The court has held that a physical appropriation is a taking whether it is permanent or temporary the duration of the appropriation bears only on the amount of compensation due. There is no reason the law should analyze an abrogation of the right to exclude in one manner if it extends for 365 days, but in an entirely different manner if it lasts for 364. In his majority opinion, the chief justice effectively exploited this gap in Cedar Point by pointing out the odd discontinuities that would result if Loretto were taken literally: And so the term “permanent” becomes an art form-it would be extremely odd to say that no compensation was owing because of the shorter useful life of the cable box, or, alternatively, that only takings that last forever are compensable. Thus, in Loretto, Justice Marshall held that New York City’s authorization of a private company to place a small cable box on the roof of a local apartment house was a permanent taking, even though its expected useful life was at most a decade. So, on which side of the line does the California regulation fall? Unfortunately, the combination of permanent physical occupations and use restrictions does not exhaust the universe of all possible government actions. However, Penn Central cases are subject to a “balancing test” under which courts routinely find that the government interest is stronger than the private one, even for losses in value over 50 percent. The former is subject to a per se rule, which in practice means that the government’s duty to pay just compensation is excused only in very narrow circumstances.
The ostensible distinction between the two is that Loretto applies to physical entrances onto property that amount to “permanent physical occupations,” whereas Penn Central applies only to restrictions on the way in which a landowner can use his property. These cases introduced two wildly inconsistent regimes for deciding cases under the Takings Clause. The case does indeed reinterpret two well-established precedents: Penn Central Transportation Co. Prelogar, wrote a short letter to the Supreme Court withdrawing the earlier Trump brief, claiming that it was inconsistent with prior precedent.Īfter a fashion, both sides had a point. Sensing the size of the stakes, in March 2021, President Joe Biden’s acting solicitor general, Elizabeth B. The Trump administration wrote a powerful amicus brief explaining why the California legislation should be struck down. The court put that modest solution to one side to address the broader question of whether the firm’s constitutional right to exclude union representatives could be limited for reasons having nothing to do with traditional police power justifications, which would allow, for example, government inspectors to enter the premises to check for health and safety violations. The court struck down the CLRB regulation, holding that it amounted to an unconstitutional taking of the grower’s private property rights.Ī narrow decision would have left the CLRB rule in place by holding that the union had forfeited its access rights by exceeding the scope of its limited privilege to enter. Cedar Point, an agricultural grower, originally acquiesced, but then demanded that the union representatives leave the premises for “distracting” and “intimidating” its employees. The California board decreed that labor union representatives were entitled to enter an employer’s property for three hours per day for 120 days per year to solicit union support. The regulation, first announced in 1975, sought to balance the right of a labor union to organize agricultural workers under the California Labor Relations Act against a property owner’s exclusive right to possession of his land, long regarded as the key feature of private property. Hassid that a regulation of the California Labor Relations Board ran afoul of the Takings Clause. In what may be the Supreme Court’s most momentous takings decision in decades, which was handed down last week, the six-member conservative majority held in Cedar Point v.
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