Cedar Point Nursery v. Hassid and Judicial Expansion of the Takings Clause
Chief Counsel, Constitutional Accountability Center and Appellate Counsel, Constitutional Accountability Center
Corporate America has been remarkably successful under the Roberts Court, and this past Term proved no exception. As our colleague Brian Frazelle, senior appellate counsel at the Constitutional Accountability Center (CAC), has pointed out, corporate America won “the vast majority of its cases, consistently reversing lower-court wins for plaintiffs or the government.” One of those lower-court reversals was in Cedar Point Nursery v. Hassid, which involved a challenge to a California regulation that granted labor organizers limited access to private farmland to solicit union support. Although the U.S. Court of Appeals for the Ninth Circuit had rejected a claim by two agricultural corporations that the regulation amounted to a per se physical taking of property, or an appropriation of property requiring compensation under the Fifth Amendment’s Takings Clause, the majority of the U.S. Supreme Court disagreed in an opinion that continued a decades-long conservative project to rewrite the meaning of the Takings Clause. Indeed, while Justice Brett Kavanaugh’s concurrence lauded the majority opinion for “carefully adher[ing] to constitutional text, history, and precedent,” the majority in fact adhered to none of the three.
To be clear, the majority’s opinion—which invoked “[t]he Founders” while casually sweeping aside their understanding of the Takings Clause—was not originalist. Instead, it is a prime example of what CAC calls “fauxriginalism”—the practice of claiming the mantle of originalism in judicial opinions and legal arguments without faithfully engaging with what the text and history of the whole Constitution actually show. When it comes to the Takings Clause, constitutional text and history show that the clause guarantees compensation only for actual, physical appropriations of property, not regulations allowing limited access to property like the one at issue in Cedar Point. Indeed, as Justice Antonin Scalia once recognized, “early constitutional theorists did not believe the Takings Clause embraced regulations of property at all.” To be sure, beginning in the late 1800s, the Supreme Court held that the Takings Clause may also apply in cases involving the functional equivalent of a direct physical appropriation of property. Yet even in those cases, the Court was careful to cabin the clause’s application to regulations that could reasonably be considered tantamount to the sorts of direct expropriations that were within the scope of the clause’s original meaning.
A more fundamental change in the Court’s Takings Clause jurisprudence occurred in the late twentieth century, and it was the culmination of a concerted conservative effort to transform the meaning of the clause. Beginning in the 1980s, Richard A. Epstein, a professor at the University of Chicago Law School, posited that the Takings Clause could be used as a tool to curb federal regulations during the Reagan administration. And Justice Scalia, despite his self-professed commitment to originalism, answered that call. CAC, and its precursor, Community Rights Counsel, worked tirelessly to combat this deliberate distortion of the original meaning of the Takings Clause and expansion of its scope. Thanks in part to those efforts, even though the Court expanded the scope of the clause, it repeatedly made clear that the clause’s original meaning still helped provide an outer limit on its application and that only permanent physical invasions of property and regulations that render property economically valueless qualify as per se takings.
Yet the Court’s decision in Cedar Point went even further than these earlier cases, holding that the California regulation was a per se taking even though it allowed for only limited, temporary access to property and even though it did not diminish the property’s value. In doing so, the decision potentially called into question “virtually every government-authorized invasion”—no small thing given that, as the Court has recognized, “[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.”
In sum, this was a deeply troubling decision—both because it demonstrated the majority’s willingness to flout constitutional text, history, and precedent to rule for corporate interests and because, in doing so, it could produce severe consequences for workers, the right to organize, and state regulatory efforts in a number of areas.
Since 1975, California law has permitted labor organizers to visit agricultural employers’ property during non-work time on a limited number of days to “talk with employees and solicit their support.” Cedar Point Nursery, a strawberry grower in northern California, and Fowler Packing Company, a Fresno-based shipper of grapes and citrus, challenged California’s access regulation in 2016 by filing suit against several members of California’s Agricultural Labor Relations Board in their official capacity. The agricultural corporations argued that California’s access regulation violated the Takings Clause of the Fifth Amendment, which provides that private property shall not “be taken for public use, without just compensation.” The district court, however, rejected the corporations’ argument that the access regulation constituted a per se physical taking, reasoning that the regulation did not “allow the public to access their property in a permanent and continuous manner for whatever reason.” The court denied the corporations’ motion for a preliminary injunction and granted the Board’s motion to dismiss. The Ninth Circuit affirmed, holding that the challenged regulation does not effect a per se taking of property within the meaning of the clause. The Supreme Court agreed to take up that question.
