Yesterday’s Union-Busting Supreme Court Decision Was a Segregationist Throwback

[ZiprHead]

The court’s decision in Cedar Point Nursery v. Hassid will reverberate throughout the labor movement and far beyond.

The constitutional issue at the heart of the case was the Fifth Amendment’s protection against the government’s use of eminent domain, also known as “takings” in the parlance of Republicans, who excel at making things sound scary. The Fifth Amendment says that private property should not be taken for public use “without just compensation.” Supreme Court precedents have outlined two different kinds of government takings that trigger compensation: regulatory takings and per se takings.

In general, regulatory takings happen when some operation of law restricts how a property owner can use their own stuff. If the government tells me I have to allow turtle hatchlings to waddle past my house on their way to the ocean once a year without my blocking them, that may be a regulatory taking. I may or may not be entitled to compensation for it, even if the government prevents me from enjoying my property’s yearly turtle boon in a soup.

Per se takings are supposed to be a little more straightforward. The government, or people operating under the government’s authority, have to physically seize the property. If the government wants to raze my house to the ground to create a turtle highway, that’s a per se taking and I’m definitely entitled to fair market compensation for my home.

The issue in Cedar Point Nursery should have been about regulatory takings. Cedar Point Nursery is a 300-acre strawberry farm in Northern California. It was required by California law to allow union organizers access to the farm three times a day, 120 days a year, so that those organizers could talk to the farmworkers about their rights. The organizers were not allowed to disrupt farm work: Their access times were limited to early in the morning when workers were showing up, late in the evening when workers were going home, and during the lunch break. I would argue that such access isn’t a taking at all, but, to the extent that it is, it’s clearly a regulatory taking. Cedar Point paymasters didn’t have to do anything, and they weren’t being deprived of their property or of any labor that would normally be accomplished on their property. All Cedar Point owners had to do was allow the union organizers on their land and not eat them when they showed up.

But that was too high a bar for Cedar Point, and Roberts and the conservatives agreed: They didn’t just rule that the union access statute was a taking; they ruled that it was a per se taking. They ruled that merely allowing organizers on Cedar Point property was the equivalent of having property seized by the government. Roberts argues: “California’s access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking.” He writes that the “right to exclude” is among the most fundamental property rights, and that it was violated by the government’s giving organizers access to the laborers.

By putting this in the category of a per se taking, Roberts adopted the logic of Barry Goldwater and other segregationists during the battle over the Civil Rights Act. These white supremacists were the first to argue that the right to “exclude” should allow white business owners the right to deny service to Black customers. They came up with the novel idea that the Fifth Amendment somehow nullified the government’s ability to promote the equal protection and due process guarantees of the 14th Amendment without just compensation—as if my tax dollars should compensate some racist white man for his sadness at allowing me to exist in his store. Racist people have some freaking nerve, I tell you.

The Supreme Court rejected that argument, unanimously, in 1964, but Roberts resurrected it yesterday. All of a sudden, the right to exclude is back on the table as something that property owners can use to thwart basic human rights, and we’d be foolish to think that this rollback of rights will stop with farmworkers in California. Harvard Law professor Niko Bowie tweeted out a few examples of where Roberts’s logic could lead next: “Antidiscrimination laws ‘take’ employers’ ‘right to exclude’ workers of color, pregnant workers, and LGBTQ+ workers.… Fair housing laws ‘take’ landlords’ ‘right to exclude’ renters of color, families, and renters with vouchers. Rent control laws ‘take’ landlords’ ‘right to exclude’ renters unable to afford market rates.… Endangered species laws ‘take’ landowners’ ‘right to exclude’ conservationists. Environmental laws ‘take’ landowners’ ‘right to exclude’ inspectors who are needed to enforce their restrictions.”

In his dissent, Justice Stephen Breyer also listed a litany of “ordinary regulations” that require temporary entry onto private property and explained that all of those regulations are now in question because of Roberts’s weaponization of the takings clause. What’s going to happen the next time a health inspector shows up at a restaurant to check what’s being put into the soup?

 

[Rhea]

Wow. That reveals a lot about what this means. Thanks for the info.
Doesn’t feel right at all.

