Supreme Court Cedar Point Decision Will Have Devastating Consequences For Ag Workers
“Farmworkers remain some of the most exploited, working in unsafe conditions with rampant wage theft, sexual harassment, and retaliation.”
Just how bad was the Supreme Court decision in Cedar Point Nursery v. Hassid? Bad, really bad. And even worse yet.
This case sits at a three-pronged crossroad introducing new theories on property rights, limits local governments’ ability to conduct routine safety inspections, and undermines unions’ ability to organize in the agriculture sector, a vital means of countering a historically predatory industry for immigrants and low-wage workers.
“Labor laws have always been inextricably linked to race, class and immigration status and this case is no different,” Caitlin Vega, longtime labor lobbyist and founder of Union Made, told PRP.
“Farmworkers and domestic workers were excluded from federal labor laws because they were predominantly Black workers.
Today, farmworkers remain some of the most exploited, working in unsafe conditions with rampant wage theft, sexual harassment, and retaliation. Immigration laws are selectively enforced, often to punish workers seeking to organize.”
Split 6–3 on ideological lines, the conservative majority of the Court opened a gaping hole in the regulatory state — you know, the laws and regulations that protect workers, consumers, and tenants from abusive businesses — by concluding that California’s agricultural access regulation was a “per se” taking.
The Taking Clause of the Fifth Amendment says that the government, in essence, shall not take property without just compensation. It’s really meant for situations like when the government wants to condemn your house to build a highway.
But in this case?
The Supreme Court devised an entirely new category that automatically requires compensation. They decided that this regulation — which allows farmworker organizers onto the property of large agricultural growers — is an invasion that violates the Constitution.
Vega says that farmworkers are uniquely vulnerable due to the specifics of the worksite with many living in employer-provided housing and relying on employer-provided transportation.
“Some are migrants who move throughout the state or country following the harvest,” she says. “This makes the worksite the only possible place for them to seek union assistance, to learn about their rights, to join with others to fight for better conditions. To call union access to this type of ‘per se’ taking is to prioritize wealthy growers’ property rights over the heath, safety, and wellbeing of farmworkers.
“In addition, it ignores the fact that labor laws are meant to mitigate the profound imbalance of power between workers and employers, not exacerbate that power imbalance.”
This outcome is radical. And could have devastating consequences.
The Court did not need to go this far. If it had wanted to rule in favor of the growers, it could have utilized the Penn Central test, which looks at a range of factors to determine if this rule created a regulatory takings. That would have been an incorrect outcome, in my estimation, though at least defensible.
But that was not far enough for this Court. No, they adopted the Pacific Legal Foundation’s arguments in full.
In the majority opinion, Chief Justice John G. Roberts, Jr. anticipated a critique about the potential broad brush of the outcome and sought to cabin the ruling by distinguishing other types of “invasions” of private property that are common in a modern economy. There is a lot of hand waving, but I don’t think these distinctions hold up.
First, the majority contends that “isolated trespasses” are not a takings; that means having the government briefly come onto your land can’t be a taking. But that isn’t really the issue here. The Supreme Court wasn’t focused on the actual time spent by the labor organizers on the growers’ land, they focused on the fact that they could be on the land for up to three hours per day for 120 days per year.
Second, there are background obligations on landlords existing at common law when the Constitution was ratified. For example, property owners don’t have the right to create a nuisance on their land — they can’t allow disease to fester in a pond, for example. And if the state needs to come onto the land to deal with that issue, it’s not a taking. So, basically, once the problem gets bad enough that it’s apparent from someone else’s property, government inspectors can come in.
But by then isn’t it too late? The whole point of health and safety inspections is to prevent issues in the first place.
Third, the majority says that licensing schemes can require businesses to consent to certain types of inspections. It just has to be “proportionate” and there must be a “nexus” between the permit and the inspection. And here’s where it gets very tricky. The Supreme Court says that this regulation does not have the right nexus because the “access regulation is not germane to any benefit provided to agricultural employers or any risk posed to the public.”
I’m sorry! What? The regulation doesn’t provide a benefit to the business and doesn’t mitigate risk to the public? Regulations rarely provide benefits to businesses — businesses routinely try to kill regulations. The benefit they get is from being able to operate. The benefit they get is having workers who can survive on meager earnings. And collective action protects workers, their economic security, and public health more generally. That is indisputable.
Taking this narrow a stance on the impact and benefit of such a regulation is doomsday for others like it. Vega echoes my concerns.
“There is little attempt to even acknowledge the realities of the agricultural workplace. How can farmworkers learn about or exercise their rights if they have no access to the union? How can the public interest in protecting workers — ensuring a level playing field for law-abiding employers, maintaining safe worksites and a safe food supply — be served without access to employer premises?
In Labor, we say, ‘Which side are you on?’ I think the best explanation of this decision is that the Court was simply telling us whose side they deem worthy of protection.”
Last February, Public Rights Project wrote a brief about this specific issue, as there are so many regulations on the books that allow the government to come into a business or onto private property and inspect, talk to workers, and ask for documents. In fact, we submitted an entire appendix, which Justice Bryer cited in his dissenting opinion, outlining just a handful of these examples, ranging from animal control and entertainment venues to housing.
Now businesses will be further emboldened to challenge more regulations in court and government agencies will be reluctant to enforce them. Guess who loses out? Workers, consumers, and tenants. The Supreme Court continues to stack the deck against those whose rights need to be protected most.
“Working people have demanded every right they have ever won, in the streets, on strikes, even with their lives,” says Vega. “The decision is a clear indication that the struggle must continue, that we cannot take any rights for granted, and that we must demand a court that represents we the people.”
The cycle of profits over people continues.