On June 23, 2021, the Court issued a 6–3 decision, reversing the Ninth Circuit. In an opinion authored by Chief Justice John Roberts, the Court held that California’s access regulation amounted to a per se physical taking requiring compensation under the Takings Clause. It began by stating generally that “[t]he Founders recognized that the protection of private property is indispensable to the promotion of individual freedom.” It then discussed the Court’s jurisprudence regarding both physical takings and “use restrictions that go ‘too far’” and therefore constitute “regulatory takings.” But the Court indicated that “that label can mislead” because “[g]overnment action that physically appropriates property is no less a physical taking because it arises from a regulation.” The Court determined that, under its precedent, all “government-authorized invasions of property . . . are physical takings requiring just compensation.” Thus, it concluded that “[w]henever a regulation results in a physical appropriation of property, a per se taking has occurred,” regardless of the duration of access or any economic effects.
Applying that rule to the California regulation at issue, the Court held that “[t]he access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking.” It emphasized that “[t]he right to exclude is ‘one of the most treasured’ rights of property ownership,” and it concluded that “the regulation appropriates for the enjoyment of third parties the owners’ right to exclude” and also “appropriates a right to physically invade the growers’ property—to literally ‘take access.’”
Finally, the Court rejected the notion that its decision might threaten a litany of state and federal government activities for three reasons. First, it explained that isolated physical invasions would still be assessed as individual trespassing torts rather than as takings. Second, it stated that “many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights.” Third, the Court explained that the government can avoid implicating the Takings Clause by conditioning the receipt of certain benefits on the provision of a right of access to property. The Court explained that “[u]nder this framework, government health and safety inspection regimes will generally not constitute takings.”
Justice Kavanaugh concurred and wrote separately to explain that, in his view, the Court’s holding in NLRB v. Babcock & Wilcox Co. “strongly support[ed]” the Court’s decision in Cedar Point. In Babcock, the National Labor Relations Board asserted that several employers had violated the National Labor Relations Act, which protects employees’ rights to self-organization, by unreasonably restricting union organizers’ access to company-owned parking lots, where the organizers sought to distribute union literature. The Court held that an employer can “validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer’s notice or order does not discriminate against the union by allowing other distribution.” That case did not involve a direct Takings Clause challenge, but the companies argued that the Board’s reading of the Act would infringe their Fifth Amendment property rights, urging that Congress “has at no time shown any intention of destroying property rights secured by the Fifth Amendment, in protecting employees’ rights of collective bargaining under the Act.”
Justice Kavanaugh noted that the Court in Babcock had “agreed with the employers’ argument that the Act should be interpreted to avoid unconstitutionality.” He then reasoned that “Babcock recognized that employers have a basic Fifth Amendment right to exclude from their private property, subject to a ‘necessity’ exception similar to that noted by the Court today.” Thus, in Justice Kavanaugh’s view, “Babcock strongly supports the growers’ position in [Cedar Point] because the California union access regulation intrudes on the growers’ property rights far more than Babcock allows.”
In dissent, Justice Stephen Breyer, writing also for Justices Elena Kagan and Sonia Sotomayor, criticized the majority’s determination that “virtually every government-authorized invasion is an ‘appropriation,’” emphasizing that the California regulation “does not ‘appropriate’ anything; it regulates the employers’ right to exclude others.” He observed that “the regulation before us allows only a temporary invasion of [an owner’s] property” and that the Court’s “prior cases make clear that . . . this kind of temporary invasion amounts to a taking only if it goes ‘too far.’” He explained that the regulation did not “directly appropriate private property for its own use,” nor did it “cause a permanent physical occupation of private property.” He concluded, “Th[e] issue is whether a regulation that temporarily limits an owner’s right to exclude others from property automatically amounts to a Fifth Amendment taking. Under our cases, it does not.”