 

[Angry Floof]

This is the ruling of a privileged class using "they're invading our property" messaging. It's astounding, but not surprising, how far people with the power to do so will go to protect and expand bigotry as a national value.

 

[Lumpenproletariat]

There is no legitimate social need to abridge the property rights of employers in order to promote labor unions.

In general, regulatory takings happen when some operation of law restricts how a property owner can use their own stuff. . . .

The issue in Cedar Point Nursery should have been about regulatory takings. Cedar Point Nursery is a 300-acre strawberry farm in Northern California. It was required by California law to allow union organizers access to the farm three times a day, 120 days a year, so that those organizers could talk to the farmworkers about their rights.

This law should have been struck down. Any curtailment of property rights, whether it's called "takings" or "eminent domain" or other term, violates the U.S. Constitution's protection of life, liberty, and property (if there was not "due process").

Of course you could say that it's "due process" as long as a law was passed which curtailed these rights. So the state could pass a law saying you're not allowed to practice gay sex on your property, and this is "due process" because a law was passed.

But it's not good enough to just pass a law. That law has to pass a test, showing some public benefit, or necessary public need, which is served. So just passing a law based on someone's ideological prejudice about what people should or should not do is not enough. I.e., just because you have some Marxist theory that dirty capitalist employers must give their workers anything they demand is not sufficient to show public need.

It has not been proved that labor unions serve a necessary public need. Possibly a majority of the population does believe this, just like a majority might believe gay sex is dangerous to the nation. But no evidence has ever been shown that labor union collective bargaining serves a necessary public need.

Collective bargaining is fundamentally an anti-competitive activity which restricts trade between buyers and sellers and producers and consumers operating freely and setting prices according to the law of supply-and-demand. When companies collude to set prices, it is an illegal cartel, and companies can be prosecuted and penalized for it. Even when single private contractors collude to set prices it is illegal, such as a single-proprietor business competing with another, or a street vendor competing with another.

It's OK to say that such collusion is not usually prosecuted, because of the inconvenience of policing all the small companies and independent contractors. However, there should be no law which imposes a cartel onto society, encouraging competitors to collude to set prices, which is what labor unions do, setting the price for labor in an anticompetitive manner.

Enforcing antitrust law is often (usually) not practical, but it is practical for the state to do nothing to promote any cartel or any anticompetitive practices.

Also, it's idiotic to think workers are unable to organize and participate in their cartel unless the business provides them the location. If those workers are so disinterested in the union that they would not make the effort to attend a meeting or other union activity, then those workers can easily do without a union anyway. Unless you think they are crybabies who must be led by the hand and spoon-fed Marxist propaganda by their labor bosses who are effectively high priests appointed over them to indoctrinate them and whip them along and brainwash them into the Leftist catechism which has to be imposed onto them, like worshipers in Church are subject to the priests and bishops and other overlords, because they're too immature and vulgar to do their own thinking. If that's what the workers are, then maybe there's an argument to be made that the employers must provide access to the union organizers on company property.

The organizers were not allowed to disrupt farm work: Their access times were limited to early in the morning when workers were showing up, late in the evening when workers were going home, and during the lunch break. I would argue that such access isn’t a taking at all, but, to the extent that it is, it’s clearly a regulatory taking.

But it is not legitimate regulation, because there is no demonstrable public need being served by this curtailment of private property rights. You don't have the science or the data to show a public need being served. Rather, a cartel is served which restricts competition in the marketplace and definitely inflicts harm onto all consumers, as all cartel activity does. Preventing the market from setting prices (on ANY commodities, including labor) definitely puts upward pressure on prices, which is harmful to all consumers, and is thus made illegal in antitrust law.

Cedar Point paymasters didn’t have to do anything, and they weren’t being deprived of their property or of any labor that would normally be accomplished on their property. All Cedar Point owners had to do was allow the union organizers on their land and not eat them when they showed up.

"Aw, what's the harm?!" isn't good enough. You have to show a pressing public need served if you impose any law restricting private property rights. No such public need is demonstrated in this case.

