July 29, 2021

July 29, 2021

Your Source for Free Speech,
Talk Radio, Podcasts, and News.

Where in the Constitution is Government Given the Authority to Regulate Property?

by | Jul 19, 2021 |

Print Friendly, PDF & Email

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 isnt so much a takingas a deprivation of property. A California regulation grants labor organizations a right to take access” to an agricultural employers property in order to solicit support for unionization.

Cedar Point Nursery v. Hassid

Cedar Point Nursery and Fowler Packing Company both filed suit claiming that Californias 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.

WATCH THE VIDEO AND SUBSCRIBE ON RUMBLE

Takings

The growerscomplaint 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.”

Cedar Point Nursery v. Hassid

Lets 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.

U.S. Constitution, Amendment V

This cannot be a taking under the Fifth Amendment because the property wasnt 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.

Cedar Point Nursery v. Hassid

Since the property wasnt 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 didnt 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 doesnt 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 owners ability to use his own property.

Cedar Point Nursery v. Hassid

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 its the state depriving the growers of the enjoyment of their property, not as punishment for the growers 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; 

U.S. Constitution, Amendment XIV

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 growersright to exclude. The right to exclude is not an empty formality that can be modified at the governments pleasure.

Cedar Point Nursery v. Hassid

If that were all, I probably wouldnt have written an entire article, but then the court asked what, to me, is a very interesting question.

What Comes Next?

The Boards 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.

Cedar Point Nursery v. Hassid

One of the concerns that Californias 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 Courts holding does nothing to efface the distinction between trespass and takings. The Courts 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.

Cedar Point Nursery v. Hassid

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.

Cedar Point Nursery v. Hassid

Heres 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? Im sure most Americans would find it distasteful for businesses to deny access to people for reasons we dont 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 girlsbathrooms 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 plaintiffs claim that Californias regulation is a taking.

Does the regulation physically appropriate the employersproperty? If so, there is no need to look further; the Government must pay the employers just compensation.”

Cedar Point Nursery v. Hassid

I agree; the question of a taking has to do with actually taking property.

TAKING, noun The act of gaining possession; a seizing; seizure; apprehension.

Websters 1828 Dictionary

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 provisions 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 employersright to exclude others.

Cedar Point Nursery v. Hassid

As Ive 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.

REGULATE, verb transitive To subject to rules or restrictions;

Websters 1828 Dictionary

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;

Websters 1828 Dictionary

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.

The Free Legal Dictionary

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, its 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.

Paul Engel

Author and speaker Paul Engel has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. That experience helps Paul explain difficult concepts in a way most people can understand. As one manager described, “Paul can take the most complex idea and explain it in a way my grandmother can understand.” Freely admitting that he “learned more about our Constitution from School House Rock (a Saturday morning cartoon) than in 12 years of school,” he says that anyone can be a constitutional scholar. Since 2014 I have been helping everyday Americans read and study the Constitution of their country and teaching the rising generation to be free. Using news and current events as a springboard, I explain the Constitution and encourage others to stand up and secure the blessings of liberty for themselves, their children, and the nation.

Subscribe
Notify of
guest
0 Comments
Inline Feedbacks
View all comments

Use the code ‘OUTLOUD’ and receive your 20% discount on your first order.

The Brainwashing Has Begun in Our Military and Schools

The Brainwashing Has Begun in Our Military and Schools

If it looks like a duck, walks like a duck, and quacks like a duck, it is a duck. Teaching a child that he is bad because his skin is white is Critical Race Theory by any name. The Constitution and Bill of Rights list freedom of religion as a basic right of all Americans, including those in the military. No more. Today’s military wants only “woke” soldiers…

Is Tunisia Undergoing a Second Arab Spring

Is Tunisia Undergoing a Second Arab Spring

What Americans, Europeans, and other world leaders are willfully ignoring is the fact that the president’s move is supported not only by the frustrated and disgusted Tunisian people but also by the armed forces. This may be a repeat performance of what happened in Egypt in 2013 when 30,000,000 Egyptians demonstrated at the same time all over the country…