Justice Breyer also expressed skepticism regarding the Court’s assertion that its decision would still permit certain government-authorized invasions of private property, stating, “I suspect that the majority has substituted a new, complex legal scheme for a comparatively simpler old one.” Although he acknowledged that it can be difficult to determine whether a regulation is “temporary” or “permanent” or goes “too far,” he explained that he would have stuck with the Court’s existing approach because he did “not believe that the Court has made matters clearer or better.” He concluded that a regulation granting a temporary right of access should not “automatically” be considered a taking.
II. Rewriting the Takings Clause
A. The Original Meaning of the Takings Clause
The Fifth Amendment provides that “private property [shall not] be taken for public use, without just compensation.” By its terms, the scope of the Takings Clause, which applies to the states through the Fourteenth Amendment, “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.” While the Constitution does not define the term “takes,” a “taking” “most naturally means an expropriation of property, such as when the government exercises its eminent domain power to acquire private property to build a road, a military base or a park.”
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. Significantly, 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.” Thus, during the Revolutionary War, the military regularly seized private goods without providing compensation.
Indeed, “[o]nly two foundational documents of the colonial era provided even limited recognition of a right to compensation” for the taking of private property, and both covered only physical appropriations of property. First, the Massachusetts Body of Liberties, adopted in 1641, imposed a compensation requirement that applied only to the seizure of personal property: “No mans Cattell 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.” 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. 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.” Although colonial governments commonly regulated land use and business operations, no colonial charter required compensation for property owners affected by those regulations—not even when the regulations affected a property’s value.
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 compensation requirements” for physical takings or for regulations that affected property rights. As state constitutions later began to provide compensation for the taking of property, those protections applied only to physical appropriations of property. 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.” 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.” 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.” 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.”
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.” Significantly, the statements of James Madison, who drafted the Takings Clause, “uniformly indicate that the clause only mandated compensation when the government physically took property.” Madison believed that physical property needed special protection in the form of a compensation requirement “because its owners were peculiarly vulnerable to majoritarian decisionmaking.” 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.” 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.” 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.
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.” 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.”
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,” 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.” 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.
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,’” 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.” 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.”
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.” In fact, until the last few decades of the nineteenth century, the Court steadfastly refused to extend the clause beyond actual appropriations. In 1870, the 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.”
B. Supreme Court Expansion of the Takings Clause
The notion that the Takings Clause might apply to government actions beyond the physical expropriation of property emerged gradually over the next century as the Court considered cases in which government action very closely resembled expropriations of property. But importantly, in all of these cases, the Court carefully limited the application of the clause to regulations that it viewed as tantamount to a direct appropriation of property.
The first of these cases, Pumpelly v. Green Bay & Mississippi Canal Co., involved a state-authorized dam that flooded the petitioner’s property. The Court noted that “[i]t would be a very curious and unsatisfactory result, if . . . it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it . . . can inflict irreparable and permanent injury to any extent,” or “in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use.” 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.” The Court made clear, however, that “[b]eyond this we do not go, and this case calls us to go no further.”
Nearly fifty years later, in Pennsylvania Coal Co. v. Mahon, 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 the 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.
Mahon involved a challenge to a Pennsylvania law that prevented coal companies from mining coal that formed the support for surface-level land. Pennsylvania law recognized this support property as a distinct property interest, and the Court stated that the Act “purports to abolish what is recognized in Pennsylvania as an estate in land—a very valuable estate.” The Court declared that the Pennsylvania law had “very nearly the same effect for constitutional purposes as appropriating or destroying [the estate],” and, again relying on this analogy to an expropriation of property, declared that a regulation can be considered a taking when it “goes too far.” The 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.”
Similarly, in United States v. Causby, the Court held that the government had effected a taking by directing “frequent and regular flights of army and navy aircraft over respondents’ land at low altitudes” such that it “limit[ed] the utility of the land and cause[d] a diminution in its value.” The Court held that the government had effectively “taken” property and needed to provide just compensation because “there was a diminution in value of the property and . . . the frequent, low-level flights were the direct and immediate cause.”
The task of determining what regulations were sufficiently akin to an expropriation to require compensation under the Takings Clause proved to be “a problem of considerable difficulty,” however, as the Supreme Court acknowledged in Penn Central Transportation Co. v. City of New York. 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.” Under this balancing test, no one factor alone is determinative, and significant diminutions in property value are generally permissible without compensation.