But that was too high a bar for Cedar Point, and Roberts and the conservatives agreed: They didn’t just rule that the union access statute was a taking; they ruled that it was a per se taking. They ruled that merely allowing organizers on Cedar Point property was the equivalent of having property seized by the government. Roberts argues: “California’s access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking.” He writes that the “right to exclude” is among the most fundamental property rights, and that it was violated by the government’s giving organizers access to the laborers.

The protection of the right has to prevail if there's no demonstrable public benefit served, as there is none in this case. You cannot say it's OK to abridge our Constitutional rights as long as the abridgment is minor enough and would serve some cause which is popular among some of the population.

Suppose the abridgement was to impose a statue of Jesus, or impose a nativity scene or religious symbol, or something else which part of the population is sympathetic to -- and force the property owner to accept this symbolism even though they preferred to exclude it from their property. How about forcing them to play music they dislike but which is popular, and maybe a majority of the population think this music has a nice effect on people and so should be imposed everywhere, even on someone's private property.

You can't demand that someone's Constitutional rights be abridged just because there is some popular sentiment for some cause or symbol or ideology that is promoted by some of the population -- even if it's a majority of the population who identify with it. Private individual property ownership has a value in the society and is entitled to protection even against the majority if no one can give demonstrable evidence that it would serve the public interest to abridge that right.

By putting this in the category of a per se taking, Roberts adopted the logic of Barry Goldwater and other segregationists during the battle over the Civil Rights Act. These white supremacists were the first to argue that the right to “exclude” should allow white business owners the right to deny service to Black customers. They came up with the novel idea that the Fifth Amendment somehow nullified the government’s ability to promote the equal protection and due process guarantees of the 14th Amendment without just compensation—as if my tax dollars should compensate some racist white man for his sadness at allowing me to exist in his store. Racist people have some freaking nerve, I tell you.

This has nothing to do with the labor union case. It is obscene and defamatory to equate racism with property rights protection.

The Supreme Court rejected that argument, unanimously, in 1964, but Roberts resurrected it yesterday. All of a sudden, the right to exclude is back on the table as something that property owners can use to thwart basic human rights, and we’d be foolish to think that this rollback of rights will stop with farmworkers in California.

It is not a "basic human right" to impose labor union organizing onto property owners. Owners do have "the right to exclude" someone from their property who is not performing a necessary public service. You denigrate the civil rights movement to equate it with denial of basic property rights, which includes the right to restrict who can be on your property.

Harvard Law professor Niko Bowie tweeted out a few examples of where Roberts’s logic could lead next: “Antidiscrimination laws ‘take’ employers’ ‘right to exclude’ workers of color, pregnant workers, and LGBTQ+ workers.…

Employers have the "right to exclude" applicants for many arbitrary reasons -- if the applicant has an unpleasant personality, is ugly, is fat, etc. etc. Employers may choose who to hire and not to hire. There is no logic or public need served by taking this right away from them. Forcing them to also hire ugly people or fat people and every other type they might discriminate against is not serving any public need. It is better for society to allow employers to discriminate against applicants for whatever reason, because there is no way to dictate which discrimination is harmful and which discrimination is not harmful.

Employers do discriminate by race or ethnicity in many cases, such as small family businesses which hire only Middle-easterners or Koreans or Mexicans etc. No one can show how there is any harm by allowing such discrimination. The principle of free choice by private individuals is more beneficial to society than trying to interfere with these private choices.

Fair housing laws ‘take’ landlords’ ‘right to exclude’ renters of color, families, and renters with vouchers. Rent control laws ‘take’ landlords’ ‘right to exclude’ renters unable to afford market rates.… Endangered species laws ‘take’ landowners’ ‘right to exclude’ conservationists. Environmental laws ‘take’ landowners’ ‘right to exclude’ inspectors who are needed to enforce their restrictions.”

There are too many different examples, and the logic differs from one case to another. In some cases it can be demonstrated that a public need is served by curtailing property rights, but not in other cases. You cannot simplistically lump them all together and condemn anyone as racist who disagrees with your interpretation. They're not all the same.

There is no compelling public need served by forcing employers to promote labor union organizing against their will. Until you demonstrate the necessary public need that is served, there is no case for abridging the company's 5th Amendment property rights.

