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Where in the Constitution is Government Given the Authority to Regulate Property?
The State of California believes they can order their citizens to allow people on their property against their will. They believe that businesses exist solely at their discretion. At least, that is how the government of the state had been acting for the last few years. But does the State of California, or any state for that matter, have the right to grant third-party legal access to your property? The recent case of Cedar Point Nursery v. Hassid asked just such a question. The answer, while encouraging, shows that the courts or just as tyrannical as the State of California. They just apply it in a different way.
As I pointed out in a previous article, what California was doing with its regulation isn’t so much a ‘taking’ as a deprivation of property. A California regulation grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization.
Cedar Point Nursery and Fowler Packing Company both filed suit claiming that California’s law represented an uncompensated easement to enter their property, and therefore constituted a taking under the Fifth and Fourteenth Amendments. This was denied by both the District and Circuit Courts, leading to the appeal to the Supreme Court, which found for the growers.
The growers’ complaint states a claim for an uncompensated taking in violation of the Fifth and Fourteenth Amendments.
(1) 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.”
Let’s start with the Takings Clause. As the court quotes, the Fifth Amendment says quite clearly:
… nor shall private property be taken for public use, without just compensation.
This cannot be a taking under the Fifth Amendment because the property wasn’t taken for public use. The law specifically granted an easement to a limited list of private organizations, specifically labor unions.
The regulation mandates that agricultural employers allow union organizers onto their property for up to three hours per day, 120 days per year.
Since the property wasn’t taken, it still remains the property of the growers, and since the regulation did not designate it for public use, this is not a Fifth Amendment taking. And this nonsense that somehow the Fifth Amendment to the Constitution didn’t apply to the states until the Fourteenth Amendment, is just another example of the incredibly flawed Incorporation Doctrine, which I debunked in my article The Incorporation Doctrine. While the court doesn’t seem to recognize it, what we have here, in their own words, is not a taking, but a deprivation of property without due process.
A different standard applies when the government, rather than appropriating private property for itself or a third party, instead imposes regulations restricting an owner’s ability to use his own property.
The court is correct; a different standard applies when governments take control of property, especially for third parties. That makes this a clear violation of the Fourteenth Amendment. Not because of some invented incorporation doctrine, but because it’s the state depriving the growers of the enjoyment of their property, not as punishment for the grower’s wrongdoing, but for the advantage of an ally of the Democratic Party which controls the government of California.
nor shall any State deprive any person of life, liberty, or property, without due process of law;
The court even used a previous opinion in Kaiser Aetna v. United States as evidence that denying the growers the right to exclude is to deny them a fundamental element of property rights.
The right to exclude is “a fundamental element of the property right.” Kaiser Aetna v. United States, 444 U. S. 164, 179–180. …
The Court declines to adopt the theory that the access regulation merely regulates, and does not appropriate, the growers’ right to exclude. The right to exclude is not an empty formality that can be modified at the government’s pleasure.
If that were all, I probably wouldn’t have written an entire article, but then the court asked what, to me, is a very interesting question.
What Comes Next?
The Board’s fear that treating the access regulation as a per se physical taking will endanger a host of state and federal government activities involving entry onto private property is unfounded.
One of the concerns that California’s Agricultural Labor Relations Board brought up was the concern that finding their regulations a taking would impact other state and federal activities. The court says these concerns are unfounded. I, on the other hand, find them quite compelling
First, the Court’s holding does nothing to efface the distinction between trespass and takings. The Court’s precedents make clear that isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right.
The court is correct. There is a simple distinction between trespass and takings. I have seen nothing in this opinion that would change that.
Second, many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights, including traditional common law privileges to access private property.
Here’s the rub: If the government unilaterally granting an easement, a physical invasion onto private property, is a taking under Cedar Point Nursery, why is it not under other regulations? I’m sure most Americans would find it distasteful for businesses to deny access to people for reasons we don’t agree with. However, part of living in a free country is allowing people to do and say things we find distasteful until they cause someone actual harm. So if the government cannot grant labor unions access to agricultural businesses, why can it grant access based on race, sex, or physical disability? Why did the same court that said the State of California could not infringe on the right to exclude against labor unions, deny to hear a case that let stand an opinion that schools could grant boys access to the girls’ bathrooms and locker rooms? (I will be covering the case Grimm v. Gloucester County School Board in an upcoming article.) And what about those regulations granting government actors access to private property without a warrant? If the government demands you obtain their permission, then requires you to give up the right to exclude as part of that process; is that not a deprivation of property? If governments cannot grant access to third parties, how can they grant it to themselves? Especially when such access is a direct violation of the supreme law of the land?
The answer to these questions is quite clear. The court has assumed the authority to apply the law based solely on their own opinion and nothing else.
Breyer, Sotomayor, and Kagan for the Dissent
Interestingly enough, the dissent pointed out the flaw in the plaintiff’s claim that California’s regulation is a taking.
Does the regulation physically appropriate the employers’ property? If so, there is no need to look further; the Government must pay the employers “just compensation.”
I agree; the question of a taking has to do with actually taking property.
TA’KING, noun The act of gaining possession; a seizing; seizure; apprehension.
Since the California regulation did not gain possession of the property, does that mean the dissent was correct, and the court should have found for the State of California? Again, this cannot be a taking because nothing was taken. As Justice Breyer points out:
The Court holds that the provision’s “access to organizers” requirement amounts to a physical appropriation of property. In its view, virtually every government-authorized invasion is an “appropriation.” But this regulation does not “appropriate” anything; it regulates the employers’ right to exclude others.
As I’ve already said, and the court has noted previously, granting access to private property is a deprivation of that property. So, wherein the Constitution of California or the United States is government given the authority to regulate property?
The answer is: Nowhere.
REG’ULATE, verb transitive To subject to rules or restrictions;
Since the power to regulate is the power to restrict, is it not also the power to deprive?
DEPRIVE, verb transitive To hinder from possessing or enjoying;
Therefore, when government regulates property, placing restrictions upon your use of it, they are hindering you from possessing or enjoying it. So whenever any government regulates your property without due process, they are depriving you of it in violation of the Constitution of the United States.
due process, An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.
That means all the arguments of the court, both in favor and dissent, about the temporary or limited nature of the regulation are moot. The Constitution of the United States, the supreme law of the land, specifically prohibits governments from depriving you of your property without following due process and ensuring your rights as an individual are protected.
Once again, we have a federal court offering the right conclusion for a very wrong reason. Like the bitter medicine hidden in candy, this case is not the vindication of property rights many seem to be touting. Instead, it’s another nail in the coffin of the rule of law. As one more court places itself above the law they have sworn to uphold, America ceases to be a republic and moves ever closer to an oligarchy that closely resembles the tyrant we declared independence from back in 1776.
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