Skip to main content

SCOTUS to Decide Whether There Is a Fundamental Right to Kick People Off Your Property


The Supreme Court of the United States will hear oral arguments Monday in Cedar Point Nursery v. Hassid, a case about the union rights of farmworkers. It could impact the future of anti-discrimination law and much more.

The plaintiffs in the case are two California fruit producers who are suing over a 1975 state regulation that allows union organizers to have temporary access to an agricultural employer’s property during non-work hours. The law’s rationale is to support workers’ right to unionize by allowing workers access to their workplace premises for after-hours meetings.

California law requires agricultural businesses to allow labor organizers onto their property three times a day for 120 days each year. The state contends that the regulation is necessary in the specific context of farming: farmworkers tend to be inaccessible to union organizers through other channels, and farm properties lack parking lots or public areas that other workers typically use for gathering. From California’s brief:

[Farmworkers] are highly migratory, moving to follow the harvest every few weeks or months; they often live in temporary housing, sometimes on their employer’s property; they frequently lack access to modern telecommunications technology; many speak only indigenous languages; and many are illiterate even in their native language. The Board’s regulation authorizes a limited number of organizers to access the property of agricultural employers, for brief periods, during non-work hours, solely for the purpose of discussing organizing with employees, and only after notifying the Board and the employer.

Cedar Point Nursery and Fowler Packing Company sued to have the law invalidated, and their argument is based on land use. They say that the law allowing union organizers to meet with workers on their property is an easement that amounts to a per se “taking” — something that would require compensation under the Fifth Amendment.

The after-hours union meetings don’t disrupt the employers’ businesses, and the state of California isn’t actually taking the property — so to make a Fifth-Amendment argument, the plaintiffs needed to frame their loss as interference with a guarantee that is constitutionally protected. They chose the “right to exclude unwanted persons.” In other words, the California unionizing regulation deprives the owners of their inherent property right to kick people off their land.

A panel of the Ninth Circuit sided with California, as did the district court. The panel said that because the regulation did not amount to a physical taking because it did not “allow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year.” The panel also ruled that the statute wasn’t a regulatory taking because the only property right affected was the right to exclude — and that’s simply not enough.

Now, SCOTUS will decide whether the Fifth Amendment protects a right to exclude on par with other inherent property rights. If the justices side with the landowners and agree that the regulation amounts to a taking, it would mean the regulation cannot continue to operate without California paying compensation for its “taking” of the land. That’s novel in itself, but there’s far more drama to be had outside the arena of farming and unionizing.

The fruit-producer plaintiffs argue that the right to exclude should take its rightful place among the most sacred of protected interests: fundamental rights.

When a right is “fundamental,” any law abridging that right triggers the highest level of constitutional scrutiny. Accordingly, a state regulation that interferes with a fundamental right must be narrowly tailored to achieve a compelling state interest in order to pass constitutional muster. In short, state regulations fail almost always fail this test, because the right being protected has been deemed basically untouchable. (Other fundamental rights include the right to marry, the right to privacy, freedom of religion, and freedom of assembly.)

In an email to Law&Crime, Pacific Legal Foundation attorney Wen Fa, who represents the petitioner fruit sellers in the litigation, explained his clients’ position in the case:

The Constitution prohibits government from requiring you to allow unwanted strangers into your property. The California regulation here is unconstitutional because it forces property owners to allow unwanted union activists onto their property, and violates the property owners’ fundamental right to exclude trespassers.

However, Aaron Tang, a constitutional law professor and former clerk to Justice Sonia Sotomayor, warned in a Washington Post piece Thursday that as devastating as a ruling for the plaintiffs would be in the context of unions, its real danger lies outside far outside the context of employment law.

Tang writes:

The dispute threatens havoc just as great outside the union context. Consider state laws that permit child protection inspectors to make unannounced home visits. Now suppose a homeowner suspected of abuse or neglect wants to keep the inspector out. Under the challengers’ logic, such individuals would have a Fifth Amendment right to do so — unless the government paid the suspected abuser to access the property. The same problem would ensnare nursing home visits and food safety inspections.

Indeed, we have seen anti-discrimination ordinances challenged on the grounds that they interfere with First Amendment rights; a ruling that the “right to exclude” is fundamental would mean an entirely separate basis for bringing legal challenges, rooted in property law (a legal landscape far less politically-charged than religious freedom). The case’s potential for broad impact is underscored by the more than 30 amicus briefs submitted to the Court by interested yet uninvolved parties.

As for the justices, their position in the case poses some intriguing questions. The Court decided a landmark union case in 2018; it ruled that an employee who is not a member of a union could not be forced to pay union fees for the collective bargaining done on his behalf. In that case, conservative justice Samuel Alito penned a decision joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch. Justices Sotomayor, Elena Kagan, Ruth Bader Ginsburg, and Stephen Breyer dissented.

A conservative majority might similarly side against the pro-union ordinance in the Cedar Point litigation. However, if decided on Fifth Amendment grounds, such a decision threatens to create just the kind of chaos the conservative justices usually endeavor to avoid.

Oral arguments in the case are scheduled for at 10:00 a.m. on Monday, March 22, 2021.

[Photo by Samuel Corum/Getty Images]

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime:

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos