Amicus Curiae Brief — Cedar Point Nursery, et al., Petitioners v. Victoria Hassid, et al.
Supreme Court briefJan 7, 2021
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No. 20–107
In the Supreme Court of the United States
__________
CEDAR POINT NURSERY AND FOWLER PACKING
COMPANY, INC., PETITIONERS
v.
VICTORIA HASSID, IN HER OFFICIAL CAPACITY AS CHAIR
OF THE AGRICULTURAL LABOR RELATIONS BOARD,
ET AL., RESPONDENTS
__________
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
__________
BRIEF FOR THE CHAMBER OF COMMERCE OF
THE UNITED STATES OF AMERICA AS AMICUS
CURIAE IN SUPPORT OF PETITIONERS
__________
MICHAEL W. MCCONNELL
Wilson Sonsini
Goodrich & Rosati, PC
650 Page Mill Rd.
Palo Alto, CA 94304
(650) 493-9300
DARYL JOSEFFER
TARA S. MORRISSEY
U.S. Chamber
Litigation Center
1615 H Street, N.W.
Washington, DC 20062
STEFFEN N. JOHNSON
Counsel of Record
JOHN B. KENNEY
Wilson Sonsini
Goodrich & Rosati, PC
1700 K Street, NW
Washington, DC 20006
(202) 973-8800
sjohnson@wsgr.com
Counsel for Amicus Curiae
QUESTION PRESENTED
Whether the uncompensated appropriation of an
easement that is limited in time effects a per se physical taking under the Fifth Amendment.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED......................................... i
INTRODUCTION AND STATEMENT OF
INTEREST OF AMICUS CURIAE .......................... 1
STATEMENT ............................................................ 2
SUMMARY OF ARGUMENT ................................... 3
ARGUMENT ............................................................. 8
I.
California’s requirement that petitioners
grant others physical access to their
property violates the Takings Clause. ............... 8
A. Stable and consistent interpretation
of the Takings Clause is essential for
business and investment. ............................. 9
B. The Access Regulation effects a per
se Takings Clause violation. ...................... 10
C. The duration of the organizers’
invasion of petitioners’ property goes
to the extent of compensation
required, not the existence of a per se
Takings Clause violation. ........................... 15
D. Neither PruneYard Shopping Center
v. Robins nor NLRB v. Babcock &
Wilcox Co. supports granting union
organizers physical access to
petitioners’ private property. ..................... 17
iii
II. A holding that California effected a per
se taking here would not threaten
traditional regulatory regimes that call
for governmental inspectors to access
private property. ............................................... 18
A. Under the doctrine of
unconstitutional conditions, being
required to admit government
inspectors onto private property is
frequently a reasonable condition of a
government-issued license. ........................ 19
B. When the government enforces
criminal or regulatory prohibitions, it
typically has Fourth Amendment
authority to conduct reasonable
searches of private property....................... 23
CONCLUSION ........................................................ 31
iv
TABLE OF AUTHORITIES
Page(s)
Cases:
Armstrong v. United States,
364 U.S. 40 (1960) .............................................. 20
Barron v. Baltimore,
32 U.S. (7 Pet.) 243 (1833) ................................. 12
Baxter v. Taber,
4 Mass. 361 (1808) ............................................. 11
Beckman v. Saratoga & S. R.R.,
3 Paige Ch. 45 (N.Y. Ch. 1831) .......................... 11
Bowman v. Middleton,
1 Bay 252 (S.C. 1792) ......................................... 11
Bradshaw v. Rogers,
20 Johns. R. 103 (N.Y. Sup. Ct. 1822) ............... 12
Camara v. Municipal Court,
387 U.S. 523 (1967) .................................. 7, 25, 27
Causby v. United States,
75 F. Supp. 262 (Ct. Cl. 1948) ........................... 15
City of Indianapolis v. Edmond,
531 U.S. 32 (2000) .................................... 7, 24–25
City of Los Angeles v. Patel,
576 U.S. 409 (2015) ............................................ 24
Colonnade Catering Corp. v. United States,
397 U.S. 72 (1970) .......................................... 7, 25
Dolan v. City of Tigard,
512 U.S. 374 (1994) ................................ 13, 17, 23
v
Donovan v. Dewey,
452 U.S. 594 (1981) ............................................ 26
Gardner v. Village of Newburgh,
2 Johns. Ch. 162 (N.Y. Ch. 1816) ...................... 11
Horne v. Dep’t of Agric.,
576 U.S. 350 (2015) .................................... 3, 9–10
Kaiser Aetna v. United States,
444 U.S. 164 (1979) .................................. 5, 13, 16
Koontz v. St. Johns River Water
Mgmt. Dist.,
570 U.S. 595 (2013) .................................. 6, 19, 23
Lechmere, Inc. v. NLRB,
502 U.S. 527 (1992) ...................................... 17–18
Loretto v. Teleprompter Manhattan
CATV Corp.,
458 U.S. 419 (1982) .......................... 3–4, 8, 13, 15
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992) ............................................ 4
Marshall v. Barlow’s, Inc.,
436 U.S. 307 (1978) ...................................... 27–29
Martin v. Occupational Safety & Health
Rev. Comm’n,
499 U.S. 144 (1991) ............................................ 28
Mississippi Power & Light Co. v. U.S.
Nuclear Regulatory Comm’n,
601 F.2d 223 (5th Cir. 1979) .............................. 22
New York v. Burger,
482 U.S. 691 (1987) .................................. 7, 25–26
vi
NLRB v. Babcock & Wilcox Co.,
351 U.S. 105 (1956) .............................. 5, 8, 17–18
Nollan v. Cal. Coastal Comm’n,
483 U.S. 825 (1987) ............................... 3, 6–8, 10,
13–14, 17, 22–23
Penn Central Transp. Co. v. City of
New York,
438 U.S. 104 (1978) .......................................... 4, 9
Pennsylvania Coal v. Mahon,
260 U.S. 393 (1922) .............................................. 4
Portsmouth Harbor Land & Hotel Co. v.
