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The Supreme Court will hear a new attack on unions. The implications are profound.

A case targeting union organizers could endanger basic government functions such as fire inspection and workplace safety.

Cesar Chavez is seen leading a strike in a black-and-white photo. Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

The Supreme Court announced on Friday that it would hear Cedar Point Nursery v. Hassid, a case targeting a 45-year-old California regulation that allows union organizers to briefly enter agricultural workplaces to speak to farmworkers. But the case has implications that stretch well beyond labor organizing. Among other things, Cedar Point could potentially allow businesses to deny entry to health inspectors and other government officials who ensure that those businesses are being operated safely.

The Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” The Cedar Point plaintiffs argue that this “takings clause” gives them a broad right to “exclude unwanted persons from [their] property,” including union organizers — and that property owners are entitled to compensation if this right is violated by a state regulation.

If the Supreme Court were to hold that the government may not require a business to allow unwanted people on its premises, the implications could be staggering. It could mean, for example, that the government runs afoul of the takings clause if it requires restaurants to submit to periodic health inspections, or if it requires power plants to be inspected to monitor their emissions, or if factories are required to allow workplace safety inspectors to observe working conditions.

A victory for the Cedar Point plaintiffs could potentially endanger a wide range of land use regulations — such as requirements that certain buildings install sprinkler systems to prevent a fire from spreading, or requirements that buildings in earthquake-prone areas be built to protect occupants from such quakes.

The Court could also potentially hand down a narrower ruling that singles out unions for inferior treatment. In Janus v. AFSCME (2018), for example, the Supreme Court voted along party lines to forbid public sector unions from charging certain fees to non-union members who benefit from the union’s services. But the Court has, at least so far, not applied Janus to non-unions that charge similar fees.

A broad decision in Cedar Point, meanwhile, could fundamentally reshape the balance of power between the government and private property owners. And it could do so in ways that don’t simply endanger workers’ rights but that could also potentially make all of our lives less safe.

California’s farmworker access rule, briefly explained

The specific regulation at issue in Cedar Point, as Harvard Law professor Niko Bowie noted on Twitter, “was the product of a years-long campaign by César Chávez” and the United Farm Workers. Promulgated in 1975, this regulation gives union organizers limited access to agricultural worksites, provided that those organizers disclose to the employer that they intend to enter a particular worksite.

Briefly, the regulation allows organizers to enter a worksite and speak to farmworkers for up to three hours a day — the hour before the start of work, the hour after the end of work, and the period when the workers break for lunch. Before a union may take advantage of this regulation, however, it must notify the government and the employer that it intends to do so. After filing the appropriate paperwork, the union then gains limited access to a worksite for up to 30 days. A union may invoke this right to enter a particular worksite up to four times a year.

Thus, union organizers are allowed on an agricultural employer’s property for a maximum of 120 days a year, and only for a maximum of three hours on any given day.

Two kinds of “takings” under the Constitution

The Supreme Court’s cases distinguish between “per se” takings, which are cases involving particularly significant intrusions on a person’s property that are entitled to special constitutional protection, and “regulatory” takings, where landowners’ rights are more limited.

Property owners who are subject to a per se taking typically win their suit, while property owners who allege a mere regulatory taking are far less likely to prevail — even if the plaintiffs in a regulatory takings case challenge a land use regulation that imposes significant limits on how they can use their property. In one classic regulatory takings case, for example, the Supreme Court upheld a New York City law that prevented the owners of the Grand Central train station from constructing a high-rise office building on top of the terminal.

Fairly few cases, moreover, qualify as per se takings. Under the Court’s existing precedents, unless a particular law either deprives a property owner of “all economically beneficial or productive use” of their property, or subjects the property owner to a “permanent physical occupation” of their land, the law is not a per se taking.

Given this existing framework, California’s farmworker access rule should not qualify as a per se taking. Though the goal of a unionization drive is typically to pressure an employer into paying higher wages to their workers, the mere presence of union organizers at a workplace does not deprive an employer of all economic use of their property. Similarly, the California regulation does not give union organizers the right to permanently occupy an employer’s land — it only lets them enter that land for a few hours a day, and for only four months of the year.

The Cedar Point plaintiffs, however, ask the Court to expand its definition of what constitutes a per se taking to include many regulations that merely allow an unwanted person to enter a landowner’s property temporarily.

Although the California regulation does not permit union organizers to permanently occupy an employer’s land, the Cedar Point plaintiffs argue that the regulation grants unions a permanent right that they can invoke against certain landowners (known as an “easement” in the parlance of property law). Thus, the plaintiffs argue that this case should be deemed a per se taking because the California regulation is itself permanent.

If the Supreme Court embraces this theory, however, the implications could stretch far beyond union organizing.

Imagine, for example, a city ordinance that provides that “all restaurants shall permit a government health inspector to enter their business once every three months, to inspect the property for health code violations.” This hypothetical ordinance resembles the California regulation in that it only permits an unwanted person to enter a business’s property occasionally, but it also grants health inspectors a permanent power to enter into that property once every quarter.

If the California regulation violates the takings clause, then it’s hard to see how this health inspection ordinance — or any other law that requires businesses to periodically allow a government worker to inspect their property — doesn’t also run afoul of the Fifth Amendment.

Moreover, if the Court does expand its definition of what constitutes a per se taking — that is, what constitutes a “permanent physical occupation” of land — then such a decision could have profound implications for virtually any land development project. Fairly basic laws requiring developers to install illuminated exit signs in their buildings — or to construct those buildings using sturdy, architecturally sound materials — could potentially run afoul of the takings clause.

After all, if it is a “permanent physical occupation” of land to permit a union organizer to temporarily enter an employer’s property for a few hours a day, then why isn’t it a “permanent physical occupation” of land to actually require a developer to install a permanent physical structure inside one of their buildings?

Thus, if the Supreme Court. with its 6-3 conservative majority, decides to limit the rights of unions in Cedar Point, it could open up a can of worms that could jeopardize a long list of land use laws. At the very least, it’s hard to distinguish the California regulation from any law permitting government inspectors to investigate whether a business is complying with health, safety, or labor laws.