https://supreme.justia.com/cases/federal/us/594/20-107/#tab-opinion-4442715
A California regulation provides that representatives of a labor organization may enter an agricultural employer’s property for purposes of union organizing. They may do so during four months of the year, one hour before the start of work, one hour during an employee lunch break, and one hour after work. The question before us is how to characterize this regulation for purposes of the Constitution’s Takings Clause.
Does the regulation physically appropriate the employers’ property? If so, there is no need to look further; the Government must pay the employers “just compensation.” U. S. Const., Amdt. 5; see Arkansas Game and Fish Comm’n v. United States, 568 U.S. 23, 31 (2012) (“ ‘[W]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner’ ”). Or does the regulation simply regulate the employers’ property rights? If so, then there is every need to look further; the government need pay the employers “just compensation” only if the regulation “goes too far.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (Holmes, J., for the Court); see also Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978) (determining whether a regulation is a taking by examining the regulation’s “economic impact,” the extent of interference with “investment-backed expectations,” and the “character of the governmental action”); Arkansas Game and Fish Comm’n, 568 U. S., at 38–39 (listing factors relevant to the character of the regulation).
The Court holds that the provision’s “access to organizers” requirement amounts to a physical appropriation of property. In its view, virtually every government-authorized invasion is an “appropriation.” But this regulation does not “appropriate” anything; it regulates the employers’ right to exclude others. At the same time, our prior cases make clear that the regulation before us allows only a temporary invasion of a landowner’s property and that this kind of temporary invasion amounts to a taking only if it goes “too far.” See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434 (1982). In my view, the majority’s conclusion threatens to make many ordinary forms of regulation unusually complex or impractical. And though the majority attempts to create exceptions to narrow its rule, see ante, at 17–20, the law’s need for feasibility suggests that the majority’s framework is wrong. With respect, I dissent from the majority’s conclusion that the regulation is a per se taking.
I
“In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the Court has recognized few invariable rules in this area.” Arkansas Game and Fish Comm’n, 568 U. S., at 31; see also Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979) (“[T]his Court has generally ‘been unable to develop any “set formula” for determining when “justice and fairness” require that economic injuries caused by public action be compensated by the government’ ”). Instead, most government action affecting property rights is analyzed case by case under Penn Central’s fact-intensive test. Petitioners do not argue that the provision at issue is a “regulatory taking” under that test. Instead, the question before us is whether the access regulation falls within one of two narrow categories of government conduct that are per se takings. The first is when “ ‘the government directly appropriates private property for its own use.’ ” Horne v. Department of Agriculture, 576 U.S. 351, 357 (2015). The second is when the government causes a permanent physical occupation of private property. See Lingle v. Chevron U. S. A. Inc., 544 U.S. 528, 538 (2005). It does not.
A
Initially it may help to look at the legal problem—a problem of characterization—through the lens of ordinary English. The word “regulation” rather than “appropriation” fits this provision in both label and substance. Cf. ante, at 6. It is contained in Title 8 of the California Code of Regulations. It was adopted by a state regulatory board, namely, the California Agricultural Labor Relations Board, in 1975. It is embedded in a set of related detailed regulations that describe and limit the access at issue. In addition to the hours of access just mentioned, it provides that union representatives can enter the property only “for the purpose of meeting and talking with employees and soliciting their support”; they have access only to “areas in which employees congregate before and after working” or “at such location or locations as the employees eat their lunch”; and they cannot engage in “conduct disruptive of the employer’s property or agricultural operations, including injury to crops or machinery or interference with the process of boarding buses.” §§20900(e), (e)(3), (e)(4)(C) (2021). From the employers’ perspective, it restricts when and where they can exclude others from their property.......................................
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