United States,
260 U.S. 327 (1922) .................................. 4, 13, 15
PruneYard Shopping Center v. Robins,
447 U.S. 74 (1980) ...................................... 5, 8, 17
Pumpelly v. Green Bay Co.,
80 U.S. 166 (1871) .............................................. 13
See v. City of Seattle, 387 U.S. 541 (1967) .............. 20
South Dakota v. Dole,
483 U.S. 203 (1987) ........................................ 6, 19
Thermal Sci., Inc. v. U.S. Nuclear
Regulatory Comm’n,
184 F.3d 803 (8th Cir. 1999) .............................. 22
United States v. Argent Chem. Labs., Inc.,
93 F.3d 572 (9th Cir. 1996) ................................ 29
United States v. Arvizu,
534 U.S. 266 (2002) ............................................ 24
United States v. Biswell,
406 U.S. 311 (1972) .................................. 7, 26, 30
vii
United States v. Causby,
328 U.S. 256 (1946) ...................................... 13–15
United States v. M/V SANCTUARY,
540 F.3d 295 (4th Cir. 2008) .............................. 28
VanHorne’s Lessee v. Dorrance,
2 U.S. (2 Dall.) 304 (C.C.D. Pa. 1795) ............... 11
Vapor Tech. Ass’n v. FDA,
977 F.3d 496 (6th Cir. 2020) .............................. 29
Windy City Meat Co. v. U.S. Dep’t of
Agric.,
926 F.2d 672 (7th Cir. 1991) .............................. 21
Wyman v. James,
400 U.S. 309 (1971) ...................................... 29–30
Statutes and Regulations:
Cal. Code Regs. tit. 8 ....................................... 1, 2, 14
77 Fed. Reg. 3912 .............................................. 27–28
7 U.S.C. § 136g(a)(1)(A)........................................... 21
7 U.S.C. §§ 1621–1629 ............................................ 21
15 U.S.C. § 717(s) .................................................... 22
15 U.S.C. § 717(t) .................................................... 22
15 U.S.C. § 717b ...................................................... 22
15 U.S.C. § 717m ..................................................... 22
15 U.S.C. § 2610(a) .................................................. 28
16 U.S.C. § 797(e) .................................................... 22
16 U.S.C. § 823b ...................................................... 22
18 U.S.C. § 921 ........................................................ 26
viii
21 U.S.C. § 331 (a) ............................................. 28–29
21 U.S.C. § 331 (b) ................................................... 29
21 U.S.C. § 331 (c) ................................................... 29
21 U.S.C. § 332 ........................................................ 29
21 U.S.C. § 334 ........................................................ 29
21 U.S.C. § 374 ........................................................ 29
21 U.S.C. § 374(a)(1) ............................................... 20
21 U.S.C. § 387b(6) .................................................. 29
21 U.S.C. §§ 451–470 .............................................. 21
21 U.S.C. §§ 601–695 .............................................. 21
21 U.S.C. § 606 ........................................................ 21
29 U.S.C. § 158(a)(1) ............................................... 17
29 U.S.C. § 665 ........................................................ 27
29 U.S.C. § 666(e) .................................................... 28
42 U.S.C. § 2201 ...................................................... 22
Constitutional Provisions:
U.S. Const. amend. IV ....... 2, 7, 18, 23–25, 27, 29–30
U.S. Const. amend. V .......... 1–4, 8–13, 15, 19, 24, 30
U.S. Const. amend. XIV .......................................... 10
Other Authorities:
1 William Blackstone, Commentaries .................... 10
2 J. Burlamaqui, The Principles of
Natural and Politic Law pt. III
(Nugent trans., 4th ed. 1792) (1747) ................. 10
ix
E. de Vattel, The Law of Nations (J.
Chitty trans. 1870) (1758) ................................. 10
H. Grotius, The Law of War and Peace (F.
Kelsey trans. 1925) (1646) ................................. 10
Montesquieu, The Spirit of the Laws,
bk. 26 (1748) ....................................................... 10
2 S. Pufendorf, The Law of Nature and
Nations (C. & W. Oldfather trans.
1934) (1688) ........................................................ 10
William B. Stoebuck, A General Theory of
Eminent Domain, 47 Wash. L. Rev.
553 (1972) ........................................................... 10
William Michael Treanor, The Original
Understanding of the Takings Clause
and the Political Process, 95 Colum. L.
Rev. 782 (1995) ............................................. 10, 13
C. van Bynkershoek, Quaestionum juris
publici libri duo (T. Frank trans.
1930) (1737) ........................................................ 10
INTRODUCTION AND STATEMENT
OF INTEREST OF AMICUS CURIAE1
Amicus the Chamber of Commerce of the United
States of America is the world’s largest business federation. The Chamber represents approximately
300,000 direct members and indirectly represents the
interests of more than three million companies and
professional organizations of every size, in every industry sector, from every region of the country. One
important function of the Chamber is to represent its
members’ interests in matters before Congress, the
Executive Branch, and the courts. To that end, the
Chamber regularly files amicus briefs in cases of concern to the nation’s business community.
This is such a case. Without providing just compensation, California’s “Access Regulation” undercuts
the right of businesses to exclude trespassers and protect their workplaces from disruptions. That uncompensated seizure of the most basic property rights
cannot be reconciled with the text, history, or purpose
of the Takings Clause, or with this Court’s precedents.
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. Such inspections
are generally lawful under the doctrine of unconstitutional conditions, which permits the government to
No counsel for any party authored this brief in whole
or in part, and no person other than amicus, its members,
and its counsel made a financial contribution to the preparation or submission of this brief. All parties have consented to the filing of this brief.
1
2
condition the grant of a license on the licensee’s willingness to allow reasonable inspections, or under the
Fourth Amendment, which permits the government
to conduct reasonable searches in furtherance of preventing potential harm from criminal or dangerous
activity.
STATEMENT
California’s “Access Regulation” gives third-party
union organizers the right to enter “the premises of an
agricultural employer for the purposes of meeting and
talking with employees and soliciting their support.”
Cal. Code Reg. tit. 8, § 20900(e). That right is broad:
Unions may access such properties three hours a day,
120 days a year, year after year. Id. § 20900(e)(3).
What does California give farmers and ranchers in exchange for allowing access to their land? Nothing.
Weary of union organizers—bullhorns in hand—
attempting to enter their properties, petitioners Cedar Point Nursery (a strawberry farm) and Fowler
Packing Company (a fruit distributor) filed suit. They
alleged that the Access Regulation, in granting a permanent easement over their property, effected a taking. The district court ruled for respondents (Pet. App.
B-13), and a divided Ninth Circuit panel affirmed,
treating the case as one involving a “regulatory action.”
Pet. App. A-14. Judge Leavy dissented, explaining
that the case involves “a physical, not regulatory, occupation.” Pet. App. A-29.
En banc review was denied. As Judge Ikuta, writing for eight judges in dissent, put it: “California property law and Supreme Court precedent make clear
that an easement is private property protected by the
Takings Clause”; and when the state allows people to
enter others’ private property, its actions are not just
3
“regulation,” they are a per se taking requiring just
compensation. Pet. App. E-10.
SUMMARY OF ARGUMENT
I. California’s Access Regulation effects a per se
taking requiring payment of just compensation. The
text, history, and purpose of the Takings Clause all
confirm that the Access Regulation unconstitutionally
seizes an easement from petitioners, and the Ninth
Circuit’s contrary view conflicts with this Court’s decisions in Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419 (1982), and Nollan v. Cal. Coastal
Comm’n, 483 U.S. 825 (1987).
I.A. The Takings Clause is foundational to fostering the business and investment needed for national
prosperity. Making the government pay just compensation for takings ensures both that private property
owners are treated fairly and that policymakers balance the benefits of public use against the costs to private owners. As James Madison and the other founders understood (see Federalist No. 62), absent a rule
requiring the public to pay when the public benefits,
factional politics run amok and farmers and manufacturers cannot invest with confidence. Only a categorical requirement of just compensation for physical
takings provides this assurance.
