Yesterday, the United States Supreme Court struck down as unconstitutional a California regulation (title 8, § 20900(e)) that forced agricultural employers to give union organizers access to the employers’ private property for the purpose of soliciting the employers’ employees.
Under the regulation, unions were permitted to “take access” to the employer’s property for up to four 30-day periods in one calendar year. The union could do so by filing a written notice with the Agricultural Labor Relations Board and serve a copy to the employer. Once served, the employer was forced to permit organizers to enter the employer’s property for up to one hour before work, one hour during the lunch break, and one hour after work. The regulation provided that organizers were not to engage in disruptive conduct but were otherwise free to meet and talk with employees as they wish. Any interference with organizers’ right of access could constitute an unfair labor practice and result in sanctions against the employer.
The Court started its opinion by noting:
The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides: “[N]or shall private property be taken for public use, without just compensation.” The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom. As John Adams tersely put it, “[p]roperty must be secured, or liberty cannot exist.” Discourses on Davila, in 6 Works of John Adams 280 (C. Adams ed. 1851). This Court agrees, having noted that protection of property rights is “necessary to preserve freedom” and “empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.” Murr v. Wisconsin, 582 U. S. ––––, ––––, 137 S.Ct. 1933, 1943, 198 L.Ed.2d 497 (2017).
When the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to provide the owner with just compensation. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002).
The Court went on to review prior cases and distinguish between “regulatory” takings and “per se physical” takings. The Court pointed out that just because the alleged taking in this case was the result of a California regulation, it did not make it a regulatory taking. Rather, because the regulation appropriates a right to physically invade the employer’s private property, it constitutes a per se physical taking. Where there is a per se physical taking, the government must provide just compensation to the property owner; which was not provided under the regulation. The California government argued that it was not a per se physical taking because the access granted by the regulation was not continuous and permanent. The Court rejected this argument, ruling that the amount of access was relevant only to the amount of compensation due.
California’s government has long been dominated by individuals who favor union rights over those of employers. This case is an encouraging reminder that we still have a system of government and a Constitution which were designed to help prevent overreaching governments from taking all of our liberties.