In his dissent, Justice Stephen Breyer also listed a litany of “ordinary regulations” that require temporary entry onto private property and explained that all of those regulations are now in question because of Roberts’s weaponization of the takings clause. What’s going to happen the next time a health inspector shows up at a restaurant to check what’s being put into the soup?

The solution is to do your homework rather than imposing a simplistic formula to promote Leftist dogma in all cases.

This means satisfying the "due process" clause, and this does not simply mean that a law is passed abridging private property rights. That abridgment has to be based on a compelling public need which must be proved -- and if it is not, then "due process" is not satisfied. The legalistic basis can be the Preamble to the Constitution: " . . . to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty . . ."

The "general Welfare" phrase (and perhaps also the "Liberty" phrase) can be the ultimate test, calling for a utilitarian calculation of the harms and benefits of interfering with individual liberty in particular cases, putting value on individual free choice but also on public need. No one principle like "property rights" alone is Absolute and trumps everything else

Justice Breyer demeans himself to imply that ALL regulations are either illegal, or ALL regulations are legal, with no way to ever distinguish them, so that they must ALL be overruled, or that no regulation can ever be overruled. The above is probably a misquote and distortion of what Justice Breyer really said. How could any educated law professional suggest that every law ever written is either illegal and must be overturned, or that every law ever written is legal and must be upheld?

No legitimate jurist would ever interpret this "takings" case that way.

 

[Rhea]

Also, it's idiotic to think workers are unable to organize and participate in their cartel unless the business provides them the location. If those workers are so disinterested in the union that they would not make the effort to attend a meeting or other union activity, then those workers can easily do without a union anyway. Unless you think they are crybabies who must be led by the hand and spoon-fed Marxist propaganda by their labor bosses who are effectively high priests appointed over them to indoctrinate them and whip them along and brainwash them into the Leftist catechism which has to be imposed onto them, like worshipers in Church are subject to the priests and bishops and other overlords, because they're too immature and vulgar to do their own thinking. If that's what the workers are, then maybe there's an argument to be made that the employers must provide access to the union organizers on company property.

Whoh. Lotta emotional buzzwords in there.


But it is indeed reasonable to think that explaining collective bargaining rights to farm workers requires that those farmworkers have access to the message. Whihc, often living on the farm, they usually don’t.

 

[Lumpenproletariat]

Also, it's idiotic to think workers are unable to organize and participate in their cartel unless the business provides them the location. If those workers are so disinterested in the union that they would not make the effort to attend a meeting or other union activity, then those workers can easily do without a union anyway. Unless you think they are crybabies who must be led by the hand and spoon-fed Marxist propaganda by their labor bosses who are effectively high priests appointed over them to indoctrinate them and whip them along and brainwash them into the Leftist catechism which has to be imposed onto them, like worshipers in Church are subject to the priests and bishops and other overlords, because they're too immature and vulgar to do their own thinking. If that's what the workers are, then maybe there's an argument to be made that the employers must provide access to the union organizers on company property.

Whoh. Lotta emotional buzzwords in there.

That's what most labor union rhetoric is -- especially the speeches made at the workers in order to rally them and stampede them in the right direction.

But it is indeed reasonable to think that explaining collective bargaining rights to farm workers requires that those farmworkers have access to the message.

What's "the message"?

It's propaganda and dogmatism, not legitimate impartial objective information.

They're entitled to any dogmatism they want, as anyone is, but not provided to them by someone who philosophically disagrees with the dogmatism. If the union needs to promote its dogma or ideology, it should have to do it without the state (and thus all citizens) endorsing it and taking sides in a dispute.

No one has demonstrated the validity of labor union ideology or shown how it serves the public interest and is entitled to special endorsement by the state, or that public need requires a private owner to subsidize such ideology against its own interest and be deprived of its 5th Amendment rights.

. . . that those farmworkers have access to the message. Which, often living on the farm, they usually don’t.

This assumes the workers are helpless crybabies who must be led by the hand, like our "job creation" rhetoric turns employers into babysitters providing job slots where we put the rabble in order to keep them off the streets.

The premise is that the workers are inferior mindless brutes -- whether to be kept out of mischief, or needing "leaders" to enlighten them and uplift them from their vulgarity to higher levels of consciousness.