Escape Room: Implicit Takings After Cedar Point Nursery

61 Pages Posted: 7 Sep 2021 Last revised: 19 Apr 2022

See all articles by Lee Anne Fennell

Lee Anne Fennell

University of Chicago - Law School

Date Written: September 6, 2021

Abstract

In the June 2021 case of Cedar Point Nursery v. Hassid, the Supreme Court held that a California regulation that gave union organizers limited access to agricultural worksites (three hours a day, 120 days a year) amounted to a per se taking. The Court further opined that any governmental grant of physical access, no matter how time-limited or functionally constrained, similarly works a per se taking—unless one of the Court’s exceptions applies. This essay argues that Cedar Point is best understood as part of an ongoing campaign by the Court to selectively apply heightened scrutiny to property-facing governmental acts in ways that broadly entrench the status quo. The Court has effectively created an escape room into which physical impositions on owners are thrown wholesale, along with various bewildering means of possible extrication. Although Cedar Point makes little sense as part of an analytically coherent system for assessing when burdens on owners have gone “too far,” it works well as part of a selective scrutiny machine—one designed to preserve restrictions like zoning that serve landowners’ interests while scrutinizing and financially burdening regulations that do otherwise.

There is a vulnerability in the Court’s approach, however, if the goal is to knock out unwanted impositions on property owners: the Takings Clause allows the government to simply pay for what it takes. Thus, the Court’s elaborate escape room comes with a lighted exit sign located right above the cash register. And the amounts in question will often be trivial. By one back-of-the-envelope calculation, for example, California might be able to keep its labor access law in place for less than $5 per year per grower. Thus, for all its exclusion-fetishizing rhetoric, Cedar Point’s bark may prove worse than its bite.

Keywords: regulatory takings, implicit takings, physical appropriations, Takings Clause, right to exclude

Suggested Citation

Fennell, Lee Anne, Escape Room: Implicit Takings After Cedar Point Nursery (September 6, 2021). 17 Duke Journal of Constitutional Law & Public Policy 1 (2022), U of Chicago, Public Law Working Paper No. 775, Available at SSRN: https://ssrn.com/abstract=3918054 or http://dx.doi.org/10.2139/ssrn.3918054

Lee Anne Fennell (Contact Author)

University of Chicago - Law School ( email )

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Chicago, IL 60637
United States
773-702-0603 (Phone)

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