I.B. The Takings Clause embodies “principles of
Magna Carta” that “[t]he colonists brought” “with
them to the New World, including that charter’s protection against uncompensated takings.” Horne v.
Dep’t of Agric., 576 U.S. 350, 358 (2015). Applying
those principles, the Takings Clause historically was
invoked “against a direct appropriation of property”
by the government. Id. at 360.
4
Consistent with the text and history of the Takings
Clause, this Court has long recognized that government-mandated physical invasions of property constitute a taking requiring just compensation, even when
the government does not formally seize title and even
when the physical invasion is not continuous or “not
frequent[].” Portsmouth Harbor Land & Hotel Co. v.
United States, 260 U.S. 327, 329–330 (1922). Classifying the government’s action as a mere “regulatory
taking”—meaning a use restriction—misunderstands
the fundamental nature of takings jurisprudence.
Whereas restrictions on the use of property are subject to the nebulous standards of Pennsylvania Coal v.
Mahon, 260 U.S. 393 (1922), Penn Central Transp. Co.
v. City of New York, 438 U.S. 104 (1978), and Lucas v.
South Carolina Coastal Council, 505 U.S. 1003 (1992),
actual physical invasions trigger an absolute right to
compensation. The frequency and the degree of injury
are relevant to the amount of compensation, not to
whether compensation is due.
I.C. The Ninth Circuit held that the limited duration of union organizers’ access to petitioners’ property obviated the need for compensation. But that approach confuses the scope of the easement with the
question whether an easement exists. Because “constitutional protection for the rights of private property
cannot be made to depend on the size of the area permanently occupied,” the “extent of the occupation” is
instead “one relevant factor in determining the compensation due.” Loretto, 458 U.S. at 436–437. Year
after year, petitioners here must surrender their right
to exclude third parties from their agricultural businesses during designated periods—a classic easement.
To be sure, the easement is limited in scope—as easements typically are—but that is relevant to the
5
amount petitioners would be owed as compensation,
not the existence of a per se taking.
I.D. The Ninth Circuit erred in extending PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980),
a case addressing free speech rights in shopping malls
open to the general public, to this case, which involves
private property closed to others. This Court should
vindicate petitioners’ right to receive compensation
when the government imposes an easement of access
benefitting third parties. See Kaiser Aetna v. United
States, 444 U.S. 164, 180 (1979).
Nor does the outcome here turn on dictum from
NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956).
There, after holding that the company defendant had
a right to exclude union organizers from its parking
lots, the Court stated that the outcome might be different “if reasonable efforts by the union through
other available channels of communication” would not
“enable it to reach the employees with its message.”
Id. at 112. That dictum identified unique concerns
about communicating with employees that live on
their employers’ land and cannot be reached by other
modes of communication. This is analogous to an
easement by necessity. Those concerns are not present here; nor, given modern means of communication,
are they ever likely to recur.
II. Ruling for petitioners here would not endanger
the many longstanding health and safety inspection
regimes enforced by the federal government and the
States.
II.A. The doctrine of unconstitutional conditions,
which applies in a wide variety of contexts, generally
permits the government to condition government benefits on the waiver of a constitutional right, provided
6
that waiver is “germane[]” to the benefit’s purpose.
E.g., South Dakota v. Dole, 483 U.S. 203, 208 (1987).
In the land use context, the Court asks whether “there
is a ‘nexus’ and ‘rough proportionality’ between the
government’s demand and the effects of the proposed
land use.” Koontz v. St. Johns River Water Mgmt.
Dist., 570 U.S. 595, 599 (2013) (citation omitted).
Reasonable health and safety regulations in industries where market entry is heavily regulated by the
government are likely to satisfy the germaneness requirement. For example, Congress may insist on reasonable physical access to private manufacturing facilities as a condition of federal approval to market agricultural or pharmaceutical products. The purpose
of federal food and drug regulation is to facilitate licenses to market safe foods and drugs (the benefit);
and the government’s ability to inspect the licensed
products (the condition) is directly related to that regulatory objective.
Likewise, Congress may require federally licensed
power plants to submit to inspections by federal regulators. The purpose of such regulation is to facilitate
safe generation of electricity, and the government’s
need to inspect those plants is, again, directly related
to its regulatory objective. In short, requiring a sacrifice of the right to exclude third parties during the
conduct of reasonable government inspections that
benefit property owners will likely satisfy the doctrine
of unconstitutional conditions.
By contrast, when a condition is essentially unrelated to any benefit conferred on the property owner,
the requirement to grant an easement or other property interest is a bald exaction that requires compensation. In Nollan, for example, the easement effected
7
a taking because it was “impossible to understand”
how a lateral easement on beachfront property was
related to the burden that the new development might
impose on “visual access” to the beach. 483 U.S. at
838. As Nollan and similar cases demonstrate, the
unconstitutional conditions doctrine separates germane conditions from unrelated demands, and ruling
for petitioners would not alter that framework.
II.B. Reasonable searches and inspections are also
likely to be upheld under existing Fourth Amendment
precedent. That body of law provides courts with an
established framework for determining the conditions
under which administrative searches—particularly
those designed to protect health or safety—are lawful.
Although searches and seizures are “ordinarily unreasonable” absent “individualized suspicion of
wrongdoing,” this Court’s decisions recognize “limited
circumstances in which the usual rule does not apply.”
City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000).
For instance, when administrative searches outside of
closely regulated industries raise “considerations of
health and safety,” “the facts that would justify an inference of ‘probable cause’ to make an inspection are
clearly different from those that would justify such an
inference where a criminal investigation has been undertaken.” Camara v. Municipal Court, 387 U.S. 523,
538 (1967). For closely regulated industries, the bar
is even lower; under the Colonnade-Biswell doctrine,
“owner[s] of commercial premises in a ‘closely regulated’ industry” such as liquor sales or firearms dealing may be required, under certain conditions, to submitted to warrantless searches. New York v. Burger,
482 U.S. 691, 700–701 (1987) (discussing Colonnade
Catering Corp. v. United States, 397 U.S. 72 (1970)
(liquor); United States v. Biswell, 406 U.S. 311 (1972)
8
(firearms)). Neither of those frameworks would be upset by a ruling for petitioners, who object to trespasses
by non-governmental third parties. By reversing,
therefore, the Court can vindicate business owners’
property rights without endangering public safety.
ARGUMENT
I. California’s requirement that petitioners
grant others physical access to their property violates the Takings Clause.
This is a straightforward case as a matter of first
principles of takings law and this Court’s precedents.
California’s Access Regulation gives unwelcome third
parties the right to enter petitioners’ property at defined times and with no end date—a classic easement.
Under the Takings Clause, the government may not
seize such property interests without paying just compensation. That the scope of the easement is “limited”
—to three hours per day and 120 days per year, year
after year—goes to the scope of the property invasion
and the amount of compensation owed, not the existence of a taking. Loretto, 458 U.S. at 436–437.
