Amicus Curiae Brief — Glacier Northwest, Inc., dba CalPortland, Petitioner v. International Brotherhood of Teamsters Local Union No. 174

Supreme Court briefDec 8, 2022

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No. 21-1449

IN THE

Supreme Court of the United States

___________

GLACIER NORTHWEST, INC., D/B/A CALPORTLAND,

Petitioner,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

LOCAL UNION NO. 174,

Respondent.

___________

On Writ of Certiorari to the

Supreme Court of Washington

___________

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

J. ALEXANDER ROWELL

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

December 8, 2022

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

INTRODUCTION AND SUMMARY

OF ARGUMENT................................................

ARGUMENT .........................................................

The Text and History of the Takings

Clause Demonstrate That the Clause

Applies Only to the Direct Appropriation

of Property or the Functional Equivalent

Thereof ........................................................

A. The Takings Clause Was

Originally Understood to Apply

Only to the Direct Physical

Appropriation of Property ...............

B. This Court Has Since Held That

the Takings Clause Also Applies to

the Functional Equivalent of a

Physical Appropriation of Property

II. Under This Court’s Precedents, Federal

Strike Protections and Associated

Preemption of State Law Tort Claims Do

Not Effect a Taking ....................................

CONCLUSION .....................................................

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Agins v. City of Tiburon,

447 U.S. 255 (1980) ...................................

Amalgamated Ass’n of St., Elec. Ry.

& Motor Coach Emps. of Am. v.

Lockridge,

403 U.S. 274 (1971) ...................................

American Baptist Homes of the West,

364 N.L.R.B. No. 13 (2016) .......................

Andrus v. Allard,

444 U.S. 51 (1979) .....................................

Armstrong v. United States,

364 U.S. 40 (1960) .....................................

Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021) ...............................

passim

FCC v. Florida Power Corp.,

480 U.S. 245 (1987) ...................................

First Eng. Evangelical Lutheran

Church of Glendale v. Cty. Of Los

Angeles,

482 U.S. 304 (1987) ...................................

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) .........................

19, 20, 21 25

Hudson Cty. Water Co. v. McCarter,

209 U.S. 349 (1908) ...................................

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ...................................

Legal Tender Cases,

79 U.S. (12 Wall.) 457 (1870) .................... 4, 6, 14

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) ................................... 4, 15, 21

Loretto v. Teleprompter Manhattan CATV

Corp.,

458 U.S. 419 (1982) ............................... 18, 21, 22

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) .................................

passim

Maryland Shall Issue, Inc. v. Hogan,

963 F.3d 356 (4th Cir. 2020) .....................

Murr v. Wisconsin,

137 S. Ct. 1933 (2017) ...............................

6, 24

NLRB v. Brown,

380 U.S. 278 (1965) ...................................

NLRB v. Fansteel Metallurgical Corp.,

306 U.S. 240 (1939) ...................................

5, 23

Nollan v. California Coastal Comm’n,

483 U.S. 825 (1987) ............................ 17, 18, 19, 21

Penn Cent. Transp. Co. v. City of

New York,

438 U.S. 104 (1978) ......................... 4, 5, 16, 17, 21

TABLE OF AUTHORITIES – cont’d

Page(s)

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) ............................... 15, 16, 21

Pumpelly v. Green Bay & Miss.

Canal Co.,

80 U.S. 166 (1871) .....................................

14, 15

Respublica v. Sparhawk,

1 U.S. (1 Dall.) 357 (Pa. 1788) ..................

Rockford Redi-Mix Inc. v. Teamsters

Local 325,

551 N.E.2d 1333 (Ill. App. Ct. 1990) ........

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency,

535 U.S. 302 (2002) ............................... 14, 16, 25

Transportation Co. v. Chicago,

99 U.S. 635 (1879) .................................... 4, 6, 14

Yee v. City of Escondido,

503 U.S. 519 (1992) ...................................

Constitutional Provisions and Legislative Materials

U.S. Const. amend. V ...................................

6, 19

Other Authorities

1 William Blackstone, Commentaries with

Notes of Reference to the Constitution

and Laws, of the Federal Government of

the United States; and of the

Commonwealth of Virginia (St. George

Tucker ed., 1803) .......................................

8, 13

TABLE OF AUTHORITIES – cont’d

Page(s)

Fundamental Constitutions of Carolina

art. 44 (1669), reprinted in 1 Bernard

Schwartz, The Bill of Rights: A

Documentary History (1971) .....................

John F. Hart, Land Use Law in the Early

Republic and the Original Meaning of

the Takings Clause, 94 Nw. U.L. Rev.

1099 (2000) ................................................

1-2 Samuel Johnson, A Dictionary of the

English Language (1755-56) .....................

12, 13

Douglas T. Kendall & Charles P. Lord,

The Takings Project: A Critical Analysis

and Assessment of the Progress So Far,

25 B.C. Envt’l Aff. L. Rev. 509 (1998).......

James Madison, Note to His Speech on the

Right to Suffrage (1821), in 3 The

Records of the Federal Convention of

1787 (Max Farrand ed., 1911)...................

11, 12

James Madison, Observations on the

“Draught of a Constitution for Virginia”

(ca. Oct. 15, 1788), in 11 The Papers of

James Madison (Robert A. Rutland et al.

eds., 1977) ..................................................

James Madison, Speech Proposing Bill of

Rights (June 8, 1789), in 12 J. Madison,

The Papers of James Madison (C.

Hobson et al. eds., 1979) ...........................

TABLE OF AUTHORITIES – cont’d

Page(s)

Magna Carta art. 28 (1215), reprinted in

Sources of Our Liberties: Documentary

Origins of Individual Liberties in the

United States Constitution and Bill of

Rights (Richard L. Perry & John C.

Cooper eds., 1959) .....................................

Mass. Body of Liberties § 8 (1641),

reprinted in Sources of Our Liberties:

Documentary Origins of Individual

Liberties in the United States

Constitution and Bill of Rights (Richard

L. Perry & John C. Cooper eds., 1959) .....

Mass. Const. of 1780, part I, art. X,

reprinted in 3 The Federal and State

Constitutions, Colonial Charters, and

Other Organic Laws of the States,

Territories, and Colonies Now or

Heretofore Forming the United States of

America (Francis N. Thorpe ed., 1909) .....

