Issues & Insights
Jarek Tuszyński

Supreme Court Wisely Leaves Regulatory Reform To States

In the recently concluded Cedar Point case, the U.S. Supreme Court (SCOTUS) stood with property owners against unwanted intrusions authorized by the California state government. Chief Justice John Roberts explained in his majority opinion that allowing unions to freely come onto privately held land was a violation of owners’ constitutional rights, even if unions “only” had fleeting access to the land. The seemingly sweeping ruling declines to extend this logic to things like regulatory inspections overseen by state workers. The limited scope of the ruling should serve as a powerful reminder to limited-government advocates that a conservative court is not a panacea to bureaucratic overreach. Regulatory reform must come through legislative and executive processes, not the potentially capricious decision of a court ruling.

The central issue in the Cedar Point case was the constitutionality of a California law that allowed unions access to the farmers’ property in order to “solicit support for unionization.” The law’s supporters argued that this “taking” of land was not automatically illegal because the law limited union access to three hours per day and 120 days per year. But that line of reasoning was not enough to persuade the judges. SCOTUS struck down the law in a 6-3 decision, emphasizing that “[t]he right to exclude is ‘universally held to be a fundamental element of the property right’” in land.

It’s easy to overstate the significance of a SCOTUS ruling, especially during this era of hyper-partisanship. Slate contributor Mark Joseph Stern calls the Cedar Point ruling, “a crushing blow to organized labor, which often relies on workplace access to safeguard workers’ rights.” In reality, the case is less about the right to bar unions from one’s property than the taking of one’s property without the “just compensation” mentioned by the Fifth Amendment. Justices such as Amy Coney Barrett suggested that this compensation could total as little as $50 for a union site visit. Small site fees needn’t be insurmountable for labor organizations such as the United Farm Workers (UFW), which receives taxpayer dollars from the California state legislature to fund their health insurance plan. The trouble is that the UFW is not popular enough among farm workers, who have repeatedly voted to leave the organization. If unions are too unpopular to collect dues, they will not be able to nab the necessary funds to justly compensate property owners for traipsing onto their lands.

But, even if unions can’t muster the compensation required under the Fifth Amendment, the ruling may not have much practical impact. If California lawmakers believe that farm workers aren’t adequately being protected in their state, they can simply pass new regulations that require government inspectors to certify adequate conditions. Judging by his majority opinion, Roberts seems to have no problem with this course of action. He writes: “The government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking … government health and safety regimes will generally not constitute takings.”

The general idea is that the government ultimately grants permission for a business to operate in a certain area and can place restrictions on a business’ activity within reason. This finding is hardly surprising even in a conservative court. Longstanding SCOTUS precedent gives broad discretion to the legislative branch to manage economic policy.

Conservatives and libertarians hoping for a more sweeping outcome may be disappointed, but it is encouraging that the Court is refraining from judicial activism. Regulatory reform is certainly possible even if it seems that lawmakers and executive officials are reluctant to give up their power. California could look for inspiration in states such as Idaho, which cut or simplified three-quarters of its regulatory code in one year. These efforts have included the reform of occupational licensing rules, which effectively make it impossible for many low-income workers to pursue their dreams.

Heavily regulated states such as California have plenty of red tape to cut out. SCOTUS’ ruling provides an invitation to nix these rules without relying on dictates from the bench. Elected officials can and must do even more to help property owners in the wake of Cedar Point.

Ross Marchand is a senior fellow for the Taxpayers Protection Alliance.

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Ross Marchand

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