PruneYard and Babock & Wilcox are not to the
contrary. Pruneyard turned on the fact that the mall
owner had “opened his property to the general public.”
Nollan, 483 U.S. at 832 n.1. Here, petitioners have
never opened their land to the public at large—and
they would like to keep it that way. Babcock’s dictum
concerned employees who live on their employers’
property and cannot easily be contacted—concerns
absent here. This Court should reverse.
9
A. Stable and consistent interpretation of
the Takings Clause is essential for business and investment.
No provision of the Constitution is more essential
than the Takings Clause for fostering the business
and investment necessary for national prosperity. As
James Madison wrote, “What farmer or manufacturer
will lay himself out for the encouragement given to
any particular cultivation or establishment, when he
can have no assurance that his preparatory labors
and advances will not render him a victim to an inconstant government?” The Federalist No. 62 381–
382.
Requiring the government to pay just compensation for takings is not just a matter of fairness, but a
practical guarantee that policymakers will objectively
weigh the benefits of public use against the costs to
private owners. When the public gets the benefit, the
public must pay the cost; there is no political gain
from overstating one or understating the other. But
if policymakers could require those who happen to
own desirable property to bear the entire cost, then
factional politics, not dispassionate balancing, would
be the rule, and farmers and manufacturers would be
unable to invest with any confidence.
Only the categorical requirement of just compensation for physical takings provides this assurance.
The nebulous four-part test for so-called “regulatory
takings” is infinitely malleable. When the Ninth Circuit slaps the label of “regulatory action” on the creation of an easement, as here, or on the seizure of personal property, as in Horne, this does not just substitute one doctrinal “test” for another—it effectively
drowns the takings claim in the murky swamp of Penn
10
Central. As explained below, the Constitution prohibits that result.
B. The Access Regulation effects a per se
Takings Clause violation.
1. The Takings Clause states that “private property” shall not “be taken for public use, without just
compensation” (U.S. Const., amend. V), and that rule
is “incorporated against the States by the Fourteenth
Amendment” (Nollan, 483 U.S. at 829). The Clause
embodies the “principles of Magna Carta” that “[t]he
colonists brought” “with them to the New World, including that charter’s protection against uncompensated takings.” Horne, 576 U.S. at 358.
The principle of just compensation is deeply embedded in both the common law and natural law traditions. Blackstone insisted that when the legislature
requires landowners to surrender property for the
common good, it must give them “a full indemnification and equivalent for the injury thereby sustained.”
1 William Blackstone, Commentaries *139. Grotius,
Montesquieu, Pufendorf, Burlamaqui, Vattel, and
Van Bynkershoek agreed.2 With limited exceptions—
takings of undeveloped land for roads, wartime requisitions, and seizure of the property of Tory Loyalists—
2 J. Burlamaqui, The Principles of Natural and Politic Law pt. III, ch. 5, §§ XXIV-XXIX (Nugent trans., 4th ed.
1792) (1747); E. de Vattel, The Law of Nations 112 (J.
Chitty trans. 1870) (1758); H. Grotius, The Law of War and
Peace 385, 807 (F. Kelsey trans. 1925) (1646); Montesquieu,
The Spirit of the Laws, bk. 26, ch. 15 (1748); 2 S. Pufendorf,
The Law of Nature and Nations 1285 (C. & W. Oldfather
trans. 1934) (1688); C. van Bynkershoek, Quaestionum juris publici libri duo 218–24 (T. Frank trans. 1930) (1737).
2
11
the colonies customarily paid compensation when taking property for public use. William B. Stoebuck, A
General Theory of Eminent Domain, 47 Wash. L. Rev.
553, 579–583 (1972); William Michael Treanor, The
Original Understanding of the Takings Clause and
the Political Process, 95 Colum. L. Rev. 782, 787–788
& n.28 (1995) (calling compensation “the norm” but
noting exceptions).
Building on that understanding, early cases such
as VanHorne’s Lessee v. Dorrance described the principle of just compensation as fundamental to “reason,
justice and moral rectitude.” 2 U.S. (2 Dall.) 304, 310
(C.C.D. Pa. 1795). 3 Baxter v. Taber, 4 Mass. 361
(1808), is particularly instructive. The statute there
appeared to authorize the courts to define prison
yards in a manner that gave those imprisoned for
debts the right to enter “every man’s house, and garden” to socialize or transact business—all “without being a trespasser.” Id. at 365, 368. The Supreme Judicial Court of Massachusetts rejected any such reading, however, explaining that it “would have been unconstitutional, as it would have been an appropriation
See also Bowman v. Middleton, 1 Bay 252, 252 (S.C.
1792) (“It was against common right, as well as against
magna charta, to take away the freehold of one man and
vest it in another, and that, too, to the prejudice of third
persons, without any compensation.”); Gardner v. Village
of Newburgh, 2 Johns. Ch. 162, 166 (N.Y. Ch. 1816) (the
principle of “fair compensation” is “adopted by all temperate and civilized governments, from a deep and universal
sense of its justice”); Beckman v. Saratoga & S. R.R., 3
Paige Ch. 45, 73 (N.Y. Ch. 1831) (“property shall not be
taken for the public use without just compensation”).
3
12
of private property to public uses without compensation to the proprietors.” Id. at 365. Baxter thus confirms the founding-era understanding that the Takings Clause bars the government from granting private persons a right to enter private property without
paying for it.
Until the Fifth Amendment was adopted, however,
compensation was generally made pursuant to specific statutes or via judicial decisions, not as a matter
of constitutional right.4 As of 1789, only Vermont and
Massachusetts had included just compensation requirements in their constitutions.
No State included a Takings Clause in its list of
items to be included in a Bill of Rights, and there is
no direct evidence illuminating James Madison’s reasons for including one. But we may reasonably surmise that the decision to do so was a product of the
heightened concern for protecting property in both the
liberal and republican traditions, which combined to
inspire the new Constitution. From a republican
point of view, property was considered essential to undergird an independent citizenry; from a liberal perspective, property was—along with life and liberty—
one of the triad of inalienable individual rights.
As late as 1822, for example, courts held that just
compensation was a “fundamental principle of government,” such that “any law violating that principle must be
deemed a nullity, as it is against natural right and justice,”
even though the Fifth Amendment did not bind the States.
Bradshaw v. Rogers, 20 Johns. R. 103, 106 (N.Y. Sup. Ct.
1822). But see Barron v. Baltimore, 32 U.S. (7 Pet.) 243
(1833) (dismissing for lack of jurisdiction because the Takings Clause applied only to the federal government).
4
13
Because the federal government did not exercise
the power of eminent domain until after the Civil War
and state constitutions only rarely contained takings
clauses, few early decisions interpret the scope of the
just compensation principle. In particular, scholars
disagree about whether use restrictions that “went too
far” and vitiated the value of property should be regarded as Fifth Amendment takings.