Northwest Ordinance of 1787, art. 2,

reprinted in Sources of Our Liberties:

Documentary Origins of Individual

Liberties in the United States

Constitution and Bill of Rights (Richard

L. Perry & John C. Cooper eds., 1959) .....

Joseph L. Sax, Takings and the Police

Power, 74 Yale L.J. 36 (1964) ...................

Bernard Schwartz, Takings Clause—“Poor

Relation” No More?, 47 Okla. L. Rev. 417

(1994) .........................................................

11, 12

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Theodore Sedgwick, A Treatise on the

Rules Which Govern the Interpretation

and Application of Statutory and

Constitutional Law (1857) ........................

William Michael Treanor, The Original

Understanding of the Takings Clause

and the Political Process, 95 Colum. L.

Rev. 782 (1995) ..........................................

passim

Vt. Const. of 1777, ch. I, art. II, reprinted

in 6 The Federal and State Constitutions,

Colonial Charters, and Other Organic

Laws of the States, Territories, and

Colonies Now or Heretofore Forming the

United States of America (Francis N.

Thorpe ed., 1909) .......................................

INTEREST OF AMICUS CURIAE1

Amicus Constitutional Accountability Center

(CAC) is a think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text and history. CAC works in our courts,

through our government, and with legal scholars to

improve understanding of the Constitution and to preserve the rights and freedoms it guarantees. CAC has

an interest in ensuring that the Takings Clause of the

Fifth Amendment is interpreted in a manner consistent with its text and history and therefore has an

interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The National Labor Relations Act (“NLRA”) protects employees’ right to strike—that is, to withhold

their labor and thereby cause economic harm to their

employer—for mutual aid or protection. On August

11, 2017, eleven days after their collective bargaining

agreement expired, members of Respondent Local Union No. 174 (“Union”) employed by Petitioner Glacier

Northwest, which sells and delivers ready-mix concrete, exercised that right. J.A. 112. When the strike

commenced that morning, a Glacier representative

was informed that its drivers “were all bringing their

trucks back to [its] yard—many with full loads of concrete in the drums.” Id. at 81. All striking drivers returned the company trucks and concrete to Glacier

1 The parties have consented to the filing of this brief.

Under

Rule 37.6 of the Rules of this Court, amicus states that no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amicus or its counsel made a monetary contribution to its preparation or submission.

premises. Id. at 12-13. A Union representative informed drivers to leave their trucks running, id. at 34,

which kept the loaded trucks’ drums revolving and

helped to prevent the concrete from quickly hardening.

Glacier then offloaded the concrete from these trucks

without damaging its trucks, plant, or equipment. Id.

at 13. The concrete hardened in the yard and bunkers

where it was offloaded by Glacier and subsequently

disposed of. Id.

Notwithstanding the Union’s efforts to minimize

damage to Glacier’s trucks and other property, Glacier

brought state-law tort claims against the Union,

claiming that the strike constituted “sabotage, ruination, and destruction of Glacier’s batched concrete.”

Id. at 19. Although Glacier claims that it seeks damages “for the initiation of destruction of property by the

Union,” not “for strike activity,” id. at 49, the core of

Glacier’s complaint is that the Union “immediately

and suddenly ceas[ed] all concrete delivery activity

work, and abandon[ed] or discharg[ed] at the Glacier

facilities the batched concrete under their control”—in

other words, that Union members returned employer

property to employer premises and went on strike. Id.

at 12-13.

The Washington Supreme Court concluded that

Glacier’s suit should be dismissed, holding that Glacier’s claims seeking damages connected to the employees’ strike were preempted by the NLRA under Garmon preemption, under which state courts generally

may not hear claims based on conduct that is protected

or arguably protected by Section 7 of the NLRA (or prohibited or arguably prohibited by Section 8 of the Act).

Id. at 150-70; see Resp. Br. 15-37 (explaining why Glacier’s claims are preempted by the NLRA). Petitioner

now claims, among other things, that the principle of

constitutional avoidance requires reversal of the decision below because federal preemption of Glacier’s

claim for strike-related damages would “raise serious

constitutional doubts under the Takings Clause.”

Pet’r Br. 47-48. As the Union explains, the National

Labor Relations Board (“NLRB”) has yet to rule on

whether the Union’s conduct is protected, which

means that no taking could have occurred at this time.

Resp. Br. 11-12, 48. But even if the NLRB were ultimately to conclude that the conduct here is protected,

Petitioner’s claim would still be without merit: allowing federal labor law protections to preempt Petitioner’s state law claims is consistent with the Takings

Clause’s text and history.

As originally understood, the Takings Clause applied only to the direct physical appropriation of private property. This reading of the Takings Clause is

consistent with that of similar provisions in colonial

and state constitutions, and it is well established that

the Framers, including James Madison, who drafted

the Clause, understood that it too would be so limited.

Indeed, for decades after the Clause’s adoption, this

Court interpreted it as applying only to direct physical

appropriations. As Justice Scalia recognized, “early

constitutional theorists did not believe the Takings

Clause embraced regulations of property at all.” Lucas

v. South Carolina Coastal Council, 505 U.S. 1003,

1028 n.15 (1992).

Toward the end of the nineteenth century, however, this Court began to hold that the Takings Clause

may also apply in cases involving the functional equivalent of a direct physical appropriation of property.

Yet even in these cases, the Court was careful to cabin

the Clause’s application to regulations that could reasonably be considered tantamount to the sorts of direct

appropriations that were within the scope of the

Clause’s original meaning. Thus, for most of the nation’s history, “it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of

property, or the functional equivalent of a ‘practical

ouster of [the owner’s] possession.’” Lucas, 505 U.S. at

1014 (quoting Legal Tender Cases, 79 U.S. (12 Wall.)

457, 551 (1870), and Transportation Co. v. Chicago, 99

U.S. 635, 642 (1879)).