In more recent years, the Court has continued to recognize that there are limits on applying the Takings Clause beyond direct appropriations of physical property. In Loretto v. Teleprompter Manhattan CATV Corp., the Court held that “a permanent physical occupation of property is a taking.” Importantly, the Loretto Court “underscore[d] the constitutional distinction between a permanent occupation and a temporary physical invasion.” Similarly, in Nollan v. California Coastal Commission, the Court held that a “permanent physical occupation” amounts to an unconstitutional taking “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.”
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,” “at least with regard to permanent invasions,” such as those requiring landlords to allow the permanent placement of cable facilities in their apartment buildings, and (2) regulations that “den[y] all economically beneficial or productive use of land.” 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.” The Court in Lucas ultimately held that a South Carolina law that prevented the petitioner from erecting any permanent habitable structures on his land, rendering the parcels “valueless,” “accomplished a taking of private property under the Fifth and Fourteenth Amendments requiring the payment of ‘just compensation.’”
Thus, before Cedar Point, the Court had primarily applied the Takings Clause to prevent uncompensated expropriations of physical property, and while it held that some regulations amount to takings per se, it was careful to limit that classification to regulations that are tantamount to direct expropriations because they either effect a permanent physical invasion of property (as in Nollan and Loretto) or render it valueless (as in Mahon and Lucas). Where a challenged regulation did not fit into either of these categories of takings per se, the Court generally applied the multifactor test articulated in Penn Central. The Court recognized that, “[a]lthough [its] regulatory takings jurisprudence cannot be characterized as unified, these three inquiries (reflected in Loretto, Lucas, and Penn Central) 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.”
C. Cedar Point and the Takings Clause
The Court’s decision in Cedar Point departed from both the original meaning of the Takings Clause and the Supreme Court’s earlier precedents, which reflected an understanding that regulations could be considered takings per se only when they permitted a permanent and continuous invasion of property or deprived property of all economic value. The California regulation challenged in Cedar Point did neither.
First, the California regulation did not allow a permanent physical invasion of property, such as those requiring landlords to allow the permanent placement of cable facilities in their apartment buildings. It also did not provide 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,” as the Court has recognized might signify a taking. Far from it. The regulation at issue specifically limited who was allowed to visit the property (generally two labor organizers per work crew), when they could visit (one hour before work, one hour during lunch, and one hour after work for up to 120 days each year), where they could go (only where “employees congregate before and after working” and where “employees eat their lunch”), why they could visit (only to “solicit . . . support” of employees), and what they could do while visiting (strictly no “conduct disruptive of the employer’s property or agricultural operations”).
Moreover, unlike the “permanent and continuous” occupations that the Court had held amounted to takings in the past, the California regulation allowed an agricultural employer to retain the “right to possess the occupied space himself.” Nothing in the regulation required him to clear out of the property—or to stop using any part of it—to allow the labor organizers to enter. There was no “practical ouster of [the owner’s] possession.” And the regulation certainly did not “require . . . that the [property] owner permit another to exercise complete dominion” over his property, as did the action the Court held unconstitutional in Loretto. Instead, the regulation was strictly cabined to preserve the owner’s property rights while allowing labor organizers to visit temporarily.
Second, the California regulation did nothing to diminish any economic interest or value in the property. While the Court had recognized that the “total destruction” of the full value of a property could constitute a taking under the Fifth Amendment, and that a regulation that rendered private property “wholly useless” could require compensation under the clause, the California regulation did not diminish the value of the property at all. It in no way interfered with agricultural employers’ ability to conduct business on their property, and the property therefore lost no value as a result of the regulation. In fact, the regulation expressly prohibited any visiting organizers from engaging in “conduct disruptive of the employer’s property or agricultural operations.” Before this case, the Court had recognized that a “deprivation of the right to use and obtain a profit from property . . . is clearly relevant” to the question whether a particular regulation effects a taking, and in Cedar Point, there was no deprivation of the right to use and obtain a profit. And even if there were such a deprivation—which there plainly was not—that alone should have been insufficient to render the regulation unconstitutional.
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 the Court had previously held that the clause also covers regulations that are tantamount to a physical appropriation because they effect a permanent and continuous occupation or render private property valueless, that was not the situation in Cedar Point. The Court therefore should have held that the challenged regulation did not effect a taking per se, as it allowed only the intermittent entry of certain individuals into designated areas and specifically did not disrupt business operations or devalue any property.