There is no serious scholarly disagreement, however, that physical invasions going beyond mere episodic torts required compensation. It was not necessary that the government take title; if the government
authorized the invasion of property by trespassers—
including water, 5 airplanes, 6 gunfire, 7 cable TV cables, 8 boats, 9 bikers, 10 or members of the public 11 —
this was uncontroversially a taking. Treanor, supra,
at 11, at 792, 804 n.117, 806–807; see Dolan, 512 U.S.
at 406 (Stevens, J., dissenting) (“There was nothing
problematic about that interpretation in cases * * *
that involved the actual physical invasion of private
property.”). In Portsmouth Harbor, for example, this
Court found that an unconstitutional taking would result if the United States repeatedly (though not continuously) fired gunshots over private property without providing compensation. 260 U.S. at 229–230.
5
Pumpelly v. Green Bay Co., 80 U.S. 166 (1871).
6
United States v. Causby, 328 U.S. 256 (1946).
7
Portsmouth Harbor, 260 U.S. at 330.
8
Loretto, 458 U.S. at 419.
9
Kaiser Aetna, 444 U.S. at 164.
10
Dolan v. City of Tigard, 512 U.S. 374 (1994).
11
Nollan, 483 U.S. at 825.
14
Likewise, in Causby the Court held that the government, in making “frequent and regular flights” over
private property “at low altitudes,” took an “easement”
—a “direct invasion” of the land requiring compensation. 328 U.S. at 258, 262. The Ninth Circuit’s notion
that physical invasions do not constitute compensable
takings if they are less than continuous and do not
destroy the property’s entire value lacks support in
history or precedent.
2. The categorical entitlement to compensation
for physical invasions fully applies to easements like
the one here. As this Court recognized in Nollan, “to
say that the appropriation of a public easement across
a landowner’s premises does not constitute the taking
of a property interest” would be “to use words in a
manner that deprives them of all their ordinary
meaning.” 483 U.S. at 831. As with other takings,
government-imposed easements disrupt the “right to
exclude”—“one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Ibid. (quoting Loretto, 458 U.S. at 433); see also
Causby, 328 U.S. at 268 (involving an “easement”).
These settled precedents lead inexorably to the
conclusion that the Access Regulation takes an easement in petitioners’ property, requiring compensation.
The Regulation requires petitioners to surrender their
right to exclude at defined times, so union organizers
can “meet[] and talk[] with employees and solicit[]
their support” on company property. Cal. Code Regs.
tit. 8, § 20900(e). The Regulation has no end date,
making the imposition permanent, yet petitioners
have received no compensation for compelled access to
their property. In short, California has effected an
unconstitutional taking.
15
C. The duration of the organizers’ invasion
of petitioners’ property goes to the extent
of compensation required, not the existence of a per se Takings Clause violation.
1. The conclusion that California’s Access Regulation effects a taking is not altered merely because the
easement has a “limited” scope. The scope of a physical invasion goes not to whether a taking has occurred,
but rather to the amount of compensation due.
Because “constitutional protection for the rights of
private property cannot be made to depend on the size
of the area permanently occupied,” the “extent of the
occupation” is instead “one relevant factor in determining the compensation due.” Loretto, 458 U.S. at
436–437. Even when limited in scope, “any permanent physical occupation is a taking.” Id. at 432 (emphasis omitted). In Portsmouth Harbor, for example,
“the imposition” of “a servitude” from the firing of government artillery “constitute[d] an appropriation of
property for which compensation should be made”—
even if the landowner’s property was “not frequently”
entered. 260 U.S. at 329–330 (citation omitted). Likewise, in Causby, the “amount of the award” required
by the Constitution turned on whether “the easement
taken [wa]s a permanent or a temporary one.” 328
U.S. at 268. Accordingly, on remand there, the Court
of Claims awarded damages from “the exercise of the
easement taken,” even though the government had
then abandoned the easement. Causby v. United
States, 75 F. Supp. 262, 264 (Ct. Cl. 1948). As these
decisions confirm, once the taking of an easement has
been proven, any limitation on the scope of the easement affects only the amount of compensation.
16
2. Those settled principles compel reversal here.
California law mandates that, year after year, petitioners must open their property to union organizers,
overriding petitioners’ ordinary right to exclude third
parties—a quintessential easement. That this ongoing easement is limited to “just” three hours a day and
120 days a year—as opposed to 24-7-365—is relevant
to the compensation owed. But it does not change the
fact that California has taken petitioners’ valuable
property interests. As in Causby, petitioners suffer a
“frequent and regular” “direct invasion” of their property. 358 U.S. at 259, 265. The effect of the Ninth
Circuit’s decision is to sanction government seizures
of private property without just compensation. That
result is untenable for business owners, particularly
those whose businesses depend on maintaining a controlled workspace, free from the invasive presence of
third parties.
Like all property owners, businesses are protected
by the Fifth Amendment’s requirement of just compensation for government takings. And the rule that
“even if the Government physically invades only an
easement in property, it must nonetheless pay just
compensation,” applies equally to all property owners.
Kaiser Aetna, 444 U.S. at 180. If the State could give
union organizers a free pass-key to petitioners’ property, it could do so for any other state-favored private
parties: election canvassers, charitable solicitors, social workers, promoters of government programs, or
even sales representatives. The Ninth Circuit’s theory has no principled limit.
17
D. Neither PruneYard Shopping Center v.
Robins nor NLRB v. Babcock & Wilcox Co.
supports granting union organizers physical access to petitioners’ private property.
1. PruneYard is not to the contrary. As this Court
explained in Nollan, the mall owner there “had already opened his property to the general public.” 483
U.S. at 832 n.1. Indeed, that was the Court’s explicit
basis for distinguishing PruneYard from cases where
the government, in requiring landowners to open
their properties to third parties, effects the taking of
an easement. Ibid. Similarly, the Court in Dolan declined to extend PruneYard to the imposition of a “permanent recreational easement” that would “eviscerate” the plaintiff’s right to exclude. 512 U.S. at 394.
Here, unlike in PruneYard, petitioners have not
opened up their properties to the public at large. As
Judge Ikuta recognized, that critical difference means
“PruneYard is simply inapplicable.” Pet. App. E-31.
2. Finally, affirmance is not warranted by NLRB
v. Babcock & Wilcox Co., where this Court addressed
whether the National Labor Relations Act required a
manufacturer to provide union organizers with access
to the company’s parking lots (so the organizers could
pass out pro-unionization literature). 351 U.S. at 107
(citing 29 U.S.C. § 158(a)(1)). The Court there in fact
held that the company had the right to exclude the
union, while suggesting in dictum that its answer
might be different “if reasonable efforts by the union
through other available channels of communication”
would not “enable it to reach the employees with its
message.” Id. at 112.
This case does not require examining that fact pattern. Since Babcock was decided, the Court has stated
18
that its dictum there potentially applies “only where
‘the location of a plant and the living quarters of the
employees place the employees beyond the reach of
reasonable union efforts to communicate with them.’”