This Court has recognized two categories of regulations that fit within those parameters and are thus

considered takings per se: (1) “regulations that compel

the property owner to suffer a physical ‘invasion’ of his

property,” id. at 1015, and (2) regulations that “den[y]

all economically beneficial or productive use of land,”

id. (emphasis added); see id. at 1017 (suggesting that

the justification for the latter rule might be “that total

deprivation of beneficial use is, from the landowner’s

point of view, the equivalent of a physical appropriation” (emphasis added)). These categories “share a

common touchstone,” as “[e]ach aims to identify regulatory actions that are functionally equivalent to the

classic taking in which government directly appropriates private property or ousts the owner from his domain.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528,

539 (2005).

Regulations that do not fall within these two categories of takings per se are generally evaluated under

a multifactor test established in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978).

See Lingle, 544 U.S. at 538-39. Under that test, a court

considers, among other things, “[t]he economic impact

of the regulation on the claimant and, particularly, the

extent to which the regulation has interfered with distinct investment-backed expectations,” as well as the

“character of the governmental action.” Penn Central,

438 U.S. at 124. This analysis looks to a regulation’s

impact on the entirety of one’s property—courts do not

“divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated,” but instead focus

“both on the character of the action and on the nature

and extent of the interference with rights in the parcel

as a whole.” Id. at 130-31.

Under the original understanding of the Takings

Clause, there is simply no merit to Petitioner’s argument that preemption of its state law tort claims for

incidental property damage that occurred as a result

of a strike protected by the NLRA is a taking, and it is

plainly not a taking under this Court’s precedents either. It does not effect an actual physical appropriation of employers’ property, nor does it effect the functional equivalent thereof. Significantly, when striking

employees take over a plant or smash company equipment—actually physically appropriating property—

their actions are not protected by the Act and Garmon

preemption does not apply. In those instances, employers are free to bring state law claims based on

“acts of trespass or violence against the employer’s

property,” as this conduct is not federally protected.

See NLRB v. Fansteel Metallurgical Corp., 306 U.S.

240, 255 (1939). But the Takings Clause does not prohibit federal protections for strikes and associated

preemption of state law claims over damages that result from employees withholding their labor. This

Court should affirm the judgment of the court below.

ARGUMENT

I. The Text and History of the Takings Clause

Demonstrate That the Clause Applies Only to

the Direct Appropriation of Property or the

Functional Equivalent Thereof.

As this Court has recognized, for most of the nation’s history, it has been understood “that the Takings

Clause reache[s] only a ‘direct appropriation’ of property, or the functional equivalent of a ‘practical ouster

of [the owner’s] possession.’” Lucas, 505 U.S. at 1014

(quoting Legal Tender Cases, 79 U.S. (12 Wall.) at 551,

and Transportation Co., 99 U.S. at 642); accord Murr

v. Wisconsin, 137 S. Ct. 1933, 1957 (2017) (Thomas, J.,

dissenting). But here, Glacier claims that the Takings

Clause’s scope is much broader—so broad that the

NLRA cannot preempt state law tort claims arising

out of incidental harm to perishable products that results when workers exercise their right to strike under

the NLRA. This view of the Takings Clause cannot be

squared with either its text or history. Any extension

of the Takings Clause to render unions liable to state

law claims for damages resulting from strike-related

incidental property damage would not be “grounded in

the original public meaning of the Takings Clause of

the Fifth Amendment,” Murr, 137 S. Ct. at 1957

(Thomas, J., dissenting), and must be rejected.

A. The Takings Clause Was Originally Understood to Apply Only to the Direct Physical

Appropriation of Property.

The Takings Clause of the Fifth Amendment states

that “private property [shall not] be taken for public

use, without just compensation.” U.S. Const. amend.

V. By its terms, the Clause’s scope is quite narrow: it

applies only when the government takes private property, and it does not prevent such takings but rather

requires the government to provide just compensation

when those takings occur. See First Eng. Evangelical

Lutheran Church of Glendale v. Cty. of Los Angeles,

482 U.S. 304, 314 (1987). While the Constitution does

not define the term, a “taking” most naturally means

an appropriation of property, such as when the government exercises its eminent domain power to physically

acquire private property to build a road, military base,

or park. See Douglas T. Kendall & Charles P. Lord,

The Takings Project: A Critical Analysis and Assessment of the Progress So Far, 25 B.C. Envt’l Aff. L. Rev.

509, 515 (1998).

This plain-language interpretation of the Clause is

consistent with the Framers’ understanding that the

Takings Clause would prohibit only actual appropriations of private property.

See William Michael

Treanor, The Original Understanding of the Takings

Clause and the Political Process, 95 Colum. L. Rev.

782, 782 (1995) (“[T]he Takings Clause and its state

counterparts originally protected property against

physical seizures, but not against regulations affecting

value.”). Indeed, “the limited scope of the [T]akings

[C]lause[] reflected the fact that, for a variety of reasons, members of the framing generation believed that

physical possession of property was particularly vulnerable to process failure,” necessitating a compensation requirement specifically for the direct appropriation of private property. Id.

Historical circumstances preceding the adoption of

the Takings Clause support this understanding of the

Clause’s original meaning. Prior to the ratification of

the Fifth Amendment, “there was no [federal] rule requiring compensation when the government physically took property or regulated it. The decision

whether or not to provide compensation was left entirely to the political process.” Id. at 783; see id.

(“[T]he framers did not favor absolute protection of

property rights.”). Thus, during the Revolutionary

War, the military regularly seized private goods without providing compensation. See 1 William Blackstone, Commentaries with Notes of Reference to the

Constitution and Laws, of the Federal Government of

the United States; and of the Commonwealth of Virginia 305-06 (St. George Tucker ed., 1803) (statement

by Tucker); Respublica v. Sparhawk, 1 U.S. (1 Dall.)

357, 363 (Pa. 1788) (upholding uncompensated seizure

of provisions from private citizens during the war).