As the next Section explains, however, the Court reached the opposite conclusion. And while it purported to apply an originalist methodology, its decision in fact cannot be reconciled with constitutional text or history, or with the Court’s precedents.
III. Cedar Point’s “Fauxriginalism” and Distortion of Supreme Court Precedent
Although the Court’s decision in Cedar Point purported to ground its analysis in the Takings Clause’s text and history, it in fact did no such thing. Instead, it stretched the scope of the Takings Clause far beyond its original meaning and, indeed, even further than the Court had taken the clause before.
It first sought to ground its decision in the text of the clause, emphasizing that the California regulation itself expressly allows union organizers to “take access” to private property. Quoting a modern dictionary, it stated that “[i]n ‘ordinary English’ ‘appropriation’ means ‘taking as one’s own,’ and the regulation expressly grants to labor organizers the ‘right to take access.’” Even in modern English, however, “taking access” to property is generally not the same as “taking as one’s own.” A sports fan with a ticket to a baseball game, for example, has been granted temporary access to a particular seat in a stadium, but she would likely be met with deep skepticism if she were to claim that she now effectively owned that seat—that she had taken it as her own. More to the point, the relevant definition of the word “take”—at least to a true originalist—is the one from the time of the Fifth Amendment’s ratification. As discussed above, in 1789, “to take” was defined 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.” A regulation that allows limited access onto private land for a particular purpose therefore can hardly be said to “take” anything, regardless of the Agricultural Labor Relations Board’s poor choice of wording in promulgating the regulation. As Justice Breyer explained in his dissent, “The regulation does not appropriate anything. . . . It gives union organizers the right temporarily to invade a portion of the property owners’ land. It thereby limits the landowners’ right to exclude certain others. The regulation regulates (but does not appropriate) the owners’ right to exclude.”
The majority’s meager attempt to ground the decision in the clause’s history was equally flawed. Chief Justice Roberts stated, without further explanation, that “[t]he Founders recognized that the protection of private property is indispensable to the promotion of individual freedom. As John Adams tersely put it, ‘[p]roperty must be secured, or liberty cannot exist.’” But, as explained above, the historical record is clear that, “[a]side from Madison, there was remarkably little desire for any kind of substantive protection of property rights against the national government,” and Madison himself was singularly focused on protecting against direct appropriations of physical property. The Court therefore sought to ground its decision in a history that did not exist.
Perhaps surprisingly, given all of its rhetoric about the Framers, the Court expressly acknowledged that “[b]efore the 20th century, the Takings Clause was understood to be limited to physical appropriations of property.” It explained that “[i]n Pennsylvania Coal Co. v. Mahon, however, the Court established the proposition that ‘while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.’” In other words, the Court recognized that it has, of its own volition, expanded the scope of the Takings Clause beyond how the clause was originally understood. Notably, the Court did not seem critical of this more recent history; instead, it continued that expansion.
Indeed, the Court’s decision in Cedar Point was in no way compelled by precedent; instead, the Court extended the scope of the clause much further than it had before. In describing its precedents, the Court notably glossed over key details and distinguishing facts. In its discussion of Nollan, for instance, the Court failed to mention that that case had involved a permanent and continuous right of access to private property. It instead summed up Nollan’s holding as “reiterat[ing] that the appropriation of an easement constitutes a physical taking.” It gave no indication that Nollan had in fact held that a “permanent physical occupation” amounts to an unconstitutional taking “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.”
In a similar manner, the Court did not mention that Causby, another case where the Court had found an unconstitutional taking, had involved a significant devaluation of property. According to the Court in Cedar Point, it had held in Causby “that the invasion of private property by overflights effected a taking.” The Court in Cedar Point stated that “[b]ecause the damages suffered by the Causbys ‘were the product of a direct invasion of [their] domain,’ we held that ‘a servitude has been imposed upon the land.’” But that only reflects half the story. In Causby itself, the Court made clear that the government had effected a taking not only because it directed “frequent and regular flights of army and navy aircraft over respondents’ land at low altitudes,” but because doing so had “limit[ed] the utility of the land and cause[d] a diminution in its value.”