Lechmere, Inc. v. NLRB, 502 U.S. 527, 539 (1992)
(quoting Babcock, 351 U.S. at 113). Here, petitioners’
employees do not live on petitioners’ property. Nor
are they cut off from modern means of communication.
Indeed, those means of communication likely render
the requirements for applying the dictum in Babcock,
issued some 65 years ago, unattainable. The Court
therefore need not address this scenario, which in all
events is extremely unlikely to arise.
II. A holding that California effected a per se
taking here would not threaten traditional
regulatory regimes that call for governmental inspectors to access private property.
This Court need not be concerned that reversing
the Ninth Circuit would invalidate core governmental
functions such as inspecting property to ensure product or workplace safety. Reasonable government inspections are generally lawful under either the unconstitutional conditions doctrine, which permits the government to condition grants of licenses on grantees’
willingness to allow reasonable inspections, or the
Fourth Amendment, which permits the government
to conduct reasonable searches in furtherance of unearthing potential criminal or dangerous activity. Indeed, in some circumstances both sources of law may
support reasonable government inspections.
Here, however, California is not attempting to inspect petitioners’ property under a licensing regime,
and no one suggests that petitioners have engaged in
(or are suspected of engaging in) unlawful activity, let
19
alone criminal or dangerous behavior. Nor does the
property owner receive any implicit benefit in return.
Accordingly, this case is squarely governed by the
general rule that, if the government grants third parties a right to enter or use others’ private property
over their objections, it must pay for it.
A. Under the doctrine of unconstitutional
conditions, being required to admit government inspectors onto private property
is frequently a reasonable condition of a
government-issued license.
A ruling that California’s Access Regulation violates the Takings Clause would not upend traditional
regulatory regimes that call for the government to
conduct safety inspections on private property. Such
inspections generally satisfy the requirements of the
doctrine of unconstitutional conditions.
1. In general, whether requiring someone to sacrifice a constitutional right in exchange for a public
benefit violates the doctrine of unconstitutional conditions turns on whether the requirement is “germane[]” to the purpose of the benefit received. E.g.,
Dole, 483 U.S. at 208. In the specific context of land
use regulation, this Court asks whether “there is a
‘nexus’ and ‘rough proportionality’ between the government’s demand and the effects of the proposed
land use.” Koontz, 570 U.S. at 599 (citation omitted).
It follows that land use conditions requiring that
landowners “bear the full costs of their proposals” will
generally be upheld as germane to the government’s
approval of the proposed projects. Id. at 606 (quoting
Nollan, 483 U.S. at 837). By contrast, “‘out-and-out
* * * extortion’ that would thwart the Fifth Amendment right to just compensation” is prohibited. Ibid.
20
Naturally, there can be hard cases in between. But
the common sense of this doctrine is that the government may not “forc[e] some people alone to bear public
burdens which, in all fairness and justice, should be
borne by the public as a whole.” Armstrong v. United
States, 364 U.S. 40, 49 (1960).
2. The germaneness requirement of the unconstitutional conditions doctrine is easily satisfied where
the relevant benefit is a government-issued license to
sell products or services. For example, Congress may
insist on reasonable physical access to private manufacturing facilities as a condition of U.S. Food & Drug
Administration (FDA) approval to market pharmaceuticals. See 21 U.S.C. § 374(a)(1) (authorizing FDA
to inspect “any factory, warehouse, or establishment
in which food, drugs, devices, tobacco products, or cosmetics are manufactured, processed, packed, or held,
for introduction into interstate commerce or after
such introduction”). The Food Drug & Cosmetic Act’s
inspection provisions reflect the reality that as “governmental regulation of business enterprise” “mushroom[s],” so too does “the need for effective investigative techniques to achieve the aims of such regulation.”
See v. City of Seattle, 387 U.S. 541, 543 (1967) (citing
21 U.S.C. § 374). If a pharmaceutical manufacturer
objected that FDA inspections effected a taking, that
claim would not fare well under settled law. The purpose of FDA regulation is to facilitate licenses to market safe drugs (the benefit), and government access to
inspect the licensed drugs (the condition) is directly
and reasonably related to that regulatory objective.
The same is true of inspections conducted by the
U.S. Department of Agriculture’s Food Safety Inspection Service (FSIS), which enforces a host of “health
21
and safety constraints on the meat processing industry.” Windy City Meat Co. v. U.S. Dep’t of Agric., 926
F.2d 672, 675 (7th Cir. 1991) (discussing the Federal
Meat Inspection Act, 21 U.S.C. §§ 601–695 (1988), the
Poultry Products Inspection Act, 21 U.S.C. §§ 451–
470 (1988) and the Agricultural Marketing Act of
1946, 7 U.S.C. §§ 1621–1629 (1988)). In adopting the
Federal Meat Inspection Act, for example, Congress
required FSIS to inspect “all meat food products prepared for commerce in any slaughtering, meat-canning, salting, packing, rendering, or similar establishment.” 21 U.S.C. § 606. Unsafe meat poses a public
health risk, and permitting the government to inspect
meat production facilities is a germane condition on
market entry.
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) likewise provides for reasonable inspections to ensure that licensed pesticides pose no
undue risk to people or the environment. FIFRA entitles EPA to enter “any establishment or other place
where pesticides or devices are held for distribution or
sale for the purpose of inspecting and obtaining samples” and the like. 7 U.S.C. § 136g(a)(1)(A). Those inspections are reasonably related to EPA’s need to
“prevent unreasonable adverse effects on the environment” and its agreement to register pesticides for sale
(the benefit). Id. § 136a(a).
Compliance inspections of power plants such as
those conducted by the Nuclear Regulatory Commission (NRC) and Federal Energy Regulatory Commission (FERC) provide other ready examples of lawful
government entry onto private property. The NRC,
for instance, is authorized to conduct “inspections” “to
assure a [nuclear power] licensee’s compliance with
22
the Atomic Energy Act and with Commission regulations necessary for retention of the license” (Mississippi Power & Light Co. v. U.S. Nuclear Regulatory
Comm’n, 601 F.2d 223, 231 (5th Cir. 1979) (citing 42
U.S.C. § 2201(o)))—all to the end of “protecting the
public’s health and safety.” Thermal Sci., Inc. v. U.S.
Nuclear Regulatory Comm’n, 184 F.3d 803, 804 (8th
Cir. 1999) (citing 42 U.S.C. § 2201). For similar reasons, Congress has charged FERC with licensing, and
assessing the safe operation of, liquid natural gas terminals and private hydroelectric projects, making violations punishable by civil and other penalties. 15
U.S.C. §§ 717b, 717m, 717(s-t); see also 16 U.S.C.
§§ 797(e), 823b (similar Federal Power Act provisions).