Indeed, only two foundational documents from the

colonial era included even limited recognition of a

right to compensation for the taking of private property, and both covered only physical appropriations of

property. Treanor, supra, at 785. First, the Massachusetts Body of Liberties, adopted in 1641, imposed a

compensation requirement that applied only to the seizure of personal property: “No mans Cattel or goods of

what kinde soever shall be pressed or taken for any

publique use or service, unlesse it be by warrant

grounded upon some act of the generall Court, nor

without such reasonable prices and hire as the ordinarie rates of the Countrie do afford.” Mass. Body of

Liberties § 8 (1641), reprinted in Sources of Our Liberties: Documentary Origins of Individual Liberties in

the United States Constitution and Bill of Rights 149

(Richard L. Perry & John C. Cooper eds., 1959) [hereinafter Sources of Our Liberties]; see Treanor, supra,

at 785 n.12 (“This provision of the Body of Liberties

appears to have been modelled on Article 28 of Magna

Carta, which barred crown officials from ‘tak[ing]

anyone’s grain or other chattels, without immediately

paying for them in money.’” (quoting Magna Carta art.

28 (1215), reprinted in Sources of Our Liberties 16)).

Likewise, the 1669 Fundamental Constitutions of

Carolina, which were drafted by John Locke and never

fully implemented, would have mandated compensation for the direct seizure of real property. Treanor,

supra, at 785-86. These documents sought to authorize public construction of buildings and highways, so

long as “[t]he damage the owner of such lands (on or

through which any such public things shall be made)

shall receive thereby shall be valued, and satisfaction

made by such ways as the grand council shall appoint.”

Id. at 786 (quoting Fundamental Constitutions of Carolina art. 44 (1669), reprinted in 1 Bernard Schwartz,

The Bill of Rights: A Documentary History 115 (1971)).

Although colonial governments commonly regulated land use and business operations, see id. at 789

(collecting examples including requiring inspection of

goods prior to sale or export, imposing fee schedules,

and barring commodity speculation), no colonial charter required compensation for property owners affected by those regulations—even when the regulations affected a property’s value, id. at 788-89; see also

John F. Hart, Land Use Law in the Early Republic and

the Original Meaning of the Takings Clause, 94 Nw.

U.L. Rev. 1099, 1100 (2000) (“American legislatures

extensively regulated land use between the time

America won its independence and the adoption of the

property-protecting measures of the Constitution and

the Bill of Rights.”). Indeed, as Justice Scalia recognized, “early constitutional theorists did not believe

the Takings Clause embraced regulations of property

at all.” Lucas, 505 U.S. at 1028 n.15. After the American Revolution, most state constitutions echoed their

colonial predecessors in this respect, as “[n]one of the

state constitutions adopted in 1776 had just compen-

sation requirements” for physical takings or for regulations that affected property rights. Treanor, supra,

at 789.

As state constitutions later began to provide compensation for the taking of property, those protections

applied only to physical appropriations of property.

See id. at 791. The Vermont constitution, for example,

provided that “whenever any particular man’s property is taken for the use of the public, the owner ought

to receive an equivalent in money.” Vt. Const. of 1777,

ch. I, art. II, reprinted in 6 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws

of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 3740 (Francis N. Thorpe ed., 1909) (hereinafter The Federal and

State Constitutions). Similarly, the Massachusetts

Constitution of 1780 stated that “whenever the public

exigencies require that the property of any individual

should be appropriated to public uses, he shall receive

a reasonable compensation therefor.” Mass. Const. of

1780, part I, art. X, reprinted in 3 The Federal and

State Constitutions, supra, at 1891. Further, the

Northwest Ordinance of 1787 stated that “should the

public exigencies make it necessary, for the common

preservation, to take any person’s property, or to demand his particular services, full compensation shall

be made for the same.” Northwest Ordinance of 1787,

art. 2, reprinted in Sources of Our Liberties, supra, at

395. Significantly, “[i]n each case, a plain language

reading of the text indicates that it protected property

only against physical confiscation, and the early judicial decisions construed them in this way.” Treanor,

supra, at 791. Most state courts accordingly held that

damages “from activities that did not involve physical

invasions or appropriations of property for a public

use, but that nonetheless had physical consequences,

such as subsidence occasioned by a road-building project—were not compensable takings.” Id. at 792.

Ultimately, when the Framers adopted the federal

Takings Clause, “the right against physical seizure received special protection . . . because of the framers’

concern with failures in the political process.” Id. at

784. For various reasons, the Framers feared that the

ordinary political process would not adequately protect

physical possession of property. Id. at 827; see, e.g., id.

at 829-30 (explaining how Vermont’s Takings Clause

and other state analogues were “designed to provide

security against the type of process failure to which

majoritarian decisionmaking processes were peculiarly prone”—namely “real property interests”).

The statements of James Madison, who drafted the

Takings Clause, “uniformly indicate that the clause

only mandated compensation when the government

physically took property.” Treanor, supra, at 791; see

Lucas, 505 U.S. at 1057 n.23 (Blackmun, J., dissenting) (“James Madison, author of the Takings Clause,

apparently intended it to apply only to direct, physical

takings of property by the Federal Government.”); accord Bernard Schwartz, Takings Clause—“Poor Relation” No More?, 47 Okla. L. Rev. 417, 420 (1994). Madison believed that physical property needed special

protection in the form of a compensation requirement

“because its owners were peculiarly vulnerable to majoritarian decisionmaking.” Treanor, supra, at 847.

Madison wrote, for instance, of the need for a means to

protect physical property ownership separate from the

political process because, “[a]s the holders of property

have at stake all the other rights common to those

without property, they may be the more restrained

from infringing, as well as the less tempted to infringe

the rights of the latter.” James Madison, Note to His

Speech on the Right to Suffrage (1821), in 3 The Records of the Federal Convention of 1787, at 450-51 (Max

Farrand ed., 1911). He described “[t]he necessity of

. . . guarding the rights of property,” a matter that he

observed “was for obvious reasons unattended to in the

commencement of the Revolution.” James Madison,

Observations on the “Draught of a Constitution for Virginia” (ca. Oct. 15, 1788), in 11 The Papers of James

Madison 287 (Robert A. Rutland et al. eds., 1977).

Thus, Madison was concerned that the political process would be insufficient to preserve physical property rights, and he drafted the Takings Clause to protect against political-process failures. See Treanor, supra, at 854.

