DOJ reverses month-old union access position

Citing a change of U.S. presidents, the Department of Justice reversed its position in a union access case before the U.S. Supreme Court, clarifying that the department now believes a California regulation giving organizers limited access to the property of employers "does not constitute a per se taking."

The DOJ's position in early January had been "that the [California] regulation effects a per se taking of petitioners' property," the agency said in a brief last week. "The purpose of this letter is to notify the court that the previously filed brief no longer represents the position of the United States."

The agency added its revised position "accords with the United States' long-standing view -- which the government has repeatedly articulated in this court and lower courts -- that physical entry on property short of a permanent occupation does not warrant the application of a categorical rule and is instead appropriately analyzed under a case-specific framework."

The agency's amicus curiae brief was one of several filed by unions and lawmakers last week. The petitioners are Cedar Point Nursery and Fowler Packing Co. Inc., two agricultural businesses that sued the Agricultural Labor Relations Board to challenge a rule the board issued in the 1970s, which allows labor organizers to access the property of agricultural businesses for three hours per day, up to 120 days each year. Cedar Point Nursery, et al., v. Victoria Hassid, et al., 20-107.

The 9th U.S. Circuit Court of Appeals rejected the businesses' argument that the rule violates their Fifth Amendment rights in 2019, but when the court denied the businesses' petition for rehearing last April, it also issued a dissenting opinion from eight justices who argued the majority misunderstood the property rights at issue.

In their petition to the Supreme Court, the businesses noted the rule does not require unions to compensate agricultural businesses for accessing their property. "The question presented is whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment," the businesses said.

In their own brief filed last week, U.S. Senators Alex Padilla, D-CA, Sheldon Whitehouse, D-RI, Jeff Merkley, D-OR, Richard Blumenthal, D-CT, and Cory Booker, D-NJ, questioned not only the legal argument behind the businesses' lawsuit, but the path the case took to reach the Supreme Court. The senators stated the businesses deliberately ignored claims that were obviously available to them, and instead chose to pursue "a far-reaching and extreme constitutional theory ... that was all but certain to lose in the lower courts" in order to get their case before the Supreme Court.

Calling this process "a simulacrum of real litigation," the senators added the process has proliferated in recent decades, and said it is followed by special interest groups aiming to change public policy. "The cottage industry that facilitates, orchestrates, and accelerates those desired outcomes lures the court into trespassing upon elemental protections of the Constitution: that cases be real, not fabricated; that plaintiffs be injured, not recruited; that procedure be followed, not jumped; and that the healthy process of 'winding' percolation not be subverted," the senators said. "It is also, in our respectful view, appropriate for the court to assure that no interest gains special access to the court through anonymously funded entities designed to create a facsimile of litigation that transports favored questions for favored interests around these safeguards and directly to the doorstep of this court."

Another brief filed by attorneys general from nearly 20 states, including Virginia, New York, and Illinois, said if the court sides with the businesses and restricts the access of unions to private property, it would "raise questions about the constitutionality of a wide range of state and federal regulations designed to protect public health and safety" -- including government inspections of factories and warehouses where food, drugs, or cosmetics are manufactured; inspections of businesses for asbestos; and inspections of workplaces to confirm they are complying with health and safety standards.

But in a January brief, the U.S. Chamber of Commerce contested this view. "The chamber files this brief not only to urge the court to reverse the Ninth Circuit's contrary view, but also to explain that doing so will not threaten reasonable governmental inspections of private property to ensure product or workplace safety," the organization said, adding such inspections are generally lawful under the Fourth Amendment or the doctrine of unconstitutional conditions, which permits the government to require a party to allow reasonable inspections as a condition of giving that party a license.