farm owners, backed by the California Farm Bureau and a wide spectrum of conservative organizations, argue in Cedar Point Nursery v. Hassid that the regulations violate the owners’ Fifth Amendment right to exclude unwanted visitors from their property.
Both the California Supreme Court and the US Court of Appeals for the Ninth Circuit have ruled that the regulations are constitutional. So if the Supreme Court is bothering to take the case, there is a reasonable likelihood that, with Amy Coney Barrett’s ascension, there are now five justices ready to overturn the lower courts and move forward with the most radical economic goals of the conservative legal movement.
And make no mistake; while the court majority may try to sell the striking down of California’s labor regulations as just a small extension of its existing doctrines, they will in fact be crossing a major Rubicon in overturning bedrock legal precedents that have upheld New Deal and civil rights–era economic policies for decades.
The Fifth Amendment argument made in this case is little different from that made by Barry Goldwater and others who denounced the 1964 Civil Rights Act as violating businesses’ property rights to exclude whomever they wished to from their property. Rebuking that viewpoint, the court, in its 1964 Heart of Atlanta Motel decision, argued that companies could not invoke the Fifth Amendment to refuse entry to their property: A company “has no ‘right’ to select its guests as it sees fit, free from governmental regulation.”
The holy grail of the legal right has been for the courts to insist that government compensate corporations when regulations encroach on their property; this is what conservative legal scholars call unconstitutional “regulatory takings.” But while the court has moved rightward over the decades, it has largely refused to roll back major consumer, environmental, or employment legislation using this “regulatory takings” argument, even where the economic value of property has been substantially reduced due to regulations.
Now, with an expanded conservative majority on the court, Cedar Point Nursery presents an opportunity for right-wing legal activists to take another bite at the apple. The argument is that giving union organizers access to employer property is not a constitutional economic regulation but a “temporary physical invasion” (supposedly prohibited by the Fifth Amendment). In this, the plaintiffs are invoking the key area where the court has found Fifth Amendment violations, namely where government policy mandates permanent physical changes or access to private property, such as installing cable equipment, extraction wells, bike lanes, or beach access paths across property. Such “permanent physical invasions” require compensation, according to a scattering of court decisions. While these decisions were generally opposed by most liberal justices, their impact on public policy has been relatively limited, given the court’s overall refusal to entertain broader “regulatory takings” challenges.
With Cedar Point, the goal is to have even temporary “physical invasions” declared unconstitutional takings. That’s a critical change, since the California farmworker regulations in question don’t give unions unlimited access to employer property, but only offer access for a limited number of months during the year and then only for an hour before and after work shifts, as well as during lunch, all limited to non-work areas of the property where employees congregate.
Given the pervasiveness of rules, in all sorts of public policy, that grant people periodic access to private property, this seemingly subtle shift from the words “permanent physical invasion” to “temporary physical invasion” would convert the Fifth Amendment into a wrecking ball and render large areas of current public policy unconstitutional.
A brief in support of striking down the California farmworker regulations filed by the Institute for Justice—a conservative litigation outfit funded by the Koch family, among others—is clear in this goal. Expressing frustration that the bar for proving a “regulatory taking” is so high, the brief points to classes of regulations that the court should instead declare to be unconstitutional “temporary physical invasions.”
The IJ cites disapprovingly a ruling by the First Circuit that upheld the constitutionality of a Maine law requiring hospitals to provide health care to indigent residents, a law that the IJ argues allows “periodic and intermittent” physical invasions (i.e., access to hospital beds) by those patients, which therefore should violate the Fifth Amendment. Similar logic could strike down laws requiring landlords to accept “invasions” (i.e., rentals) by Section 8 tenants or laws requiring charter schools to accept “invasions” (i.e., enrollment) by disabled students, or pretty much any rules requiring firms to serve clients or customers they would prefer not to.
Rules regulating which contractors a company may use on its property would also be struck down if Cedar Point Nursery prevails at the Supreme Court, according to the IJ, which argues for overturning a D.C. Circuit precedent that upheld a requirement that hotels in Washington may not discriminate in deciding which licensed taxis can use their cab stands. And if companies cannot be forced to hire contractors they don’t want, it’s a pretty slippery slope to striking down much of federal labor law that prevents employers from excluding (i.e., firing) pro-union employees from their property.
The big question is how much of a chainsaw the new court majority is willing to take to precedent—which conservative justices have not been shy about doing, particularly in regards to labor law. In this case, though, they would be discarding precedents often authored by conservative predecessors, including William Rehnquist, Ronald Reagan’s pick for chief justice. Most pertinent to the Cedar Point Nursery case is the 1980 Pruneyard Shopping Ctr. decision, which held that California law, which protected the right of a labor union to leaflet inside a private mall, did not violate the Fifth Amendment. As Rehnquist wrote then, “It does not violate the United States Constitution for the State Supreme Court to conclude that access to appellants’ property in the manner required here is necessary to the promotion of state-protected rights of free speech and petition.”
While the advocates for Cedar Point Nursery try to argue that Pruneyard is limited to “publicly accessible” spaces like malls, in 1984 the court—again supported by conservative justices like Rehnquist—cited Pruneyard in upholding a Minnesota law requiring private clubs like the Jaycees to allow women members. And federal labor law has granted non-employee union organizers access to mining and logging camps and other non–publicly accessible locations without running afoul of the Fifth Amendment.
A 1992 case, Lechmere Inc. v. NLRB, limited where the National Labor Relations Board could ignore state property law in granting unions access to employer property—a case the advocates for Cedar Point Nursery make much of—but this was a statutory interpretation of a federal law with no mention of the Fifth Amendment at all. And the NLRB and the courts have continued to regularly grant union organizers access to non–publicly accessible employer property wherever state law says unions have the right to such access. In fact, two years after Lechmere, in a case highlighting the right of federal inspectors and non-employee union representatives to access private coal property, the court largely dismissed any Fifth Amendment challenge to such access, arguing that such claims “misconstrue Lechmere,” since the right to exclude union organizers derives from state property law, which the court noted states can redefine. And at the federal level, “Congress’ interest in regulating the mining industry may justify limiting the private property interests of mine operators.”
Despite this overwhelming pile of precedents justifying California’s farmworker union regulations, there is nothing to stop the current court majority from overriding all of them and opening the door to what would no doubt then be a torrent of radical new decisions.
Advocates should refuse to let the court majority gaslight the public that such a decision is merely a minor change in doctrine; they should instead trumpet that it is a profoundly radical move by a court far to the right even of GOP predecessors like Rehnquist.
We need to create a public drumbeat on the importance of this case—and, if the court rules against the farmworkers, highlight how unmoored from precedent this new right-wing majority really is. In the end, if nothing else, this will at least stiffen the spine of Democratic leaders to expand the court when the political opportunity arises.