The drafting history of the Takings Clause is also

consistent with its limited scope. As originally drafted,

the Clause read, “No person shall be . . . obliged to relinquish his property, where it may be necessary for

public use, without a just compensation.” Lucas, 505

U.S. at 1028 n.15 (quoting Speech Proposing Bill of

Rights (June 8, 1789), in 12 J. Madison, The Papers of

James Madison 201 (C. Hobson et al. eds., 1979)). Although no legislative history exists that explains why a

select committee, of which Madison was a member, altered the wording before the Amendment’s adoption,

“[i]t is . . . most unlikely that the change in language

was intended to change the meaning of Madison’s

draft Takings Clause.” Schwartz, supra, at 420.

As one scholar has argued, “[t]he substitution of

‘taken’ for Madison’s original ‘relinquish’ did not mean

that something less than acquisition of property would

bring the clause into play,” id., because Samuel Johnson’s Dictionary—a prominent Founding-era dictionary—defined “to take” in 1789 as, among other things,

“[t]o seize what is not given”; “[t]o snatch; to seize”;

“[t]o get; to have; to appropriate”; [t]o get; to procure”;

and “[t]o fasten on; to seize,” id. at 420-21 (quoting 1-2

Samuel Johnson, A Dictionary of the English Language (1755-56)). Moreover, because no one besides

Madison advocated for the inclusion of a Takings

Clause in the Bill of Rights, and there is no record of

anyone advocating to expand the scope of Madison’s

original draft, there is no reason to think the final

draft was meant to be more robust than the original.

See Treanor, supra, at 834 (“Aside from Madison, there

was remarkably little desire for any kind of substantive protection of property rights against the national

government.” (footnote omitted)).

Accounts from shortly after the adoption of the

Clause confirm that it was understood to apply only to

physical appropriations. “[A]lthough ‘contemporaneous commentary upon the meaning of the compensation clause is in very short supply,’” Lucas, 505 U.S. at

1057 n.23 (Blackmun, J., dissenting) (quoting Joseph

L. Sax, Takings and the Police Power, 74 Yale L.J. 36,

58 (1964)), an 1803 treatise recognized that the Clause

“was probably intended to restrain the arbitrary and

oppressive mode of obtaining supplies for the army,

and other public uses, by impressment, as was too frequently practiced during the revolutionary war,” 1

William Blackstone, Commentaries, supra, at 305-06.

Another treatise writer observed in 1857 that “[i]t

seems to be settled that, to entitle the owner to protection under [the Takings] [C]lause, the property must

be actually taken in the physical sense of the word.”

Theodore Sedgwick, A Treatise on the Rules Which

Govern the Interpretation and Application of Statutory

and Constitutional Law 519 (1857).

Moreover, the few Supreme Court decisions prior to

1870 interpreting the Takings Clause held that “acts

done in the proper exercise of governmental powers,

and not directly encroaching upon private property,

though their consequences may impair its use, are universally held not to be a taking within the meaning of

the constitutional provision.” Transportation Co., 99

U.S. at 642 (emphasis added). In fact, until the last

few decades of the nineteenth century, this Court

steadfastly refused to extend the Clause beyond actual

appropriations. In 1870, this Court affirmed that the

Takings Clause “has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful

power.” Legal Tender Cases, 79 U.S. (12 Wall.) at 551;

see also Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321

(2002) (“The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings. Its plain language

requires the payment of compensation whenever the

government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation. But the

Constitution contains no comparable reference to regulations . . . .”).

B. This Court Has Since Held That the Takings Clause Also Applies to the Functional

Equivalent of a Physical Appropriation of

Property.

The notion that the Takings Clause may apply to

government actions beyond the traditional physical

appropriation of property emerged gradually over the

next century as this Court considered cases in which

government action very closely resembled the appropriation of property. The first of these cases, Pumpelly

v. Green Bay & Mississippi Canal Co., involved a stateauthorized dam that completely flooded the petitioner’s property. 80 U.S. 166 (1871). This Court, analyzing the similar Takings Clause in the Wisconsin

constitution, noted that “[i]t would be a very curious

and unsatisfactory result” if the government “can, in

effect, subject [real property] to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public

use.” Id. at 177-78. To avoid such a result, the Court

held that, “where real estate is actually invaded by superinduced additions of water, earth, sand, or other

material, . . . so as to effectually destroy or impair its

usefulness, it is a taking, within the meaning of the

Constitution.” Id. at 181 (emphases added). The

Court made clear, however, that “[b]eyond this we do

not go, and this case calls us to go no further.” Id.

Nearly fifty years later, in Pennsylvania Coal Co.

v. Mahon, 260 U.S. 393 (1922), the Court again narrowly expanded the reach of the Takings Clause. This

time the Clause was expanded to encompass regulations that the Court viewed as particularly oppressive.

Yet this Court was once again careful to limit its newly

recognized regulatory takings doctrine to instances in

which the effect of a regulation is tantamount to the

direct appropriation of property contemplated in the

text of the Fifth Amendment. See Lingle, 544 U.S. at

539 (noting that to bring a successful regulatory takings claim, a plaintiff must “identify regulatory actions

that are functionally equivalent to the classic taking

in which government directly appropriates private

property or ousts the owner from his domain”).

Mahon involved a challenge to the Kohler Act, a

Pennsylvania law that prevented coal companies from

mining coal that formed the support for surface-level

land. 260 U.S. at 416-17. Pennsylvania law recognized this support property as a distinct property interest, and this Court stated that the Act “purports to

abolish what is recognized in Pennsylvania as an estate in land—a very valuable estate.” Id. at 414. The

Court declared that the Pennsylvania law had “very

nearly the same effect for constitutional purposes as

appropriating or destroying [the estate],” id., and,

again relying on this analogy to an appropriation of

property, declared that a regulation can be considered

a taking when it “goes too far,” id. at 415; see Lucas,

505 U.S. at 1014 (reiterating the “oft-cited maxim”

from Mahon that, “while property may be regulated to

a certain extent, if regulation goes too far it will be recognized as a taking” (quoting Mahon, 260 U.S. at 415));

accord Tahoe-Sierra Preservation Council, 535 U.S. at

325 n.21.