By glossing over these key features of its prior decisions, the Court appears at first glance to be dutifully following its precedent. After summarizing Nollan, Causby, and other cases in this revisionist manner, it stated that “[t]he upshot of this line of precedent is that government-authorized invasions of property—whether by plane, boat, cable, or beachcomber—are physical takings requiring just compensation.” But the Court had adopted no such rule. As explained above, the rule that the Court had articulated and repeatedly refined leading up to Cedar Point was that two categories of regulations are considered takings per se: (1) “regulations that compel the property owner to suffer a physical ‘invasion’ of his property,” “at least with regard to permanent invasions,” and (2) regulations that “den[y] all economically beneficial or productive use of land.” And importantly, 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.”
The rule that the Court announced in Cedar Point, therefore, was not dictated by precedent, and, indeed, by collapsing the distinction the Court had previously drawn between physical takings and regulatory takings that go “too far,” it only drove the Court’s interpretation of the clause further from its original meaning. As Justice Breyer explained in his dissent, the Court’s decision could have severe repercussions in future cases, as “activities ranging from examination of food products to inspections for compliance with preschool licensing requirements” all “permit temporary entry onto (or an ‘invasion of’) a property owner’s land.”
* * *
There is no doubt that the Court’s Cedar Point decision is significant. At a minimum, it will, as one commentator put it, “hobble unions’ ability to help California’s agricultural workers, who toil in dangerous conditions, facing the persistent threat of illness and death, for rock-bottom wages.” And its reach could potentially extend far more broadly, as Justice Breyer pointed out in his dissent. But Cedar Point’s significance is not limited to its practical consequences; it is also an important reminder that the Roberts Court’s originalism is far too often “fauxriginalism,” a distortion of the text and history of the Constitution in the service of conservative ideological goals.
[*] Chief Counsel, Constitutional Accountability Center.
[†] Appellate Counsel, Constitutional Accountability Center.
 Brian Frazelle & Elizabeth Wydra, Quick Take: The Chamber of Commerce at the Supreme Court, 2020-2021, Const. Accountability Ctr. (July 1, 2021).
 Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2066 (2021).
 See id. at 2070, 2072.
 Id. at 2080 (Kavanaugh, J., concurring).
 See id. at 2071.
 See Praveen Fernandes, Originalism, Fauxriginalism, and Embracing the Constitution, Const. Accountability Ctr. (Feb. 7, 2019).
 See generally Brief of Constitutional Accountability Center as Amicus Curiae in Support of Respondents, Cedar Point Nursery, 141 S. Ct. 2063 (No. 20-107). The discussion in Part II is substantially drawn from this amicus brief. For an additional discussion of this point, see Bethany R. Berger, Eliding Original Understanding in Cedar Point Nursery v. Hassid, Yale J.L. & Humans. (forthcoming) (manuscript at 3) (“Although Cedar Point v. Hassid wraps itself in a façade of originalism, it violates this tradition.”).
 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1028 n.15 (1992).
 Id. at 1014.
 See generally Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (1985).
 Lucas, 505 U.S. at 1015, 1017.
 Comm. Rights Council, The Takings Project: Using Federal Courts to Attack Community and Environmental Protections (1998).
 Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2081 (2021) (Breyer, J., dissenting).
 Id. at 2087 (Breyer, J., dissenting) (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922)).
 Cal. Code Regs., tit. 8, § 20900(e) (1975).
 Cedar Point Nursery, 141 S. Ct. at 2069–70.
 U.S. Const. amend. V.
 Cedar Point Nursery v. Gould, No. 1:16-cv-00185-LJO-BAM, 2016 WL 1559271, at *5 (E.D. Cal. Apr. 18, 2016) (emphasis omitted).
 Cedar Point Nursery, 141 S. Ct. at 2070.
 Id. at 2080.
 Id. at 2072.
 Id. at 2071.
 Id. at 2072 (quoting Horne v. Dep’t of Agriculture, 576 U.S. 350, 360 (2015); Yee v. Escondido, 503 U.S. 519, 527 (1992)).
 Id. at 2074.
 Id. at 2072.
 Id. (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982)).
 Id. at 2074 (quoting Cal. Code Regs., tit. 8 § 20900(e)(1)(C)).
 Id. at 2078.
 Id. at 2079.
 Id. at 2080 (Kavanaugh, J., concurring) (citing NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956)).
 Babcock, 351 U.S. at 106.
 Id. at 112.
