The Illusions of Takings Law
This post was originally published on Legal Planet. Reprinted with permission.
For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn out to be mushy and murky. Judicial rulings that seem to expand the rights of property owners turn out to undermine those rights. The Court's decision last week in Cedar Point Nursery v. Hassid illustrates both points.
Cedar Point Nursery involved a California law giving labor organizers the right to go into a farm to talk with farmworkers, thereby interfering with the owner's ability to exploit its workers. (No, that's not quite the language the Court used.) The Supreme Court held that, because the government was authorizing an intrusion onto farmland, this was a taking of property that the government would have to pay for. Rick Frank wrote a great overview of the ruling's implications last week, but I want to dive deeper into a couple of points.
The Court's ruling seems simple enough …
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