This Court concluded in Mahon that “[b]ecause the

statute made it commercially impracticable to mine

the coal, and thus had nearly the same effect as the

complete destruction of rights claimant had reserved

from the owners of the surface land, . . . the statute

was invalid as effecting a ‘taking’ without just compensation.” Penn Central, 438 U.S. at 127-28 (emphasis

added) (describing the holding in Mahon); cf. Armstrong v. United States, 364 U.S. 40, 48 (1960) (holding

that although “not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense,” the government’s “total destruction” of the full value of certain liens by taking possession of the underlying property constituted

a “taking” (emphasis added)); Hudson Cty. Water Co.

v. McCarter, 209 U.S. 349, 355 (1908) (explaining that

the government can limit the heights of buildings in a

city without compensation, unless the limit goes “so far

as to make an ordinary building lot wholly useless”

(emphasis added)).

This Court summarized the status of its regulatory

takings jurisprudence to date in Penn Central Transportation Co. v. City of New York, 438 U.S. at 123. It

acknowledged that the question of when a regulation

is sufficiently akin to an appropriation to require compensation under the Takings Clause “has proved to be

a problem of considerable difficulty,” id., and “this

Court, quite simply, has 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, rather than

remain disproportionately concentrated on a few persons,” id. at 124. The Court explained that it relies

primarily on a balancing of three factors: (1) the economic impact of the regulation, (2) the extent the regulation interferes with “distinct investment-backed expectations,” and (3) “the character of the governmental

action.” Id. Under Penn Central’s balancing test, no

one factor alone is determinative. See id. at 124-25.

Significant diminutions in property value are generally permissible without compensation, and takings

are less readily found “when interference arises from

some public program adjusting the benefits and burdens of economic life to promote the common good.”

See id. at 124-25.

This Court has sought to clarify its regulatory takings doctrine in recent years, and it has continued to

recognize that there are limits on applying the Takings

Clause beyond direct physical appropriations of property. In Nollan v. California Coastal Commission, 483

U.S. 825 (1987), this Court emphasized the “right to

exclude” and held that an unconstitutional per se taking occurs “where individuals are given a permanent

and continuous right to pass to and fro, so that the real

property may continuously be traversed, even though

no particular individual is permitted to station himself

permanently upon the premises.” Id. at 832. In Nollan, California had conditioned a couple’s purchase of

a beachfront lot and the grant of a coastal development

permit on the couple providing a “classic right-of-way

easement,” id. at 832 n.1, across their property so that

members of the public could access the beach at all

times, see id. at 827-29. The Court determined that

requiring such an easement without compensation violated the Takings Clause.

The Court based its holding in Nollan in part on its

previous determination in Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419 (1982), that

“where governmental action results in ‘[a] permanent

physical occupation’ of the property,” Nollan, 483 U.S.

at 831 (quoting Loretto, 458 U.S. at 432-33 n.9), that

action effects an unconstitutional taking per se, regardless of “whether the action achieves an important

public benefit or has only minimal economic impact on

the owner,” id. at 831-32 (quoting Loretto, 458 U.S. at

434-35); accord Kaiser Aetna v. United States, 444 U.S.

164, 176 (1979). The Loretto Court had made clear,

however, that “deprivation of the right to use and obtain a profit from property is not, in every case, independently sufficient to establish a taking,” 458 U.S. at

436, and it noted the case law’s consistent distinction

between “permanent physical occupation” and “government action outside the owner’s property that

causes consequential damages within,” id. at 428.

In Lucas v. South Carolina Coastal Council, the

Court explained that it has recognized two categories

of regulations that are takings per se, regardless of the

public interest furthered by the governmental action:

(1) “regulations that compel the property owner to suffer a physical ‘invasion’ of his property,” Lucas, 505

U.S. at 1015—“at least with regard to permanent invasions,” such as those requiring landlords to allow the

permanent placement of cable facilities in their apartment buildings, id. (citing Loretto, 458 U.S. at 419),

and (2) regulations that “den[y] all economically beneficial or productive use of land,” id. (emphasis added)

(citing Agins v. City of Tiburon, 447 U.S. 255, 260

(1980), and Nollan, 483 U.S. at 834); see id. at 1017

(suggesting that the justification for the latter rule

might be “that total deprivation of beneficial use is,

from the landowner’s point of view, the equivalent of a

physical appropriation” (emphasis added)). The Court

thus emphasized that “when the owner of real property has been called upon to sacrifice all economically

beneficial uses in the name of the common good, that

is, to leave his property economically idle, he has suffered a taking.” Id. at 1019. For these “total regulatory takings,” the Court distinguished real property

from personal property, explaining that “in the case of

personal property, by reason of the State’s traditionally high degree of control over commercial dealings,

he ought to be aware of the possibility that new regulation might even render his property economically

worthless.” Id. at 1026-28. The Court ultimately held

that a South Carolina law that prevented the petitioner from erecting any permanent habitable structures on his land, rendering the parcels “valueless,” id.

at 1007 (internal quotation marks and citation omitted), “accomplished a taking of private property under

the Fifth and Fourteenth Amendments requiring the

payment of ‘just compensation,’” id. (quoting U.S.

Const. amend. V).

The constitutional prohibition on direct physical

appropriation of property without just compensation

via regulations also applies to personal property. In

Horne v. Department of Agriculture, this Court heard

a challenge to a marketing order that required “a percentage of a grower’s crop [to] be physically set aside in

certain years for the account of the Government, free

of charge.” 576 U.S. 350, 354 (2015) (emphasis added).

Under the scheme, a government entity “acquires title

to the reserve raisins” and subsequently “sells, allocates, or otherwise disposes” of them as it determines

is appropriate to protect the market. Id. at 354-55.

While noting that Lucas suggested that “different

treatment of real and personal property” was appropriate for regulatory takings, the Court explained that

“direct appropriations of real and personal property”

should be treated alike because individuals “do not expect their property, real or personal, to be actually occupied or taken away.” Id. at 361. Thus, because the

scheme was a “clear physical taking,” with “[a]ctual

raisins . . . transferred from the growers to the Government,” it was a per se physical taking requiring just

compensation. Id. at 361-62.

