he Supreme Court has, in recent years, begun to slow reversal of its customary deference to the legislative and executive branches of government. One example is Horne v Department of Agriculture, 576 US 351 (2015), where the Court held that a law requiring raisin growers to set aside a percentage of their crop was an unconstitutional taking. In another example, three later, the Court held that state laws requiring public employees to pay union dues, or the equivalent, as a condition of public employment violated the free expression rights of those public employees who disagreed with the union. Janus v AFSCME Local 25, 585 U. S. ___ (2018). This term the Supreme Court recent took another, similar, step in Cedar Pointe Nursery v Hassid, ___ U. S. ___ (2021), holding that a California law requiring farmers to permit union organizers on their property for up to three hours a week 120 days a year was an unconstitutional taking in violation of the Fifth Amendment to the federal constitution.
The Court split 6-3 and the majority opinion, written by Chief Justice Roberts, features ringing language concerning the relationship between property rights and personal liberty, declaring:
As John Adams tersely put it, “property must be secured, or liberty cannot exist.” 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. (Cleaned up).
Id., slip op., at 5.
Consistent with this sentiment, the Court’s majority easily concluded the California law at issue was no mere “regulation” of property rights that may be balanced against union interests. Rather, this state law deprived the owners of the right to exclude the union organizers if they chose to do so. This right, the right of exclusion, is an indispensable property right from the Court’s perspective. Thus, California’s attempt to deprive its farmers of the right to exclude union organizers was a per se taking.
The Court’s majority did distinguish the right of exclusion, central to its holding, from various governmental searches and inspections that also touch on property owners' rights of exclusion, but only occasionally and temporarily (e.g., administrative and regulatory searches). Justice Kavanaugh, in concurrence, noted the more interesting dilemma posed by the Supreme Court’s decision in NLRB v Babcock & Wilcox Co., 351 U. S. 105 (1956). In a case like Babcock & Wilcox, where the union did not have access to alternative channels to communicate with employees because they lived on company property, it would be “necessary,” at least in Justice Kavanaugh’s opinion, for the government to require the employer to permit union organizers on company property.
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