Although the product for sale in these industries is
electricity, rather than meat, pharmaceuticals, or pesticides, the government’s ability to access the regulated entity’s private property to conduct reasonable
safety or compliance inspections is no less a germane
condition on market participation. Thus, any sacrifice
of the right to exclude third parties from one’s property entailed in allowing such inspections would satisfy the doctrine of unconstitutional conditions. In
sum, there is no basis to the notion that ruling for petitioners would hobble the government’s ability to ensure public safety by requiring access to private property as a reasonable condition of licensing.
3. By contrast, when a condition is essentially unrelated to any benefit conferred on the landowner, the
requirement to grant an easement or other property
interest is a bald exaction requiring compensation.
In Nollan, for example, the California Coastal
Commission conditioned a “coastal development per-
23
mit” on the requirement that the property owners provide “additional lateral access to the public beaches in
the form of an easement across their property.” 483
U.S. at 828–829. That restriction effected a taking
because it was “impossible to understand” how a lateral access easement was related to the burden that
the new development might impose on “visual access”
to the beach. Id. at 838. Likewise, while the city in
Dolan had a legitimate interest in flood control, it was
“difficult to see why” allowing “recreational visitors”
to “trampl[e] along petitioner’s floodplain easement”
was “sufficiently related to the city’s legitimate interest in reducing flooding problems.” 512 U.S. at 393.
And in Koontz, this Court held that the same principles apply “whether the government approves a permit on the condition that the applicant turn over property or denies a permit because the applicant refuses
to do so,” as well as when the government uses “socalled ‘monetary exactions’” that direct “the owner of
a particular piece of property to make a monetary payment.” 570 U.S. at 612–613.
As these cases demonstrate, the unconstitutional
conditions doctrine is designed to separate germane
conditions from “[e]xtortionate demands” (id. at 605)
—and ruling for petitioners here would not alter that
framework.
B. When the government enforces criminal
or regulatory prohibitions, it typically has
Fourth Amendment authority to conduct
reasonable searches of private property.
Nor would a holding that California’s actions here
effect a taking interfere with the government’s ability
to search private property when enforcing ordinary
criminal law or civil regulatory prohibitions.
24
For centuries before the Bill of Rights was enacted,
the common law recognized the authority of magistrates to issue warrants entitling officers of the state
to enter private property and seize papers and effects
(and recognized occasions when, because of various
exigent circumstances, such warrants were unnecessary). When the framers of the Bill of Rights separately enacted the Fourth and Fifth Amendments,
they recognized that legitimate law enforcement
searches were governed by the reasonableness requirements of the former, and not the compensation
requirement of the latter. In modern times, this Court
has interpreted the Fourth Amendment flexibly in the
context of administrative searches, while preserving
the core distinction between reasonable searches and
compensable takings.
1. The Fourth Amendment protects “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” City of Los Angeles v. Patel, 576 U.S. 409,
419 (2015) (quoting U.S. Const. amend. IV). Reasonable searches may be conducted if supported either by
warrants based on probable cause or, in the case of
“brief investigatory stops of persons or vehicles that
fall short of traditional arrest,” by reasonable suspicion. United States v. Arvizu, 534 U.S. 266, 273 (2002).
Although “a search or seizure is ordinarily unreasonable in the absence of individualized suspicion of
wrongdoing,” this Court’s decisions recognize “limited
circumstances in which the usual rule does not apply.”
Edmond, 531 U.S. at 37. Most obviously, this Court
has traditionally allowed the government to conduct
“prompt inspections, even without a warrant,” in
“emergency situations” such as those calling for “seizure of unwholesome food,” “summary destruction of
25
tubercular cattle,” or enforcing a “health quarantine.”
Camara, 387 U.S. at 538 (collecting citations). In addition, however, the government may conduct
“searches for certain administrative purposes without
particularized suspicion of misconduct, provided that
those searches are appropriately limited”—including
searches of business properties in closely regulated industries. Edmond, 531 U.S. at 37 (discussing New
York v. Burger, 482 U.S. 691, 702 (1987)).
Two lines of this Court’s precedent address when
the Fourth Amendment allows the government to
search private commercial property. The first line,
summarized in Burger, outlines the conditions under
which the government may require a “closely regulated” business to submit to a warrantless search. 482
U.S. at 700. As the Court there held, warrantless inspections in such industries must satisfy three criteria: (1) warrantless inspections must serve “a ‘substantial’ government interest,” (2) “the warrantless
inspections must be necessary to further the regulatory scheme,” and (3) “the statute’s inspection program, in terms of the certainty and regularity of its
application, must provide a constitutionally adequate
substitute for a warrant.” Id. at 702–703.
Burger built on precedent addressing “the ‘unique’
problem of inspections of ‘closely regulated’ businesses in two enterprises that had ‘a long tradition of
close government supervision’”: liquor and guns. Id.
at 700 (citation omitted). For instance, the Court in
Colonnade Catering Corp. v. United States, 397 U.S.
72, 77 (1970), disapproved of a warrantless search of
a catering business operating under federal revenue
statutes authorizing inspection of the premises of liquor dealers (in part because the statute imposed sanctions when entry was refused, and in part because it
26
did not authorize entry without a warrant as an alternative in this situation), but recognized that “the liquor industry [was] long subject to close supervision
and inspection.”
Likewise, the Court in United States v. Biswell,
406 U.S. 311 (1972), upheld the warrantless inspection of a pawnshop federally licensed to sell guns under the Gun Control Act of 1968, 18 U.S.C. § 921 et
seq. Noting that the inspection “pose[d] only limited
threats to the dealer’s justifiable expectations of privacy,” the Court stated: “When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge
that his business records, firearms, and ammunition
will be subject to effective inspection.” Id. at 316–317.
The Court further reasoned that, in some closely regulated industries, “the prerequisite of a warrant could
easily frustrate inspection,” making “unannounced,
even frequent, inspections * * * essential” to provide
“a credible deterrent” to violating the law. Id. at 316.
And if the Court rules for petitioners, this line of cases,
dubbed the “Colonnade-Biswell” doctrine in Burger
(482 U.S. at 700), will continue to govern warrantless
inspections of closely regulated industries.12
In a second line of cases, this Court has held that
Colonnade-Biswell addresses “exceptions” arising in
“relatively unique circumstances,” and that warrants
12 The
Colonnade-Biswell doctrine is not strictly limited to liquor or gun sales. For example, in Donovan v.
Dewey this Court upheld “warrantless inspections made
pursuant to the Federal Mine Safety and Health Act,” reasoning that coal mining was a “‘closely regulated’ industry.”
Burger, 482 U.S. at 700 (quoting Donovan, 452 U.S. 594,
598–599 (1981)).
27
(or their equivalent) may be required before the government may inspect entities that are not closely regulated. Marshall v. Barlow’s, Inc., 436 U.S. 307, 313
(1978). Even then, however, where “considerations of
health and safety are involved,” “the facts that would
justify an inference of ‘probable cause’ to make an inspection are clearly different from those that would
justify such an inference where a criminal investigation has been undertaken.” Camara, 387 U.S. at 538.