This was the case even though the petitioners conceded that “the government may prohibit the sale of

raisins without effecting a per se taking.” Id. at 362.

The Court explained that even though a physical taking and a regulatory limit “may have the same economic impact . . . . [t]he Constitution, however, is concerned with means as well as ends.” Id.

And most recently, this Court held in Cedar Point

Nursery v. Hassid that actual physical appropriations

of property directly authorized by government regulations need not be permanent or continuous to constitute “per se physical taking[s].” 141 S. Ct. 2063, 207475 (2021). The majority explained that to distinguish

between per se physical takings and regulatory takings where Penn Central’s balancing test applies,

“[t]he essential question is . . . . whether the government has physically taken property for itself or someone else—by whatever means—or has instead restricted a property owner’s ability to use his own property.” Id. at 2072.

In Cedar Point, California granted labor unions a

“right to take access” to agricultural employers’ property, permitting them to send organizers into the employers’ property for up to 120 days per year. Id. at

2069. This Court held that the regulation “appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking.” Id. at 2072.

It situated the access regulation in Court precedent involving “government-authorized invasions of property,” explaining that this precedent does not require

physical invasions to be permanent or continuous. Id.

at 2074-75.

Thus, this Court has primarily applied the Takings

Clause to prevent uncompensated physical appropriations of property, and while it has held that some regulations amount to takings per se, it has been careful

to limit that classification to regulations that are tantamount to direct appropriations because they either

effect a physical appropriation or invasion of property

(as in Nollan, Loretto, Horne, and Cedar Point) or render real property entirely valueless (as in Mahon and

Lucas). Where a challenged regulation does not fit into

either of these categories of takings per se, this Court

generally applies the multifactor test articulated in

Penn Central. See Lingle, 544 U.S. at 538-39.

II. Under This Court’s Precedents, Federal

Strike Protections and Associated Preemption of State Law Tort Claims Do Not Effect a

Taking.

Because the Fifth Amendment, as originally understood, applied only to physical takings of property, this

Court should continue to carefully limit constitutional

liability for regulatory takings. Under the original

meaning of the Takings Clause and this Court’s precedents, regulations may be considered takings per se

only when they permit a physical appropriation of

property or deprive real property of all economic value.

The preemption of state law tort claims arising out of

conduct that is protected under the NLRA, even when

that conduct results in incidental economic harm to

the employer because the employer cannot sell perishable products as originally intended, does neither. The

regulation thus does not effect a taking per se.

Petitioner argues to the contrary because, in its

view, this Court’s decision in Cedar Point indicates

that “the Court’s previous labor law decisions may

have failed to afford adequate respect for employers’

property rights.” Pet’r Br. 47. And it argues that the

protections at issue here raise “even clearer” takings

concerns than California’s regulation allowing off-site

union organizers to take access to employer property.

Pet’r Br. 48; see also Buckeye Institute Amicus Br. 1718 (arguing a per se taking occurred). This is wrong.

While this Court concluded that the regulation at issue

in Cedar Point was a per se taking because it stripped

away employers’ right to exclude organizers from their

property, the strike protections at issue in this case do

not permit the physical invasion of company land or

complete elimination of employers’ real property

value. Instead, they merely provide that employees’

right to strike can still be protected, even if a strike

causes some incidental economic harms to the employer because the employer was unprepared to continue operations and perishable products were therefore rendered unfit for their intended sale. This is not

a taking.

First, the workers’ protected work stoppage did not

physically appropriate or invade employer property,

unlike regulations found to be physical takings such as

requiring landlords to allow the permanent placement

of cable facilities in their apartment buildings, Loretto,

458 U.S. at 435-40, or requiring employers to allow

non-employee union organizers access to their property regardless of necessity, Cedar Point, 141 S. Ct. at

2069. Significantly, this Court explained in Fansteel

that NLRA protections do not “invest those who go on

strike with an immunity from discharge for acts of

trespass or violence against the employer’s property.”

306 U.S. at 255 (holding that strikers’ multi-day occupation of company buildings resulting in battles with

sheriff’s deputies was unprotected). That means that

conduct by striking workers who, for example, occupy

their workplaces in a sit-down strike or burn down facilities is not protected or “arguably protected” by the

Act, and state law claims regarding such activity

would not be preempted by Garmon.

But that is not what happened here. Far from occupying or destroying employer property, employees

“immediately and suddenly ceas[ed] all concrete delivery activity work, and abandon[ed] or discharg[ed] at

the Glacier facilities the batched concrete under their

control.” J.A. 12-13.2 Petitioner notes that Cedar

Point’s dissenting justices “recognized that a taking occurs when ‘the right[] to possess, use and dispose of”

property is “effectively destroy[ed].” Pet’r Br. 48 (quoting Cedar Point, 141 S. Ct. at 2084 (Breyer, J., dissenting)). But this is irrelevant to the present case, where

Glacier physically “possessed” its property, could have

2 When considering whether NLRA preemption is appropriate, “[i]t is the conduct being regulated, not the formal description

of governing legal standards, that is the proper focus of concern.”

Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. of Am.

v. Lockridge, 403 U.S. 274, 292 (1971) (explaining that preemption was warranted over a state law claim framed as a “breach of

contract rather than an unfair labor practice”). As such, the underlying alleged conduct is relevant to the Garmon analysis, regardless of Glacier’s framing that it seeks damages “for the initiation of destruction of property by the Union,” not “for strike activity,” J.A. 49.

“used” the property had it been prepared to respond to

a strike, and indeed actually “disposed” of the concrete

at issue.

