Public Law & Legal Theory
In Cedar Point Nursery v. Hassid, the Supreme Court ruled 6-3 that a California regulation that gave union organizers limited access to agricultural worksites amounted to a per se taking. The Court went on to opine that any governmental grant of physical access, no matter how time-limited or functionally constrained, similarly works a per se taking, unless one of the Court’s exceptions applies. This essay argues that Cedar Point is best understood as part of an implicit takings apparatus designed to selectively apply scrutiny to property-facing governmental acts in ways that broadly entrench status quo patterns of property wealth. The Court has effectively constructed an escape room, a gratuitously convoluted analytic environment, that allows it to crack down on disfavored property regulations while giving a free pass to favored ones such as zoning. There is a vulnerability in the Court’s approach, however, if the goal is to knock out unwanted impositions on property owners: the Takings Clause allows the government to simply pay for what it takes. Thus, the Court’s elaborate escape room comes with a lighted exit sign located right above the cash register. And the amounts in question will often be trivial. Thus, for all its exclusion-fetishizing rhetoric, Cedar Point’s bark may prove worse than its bite.
Lee Anne Fennell, "Escape Room: Implicit Takings After Cedar Point Nursery", Public Law and Legal Theory Working Paper Series, No. 775 (2021)