For example, in Camara, which involved fire code inspections, the Court stated: “Experience may show
the need for periodic inspections of certain facilities
without a further showing of cause to believe that substandard conditions dangerous to the public are being
maintained. The passage of a certain period without
inspection might of itself be sufficient in a given situation to justify the issuance of warrant. The test of
‘probable cause’ required by the Fourth Amendment
can take into account the nature of the search that is
being sought.” Ibid. (citation omitted).
2. As these now-familiar principles confirm, when
the government itself is enforcing criminal provisions
or civil regulatory provisions involving potentially unsafe activities, conditions, products, or services, the
Fourth Amendment permits it to make reasonable
searches (with or without warrants, depending on the
circumstances).
Take the Occupational Safety & Health Act, which
imposes civil and criminal penalties on employers
who fail to maintain a safe workplace. Congress there
authorized the Secretary of Labor to promulgate regulations governing workplace health and safety (29
U.S.C. § 665), and the Secretary has delegated that
authority to OSHA (77 Fed. Reg. 3912, 3912–3913
28
(Jan. 25, 2012)). If OSHA “determines upon investigation that an employer is failing to comply,” it may
“issue a citation” and assess “a monetary penalty.”
Martin v. Occupational Safety & Health Rev. Comm’n,
499 U.S. 144, 147 (1991) (citing 29 U.S.C. §§ 658–659);
see also 29 U.S.C. § 666(e) (imposing criminal penalties on employers who willfully violate OSHA safety
rules and thereby cause an employee’s death). But as
this Court recognized in Marshall v. Barlow’s, Inc.,
one of the leading decisions in this area, “the probable
cause justifying the issuance of a warrant” to conduct
OSHA inspections “may be based not only on specific
evidence of an existing violation but also on a showing
that ‘reasonable legislative or administrative standards for conducting an * * * inspection are satisfied
with respect to a particular [establishment].’” 436 U.S.
307, 320 (1978) (quoting Camara, 387 U.S. at 538).
In a similar vein, the Toxic Substances Control Act
authorizes EPA to “inspect any establishment, facility,
or other premises in which chemical substances, mixtures, or products * * * are manufactured, processed,
stored, or held before or after their distribution in
commerce.” 15 U.S.C. § 2610(a). Applying Marshall,
the lower courts have held that administrative warrants under the statute may be based on “a showing
that reasonable legislative or administrative standards for conducting an inspection are satisfied with
respect to a particular establishment.” E.g., United
States v. M/V SANCTUARY, 540 F.3d 295, 300 (4th
Cir. 2008) (quoting Marshall, 436 U.S. at 320).
FDA’s exercise of authority over food, drugs, and
tobacco products is similar. For example, the Food
Drug & Cosmetic Act contains both civil and criminal
enforcement mechanisms that FDA may invoke in en-
29
forcing the Act’s prohibitions on introducing adulterated food or drugs into interstate commerce. 21 U.S.C.
§ 331 (a)–(c). Similarly, the Family Smoking Prevention and Tobacco Control Act authorizes FDA to bring
“civil and criminal enforcement action[s]” against anyone marketing tobacco products “without the appropriate authorization.” Vapor Tech. Ass’n v. FDA, 977
F.3d 496, 498 (6th Cir. 2020) (citing 21 U.S.C.
§§ 331(a)–(c), 332, 334, 387b(6)). FDA retains inspection authority to enforce all of these provisions. 21
U.S.C. § 374. And lower-court precedent confirms
that the reasonable exercise of that authority will
likely be upheld under the rationale of either Marshall or the “Colonnade-Biswell exception” for “warrantless searches and seizures” in “‘closely regulated’
industries.” United States v. Argent Chem. Labs., Inc.,
93 F.3d 572, 575 (9th Cir. 1996) (upholding FDA
search of a regulated veterinary drug manufacturer).
3. Indeed, this Court’s precedents suggest that
reasonable inspection regimes will sometimes be lawful under both the Fourth Amendment and the unconstitutional conditions doctrine. For example, in Wyman v. James, 400 U.S. 309, 326 (1971), this Court
held that the Fourth Amendment did not prevent New
York from conditioning certain family aid benefits on
the beneficiary’s agreement to allow case-workers to
conduct home visits. The Court began by explaining
that the program served the public interest in “protection and aid for the dependent child.” Id. at 318. Then,
reasoning that home visits served a “valid and proper
administrative purpose” in discovering “information
pertinent to the issue of [program] eligibility,” the
Court held that New York did not violate the Fourth
Amendment in requiring consent to home visits as a
condition of participation. Id. at 322–326.
30
Wyman thus turned on Fourth Amendment analysis, but the case likely would have come out the same
way if the plaintiff there had asserted a takings claim
and the Court had assessed it under the doctrine of
unconstitutional conditions. As explained above (at
19–20), that doctrine would have required New York
to show that requiring the plaintiff to waive her right
to exclude caseworkers from her home was germane
to the purpose of the family aid benefit she was receiving. Further, the Court’s conclusion that the government’s home visits served a “valid and proper administrative purpose” suggests that the “germaneness”
requirement would have been satisfied.
Similarly, the result in Biswell—which upheld “inspections without warrant” of “federally licensed dealers in firearms” against a Fourth Amendment challenge (406 U.S. at 316)—likely would have been the
same under the unconstitutional conditions doctrine.
In exchange for the benefit of a federal license to sell
firearms, the vendor could reasonably be expected to
comply with the germane requirement of submitting
to warrantless searches. Wyman and Biswell thus
suggest that many reasonable governmental inspection regimes will satisfy both the Fourth Amendment
and the doctrine of unconstitutional conditions—and
thus do not raise Takings Clause concerns.
California’s treatment of petitioners, however,
stands in marked contrast to these criminal and regulatory regimes. No one suggests that giving thirdparty union organizers access to petitioners’ property
is necessary to address any potentially illegal activity
—other than activity that, apart from the Access Regulation, would amount to resisting the union’s unlawful trespass—let alone criminal or potentially dangerous activity. On the contrary, California has simply
31
granted other private citizens the right to enter petitioners’ property so they can try to persuade employees to unionize. Unlike the reasonable government
inspections discussed above, the third-party entry at
issue here is not authorized by the Constitution—unless the government is willing to pay for it.
CONCLUSION
For the foregoing reasons, the judgment below
should be reversed.
Respectfully submitted,
MICHAEL W. MCCONNELL
Wilson Sonsini
Goodrich & Rosati, PC
650 Page Mill Rd.
Palo Alto, CA 94304
(650) 493-9300
DARYL JOSEFFER
TARA S. MORRISSEY
U.S. Chamber
Litigation Center
1615 H Street, N.W.
Washington, DC 20062
STEFFEN N. JOHNSON
Counsel of Record
JOHN B. KENNEY
Wilson Sonsini
Goodrich & Rosati, PC
1700 K Street, NW
Washington, DC 20006
(202) 973-8800
sjohnson@wsgr.com
Counsel for Amicus Curiae
JANUARY 2021
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