As such, this case is distinguishable from Rockford

Redi-Mix Inc. v. Teamsters Local 325, where an Illinois

state court held that Garmon preemption did not apply. 551 N.E.2d 1333, 1338 (Ill. App. Ct. 1990). There,

a union officer informed an employer that drivers’

“trucks were parked down the road and that the drivers would not return unless he signed the union contract.” Id. at 1335. The drivers eventually left their

trucks off-site “with the ignitions off, drums stopped,”

and the employer was forced to launch “a search . . .

for the missing trucks.” Id. Once the trucks were

found, their engines were cold, and their cement had

hardened in their drums, damaging several trucks. Id.

at 1336. Unlike Glacier, this employer lacked the ability to possess, use, and dispose of its concrete because

its employees physically took employer property from

its possession.

Second, a total regulatory taking did not occur because Glacier’s entire economic interest or value in its

real property has not been eliminated. This Court has

held that a per se taking exists when a regulation “denies all economically beneficial or productive use of

land.” Lucas, 505 U.S. at 1015 (emphasis added); id.

at 1017 (suggesting that “total deprivation of beneficial

use is, from the landowner’s point of view, the equivalent of a physical appropriation” (emphasis added));

see also Murr, 137 S. Ct. at 1944 (explaining that in

determining whether all economically beneficial use of

land is denied, courts must look at the entire property,

rather than “divid[ing] a single parcel into discrete

segments and attempt[ing] to determine whether

rights in a particular segment have been entirely abrogated” (internal quotation marks omitted)); Tahoe-

Sierra, 535 U.S. at 331 (“[t]o the extent that any portion of property is taken, that portion is always taken

in its entirety; the relevant question, however, is

whether the property taken is all, or only a portion of,

the parcel in question” (internal quotation marks omitted)).

Glacier has asserted no such destruction of its real

property value—and it cannot. None of its real property was taken. This alone shows no total taking occurred: Lucas limits its per se rule to real property, and

this Court has never applied it to personal property.

As this Court explained in Horne, “Lucas recognized

that while an owner of personal property ‘ought to be

aware of the possibility that new regulation might

even render his property economically worthless,’ such

an ‘implied limitation’ was not reasonable in the case

of land.” 576 U.S. at 361 (quoting Lucas, 505 U.S. at

1027-28). Indeed, in Andrus v. Allard, this Court concluded that completely prohibiting the sale of products

from protected birds, including those from alreadykilled birds, did not constitute a taking. 444 U.S. 51,

66 (1979). Lucas therefore suggests “different treatment of real and personal property in a regulatory

case,” unlike in a physical taking case. Horne, 576

U.S. at 361; see also Maryland Shall Issue, Inc. v. Hogan, 963 F.3d 356, 365-66 (4th Cir. 2020), cert. denied,

141 S. Ct. 2595 (2021) (holding that per se total regulatory takings do not apply equally to real and personal property).

But even assuming—contrary to Lucas—that a per

se total taking of personal property can occur, preemption of Petitioner’s state law tort claims still not would

result in a taking here. Lucas holds that a total taking

occurs when regulations force someone to “leave his

property economically idle.” 505 U.S. at 1019. This is

not the case under the NLRA scheme. Strikes are economic warfare, and federal labor law grants employers

economic weapons of their own that they can use to

continue operations. For example, they can choose to

lock out their workers and operate using temporary replacement labor to gain leverage for negotiations.

NLRB v. Brown, 380 U.S. 278, 283, 290 (1965) (holding

lawful store owners’ lockout and use of temporary replacement workers in part “to save their considerable

stock of perishable food produce”). And if a strike occurs, employers can lawfully continue operations using

replacement workers. See American Baptist Homes of

the West, 364 N.L.R.B. No. 13, at 3-7 (2016). If an employer fails to prepare for a strike and is unable to sell

its perishable goods as originally intended after a

strike occurs, the employer’s inability to recover the

value of such goods does not render the NLRA’s regulatory scheme a total taking.

And third, Cedar Point was grounded in the importance of the “right to exclude” individuals from

property. The challenged regulation in that case did

not set rules on what employees already present on employer property could do; it forced the employer to permit outsiders on to their property that was otherwise

closed to the public. 141 S. Ct. at 2077. Its reasoning

applies no further. Regulations granting labor protections to employees who voluntarily relinquish employer property and go on strike—like labor protections for employee conduct on employer grounds—do

not raise the same Takings Clause concerns, just as

“[l]imitations on how a business generally open to the

public may treat individuals on the premises are readily distinguishable from regulations granting a right

to invade property closed to the public.” Id.; cf. Yee v.

City of Escondido, 503 U.S. 519, 526-32 (1992) (holding

that the combination of mobile home eviction protections and a rent control ordinance was not a physical

taking because “tenants were invited by petitioners,

not forced upon them by the government”); FCC v.

Florida Power Corp., 480 U.S. 245, 250-53 (1987)

(holding that a government order reducing rents for

cables on utility poles was not a physical taking and

noting “the unambiguous distinction between a commercial lessee and an interloper with a government license”). To hold otherwise could place countless other

workplace protections at risk by transforming, for example, laws barring employers from firing employees

because of their race or because of whistle-blowing activity into per se takings, under the theory that the employer is being forbidden from enforcing a right to exclude certain individuals from his property.

Because the NLRA’s strike protections do not extend to occupation of employer premises or violence

against employer property, they are nothing like the

actions this Court has concluded might amount to takings per se. Protecting employees’ right to withhold

their labor even when this results in perishable products being made unavailable for sale does not constitute a taking. The challenged protection and preemption scheme neither authorizes a physical occupation

of employer property, nor eliminates entirely the value

of an employer’s real property. Lucas, 505 U.S. at

1015.

***

In short, the text and history of the Takings Clause

demonstrate that it was designed to apply only to actual physical appropriations of private property. Although this Court has recognized that the Clause also

covers regulations that are tantamount to a physical

appropriation because they effect a physical invasion

of property or render the entirety of someone’s real

property valueless, Lucas, 505 U.S. at 1015, Glacier is

wrong to claim that a per se taking is implicated in this

case. The NLRA’s protection of employees’ right to

strike, even when withholding labor results in product

loss, and associated preemption of certain state law

claims does not effect such a taking, and constitutional

avoidance principles have no role to play here.

CONCLUSION

For the foregoing reasons, the judgment of the

Washington Supreme Court should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

J. ALEXANDER ROWELL

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

December 8, 2022

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.