March 22, 2021

Just one Supreme Court case could blow up unions, child protection and anti-discrimination law

[Cross-posted from The Washington Post]

By Aaron Tang

Aaron Tang is a professor at the University of California, Davis School of Law. He was a law clerk to Justice Sonia Sotomayor.

On March 22, the Supreme Court will hear oral arguments in a seemingly minor labor-law dispute with potentially sweeping ramifications. Although the case itself concerns a mundane California agricultural regulation, a decision could threaten fundamental laws governing organized labor, child safety, nursing-home inspections — and even laws forbidding stores and restaurants from discriminating.

The case, Cedar Point Nursery v. Hassid, involves a decades-old California regulation that grants union organizers temporary access to an agricultural employer’s property — during non-working hours — to communicate with workers about their right to organize.

A pair of California fruit producers are challenging this access in the Supreme Court, contending that it amounts to an uncompensated “taking” of their property, forbidden under the Fifth Amendment. But California is not taking their property at all. Unlike the paradigmatic situation where government appropriates private property for its own use, California’s regulation merely grants union organizers a narrow license to meet with workers — without interrupting the employer’s operations.

The fruit producers are thus left to make a different — and far more sweeping — argument. They assert that the access regulation is a taking because it prevents them from excluding people that they just don’t like. And this “right to exclude unwanted persons,” they contend, is “so universally held to be a fundamental element of the property right that it cannot be infringed without compensation.” If the Supreme Court agrees, the upshot would be staggering.

Start with the effects on union organizing across the nation. The ability to access employer property is vital not only to California agricultural unions but also to millions of employees who enjoy the right to organize under the National Labor Relations Act. In 1945, the Supreme Court held that this law grants pro-union employees the same right at issue here: the ability to access an employer’s property outside of work hours for the narrow purpose of union organizing. Yet if the court holds that the takings clause permits property owners to exclude any unwanted person, employers could cripple unions by blocking employees from organizing on their premises.

The dispute threatens havoc just as great outside the union context. Consider state laws that permit child protection inspectors to make unannounced home visits. Now suppose a homeowner suspected of abuse or neglect wants to keep the inspector out. Under the challengers’ logic, such individuals would have a Fifth Amendment right to do so — unless the government paid the suspected abuser to access the property. The same problem would ensnare nursing home visits and food safety inspections.

Perhaps most glaring of all, the case threatens to blast a giant hole through the heart of anti-discrimination law. Federal law forbids stores, restaurants and other public accommodations to refuse service on the basis of a customer’s race. A number of states protect LGBTQ persons from similar discrimination.

Yet if Cedar Point creates a right to eject all “unwanted persons” from one’s property in the absence of a government payout, states and the federal government would face an impossible choice: raise taxes so that they can pay untold sums of money for every instance an LGBTQ person or person of color enters a storefront that belongs to a discriminatory owner, or call off the crucial project of eradicating societal discrimination.

There is reason to worry what the Supreme Court’s newly bolstered conservative majority will do. Just three years ago, in Janus v. AFSCME, Council 31, the conservative justices struck a blow against organized labor when they overturned a decades-old precedent and invalidated state laws permitting public sector unions to charge “fair share fees” to non-union workers.

But there is also cause for optimism that the justices will follow an emerging pattern, which I’ve called the “least harm principle,” in which they consider which side could best withstand a ruling against it. This approach points to a clear outcome in Cedar Point given the asymmetrical nature of the case.

While a ruling against the unions would leave them unable to communicate with seasonal employees who often lack cellphones and permanent addresses, a ruling against the employers would leave them with other, existing avenues for legal redress. Under longstanding Supreme Court precedent, property owners can assert a different kind of takings claim, known as a “regulatory taking,” under which they may be entitled to compensation if a regulation is especially burdensome. That case-by-case approach, as Chief Justice John G. Roberts Jr. wrote recently, finds the proper “balance between property owners’ rights and the government’s authority to advance the common good.”

The fruit growers never even attempted to make this argument. The likeliest reason is as cynical as it is obvious: Whereas a regulatory takings claim might have entitled them to some compensation if California’s law actually imposed an onerous burden, winning on that ground would have done nothing to eviscerate organized labor around the nation.

The radical character of the challengers’ lawsuit should give the justices pause. The court should decline the fruit producers’ plea to constitutionalize a sweeping power to exclude “unwanted persons” — and remind them of the rights they already enjoy.