We Stand in Opposition to the Cultural Revolution

We Stand in Opposition to the Cultural Revolution

What is it that ‘the rich,’ the government, the media, corporate boardrooms, and the rest of the establishment want? That’s easy. All of these groups want to take away choice, and to control the public. The left is the party of climate alarmism and mask mandates. The left is increasingly trying to make the political right look unhinged – like a bunch of radical revolutionaries intent on taking the system down. We must embrace that…

Patriots are the new “Domestic Terrorists” – Meet Paul Hodgkins

Patriots are the new “Domestic Terrorists” – Meet Paul Hodgkins

A former counterterrorism expert believes that this “government has begun to use the tools that were developed to fight a credible foreign threat to [now] fight against the political opponents of Democrats.” He has no doubt that “we’re going to find out that the January 6 case is going to be full of FBI agents and informants, just like the Whitmer kidnapping case.”

The Big Lie of Systemic Racism in America

The Big Lie of Systemic Racism in America

Democrats have long used racial division as a tactic to try to maintain their grasp on power. Sadly far too many minorities continue to fall for the lies perpetrated by the Democrats, the empty promises that they constantly spew, especially during election years. For decades Democrats have promised minorities prosperity and an equal opportunity to achieve the American dream.

Chinese Communist Party Influence in our Universities Must Stop

Chinese Communist Party Influence in our Universities Must Stop

China is actively undermining America’s economic and national security by funneling billions of dollars into elite universities such as Harvard, Yale, and Cornell to stoke the fraud of human-caused climate change, one of the Chinese Communist Party’s chief weapons against the United States of America. The CCP used universities to promote climate alarmism with research claiming…

Swiss Policy Analysis, Vaccine Failure

Swiss Policy Analysis, Vaccine Failure

Seniors and high-risk patients vaccinated in January 2021 appear to have no protection whatsoever. The latest data from Israel, which has used the Pfizer mRNA vaccine primarily, indicates that vaccine effectiveness against Delta coronavirus infection and symptomatic (“mild”) disease has dropped from about 95% to about 40%…

A GRIMM Fairytale on Bathroom Etiquette and Safety

A GRIMM Fairytale on Bathroom Etiquette and Safety

While the school didn’t seem to care that a girl was using the boy’s bathroom, it appears a significant number of parents did. This goes to show one of the most overlooked problems with our nation’s fascination with treating facts as inconvenient truths when it comes to sex. The Board built single-stall restrooms as an “alternative” for students with “gender identity issues.” Grimm suffered from stigma, urinary tract infections from bathroom avoidance, and from suicidal thoughts…

It’s Five Minutes to Midnight

It’s Five Minutes to Midnight

Americans cannot afford to sit quietly and ignore the growing hysteria. We in America stand on the threshold of an unprecedented madness as we allow our nation to be undermined by those who would destroy all that generations of Americans have fought and died for. It is 1939 again, and we are the comfortable Europeans denying the growing threat of the Third Reich…

Header

Your Source for Free Speech, Talk Radio, Podcasts, and News.

 

Here we take on the challenges of our generation so that we can preserve future generations.

iHeartRadio

The APPS are free; the mission is priceless!

Free APP

Podcast Networks

Apple Podcasts
Google Podcasts
Spotify
Pandora
Tunein
iHeart
Stitcher

Subscribe and Listen on Your Favorite APP

Our Columnists and Show Hosts

Empowering and mentoring conservative trailblazers from Generation Z to win!

Apple Podcasts

Turning Point Action is Recruiting Precinct Chairs - Become a Grassroots Warrior Today!

Apple Podcasts

URGENT - KEEP NINE
Please join us to protect the Supreme Court:
Sign the Petition!

Apple Podcasts

The LATINO USA EXIT from the Democrat Party, click for details...

Apple Podcasts

Fighting corporate censorship and ensuring voter integrity...

Apple Podcasts

Support wounded and fallen police officers. The Wounded Blue.

Apple Podcasts
Share via
Copy link
Powered by Social Snap