 Cedar Point Nursery, 141 S. Ct. at 2080 (Kavanaugh, J., concurring) (citation omitted).
 Id. at 2081 (Breyer, J., dissenting).
 Id. at 2082 (emphasis added) (quoting Horne v. Dep’t of Agriculture, 576 U.S. 350, 357 (2015)).
 Id. at 2083.
 Id. at 2088.
 Id. at 2089 (“I would stick with the approach that I believe the Court’s case law sets forth. ‘Better the devil we know . . . .’”).
 Id. at 2089–90.
 U.S. Const. amend. V.
 Douglas T. Kendall & Charles P. Lord, The Takings Project: A Critical Analysis and Assessment of the Progress So Far, 25 B.C. Envtl. Aff. L. Rev. 509, 515 (1998); see also First English Evangelical Lutheran Church of Glendale v. City of Los Angeles, 482 U.S. 304, 314–15 (1987).
 See Kendall & Lord, supra note 51, at 515.
 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.”).
 Id. at 783 (“[T]he framers did not favor absolute protection of property rights.”).
 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 Dall. 357, 363 (Pa. 1788) (upholding uncompensated seizure of provisions from private citizens during the war).
 Treanor, supra note 53, at 785.
 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).
 Treanor, supra note 53, at 785–86.
 Id, at 786 (quoting Fundamental Consts. of Carolina art. 44 (1669), reprinted in 1 Bernard Schwartz, The Bill of Rights: A Documentary History 115 (1971)).
 See id. at 789 (collecting examples).
 Id. at 788–89; see 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.”).
 Treanor, supra note 53, at 789.
 See id. at 791.
 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).
 Mass. Const. of 1780, part I, art. X, reprinted in 3 The Federal and State Constitutions, supra note 64, at 1891.
 Nw. Ordinance of 1787, art. 2, reprinted in Sources of Our Liberties, supra note 57, at 395.
 Treanor, supra note 53, at 791 (collecting cases).
 Id. at 784; id. at 827, 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”).
 Id. at 791; see Lucas v. South Carolina Coastal Council, 505 U.S. 1003,1057 n.23 (1992) (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.”); Bernard Schwartz, Takings Clause—“Poor Relation” No More?, 47 Okla. L. Rev. 417, 420 (1994).
 Treanor, supra note 53, at 847.
 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).
 James Madison, Observations on the “Draught of a Constitution for Virginia” (Oct. 15, 1788), in 11 The Papers of James Madison 287 (Robert A. Rutland et al. eds., 1977).
 See Treanor, supra note 53, at 854.
 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1028 n.15 (1992) (quoting James Madison, Speech Proposing Bill of Rights (June 8, 1789), in 12 J. Madison, The Papers of James Madison 201 (C. Hobson et al. eds., 1979)).
 Schwartz, supra note 69, at 420.
 Id. at 420–21 (quoting 1-2 Samuel Johnson, A Dictionary of the English Language (1755-56)).
 See Treanor, supra note 53, 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)).
 1 William Blackstone, Commentaries, supra note 55, at 305–06.
 Theodore Sedgwick, A Treatise on the Rules Which Govern the Interpretation and Application of Statutory and Constitutional Law 519–20 (1857).
 N. Transp. Co. v. City of Chicago, 99 U.S. 635, 642 (1878) (emphasis added).
 Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1870); see Tahoe-Sierra Pres. 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 . . . .”).
 Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. 166, 167 (1871).
 Id. at 177–78.
 Id. at 181 (emphases added).
 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
 Id. at 415–16 (“The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. It may be doubted how far exceptional cases, like the blowing up of a house to stop a conflagration, go-and if they go beyond the general rule, whether they do not stand as much upon tradition as upon principle.”); see Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005) (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, 260 U.S. at 412, 415–16.
 Id. at 414.
 Id. at 415; see Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014 (1992) (reiterating the “oft-cited maxim” 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)); see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 325 n.21 (2002).
 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 127–28 (1978) (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 constituted a “taking” (emphasis added)); Hudson Cty. Water Co. v. McCarter, 209 U.S. 349, 355 (1908) (explaining that if the government were to limit the height of buildings in a city “so far as to make an ordinary building lot wholly useless,” such a limit would require compensation (emphasis added)).
 United States v. Causby, 328 U.S. 256 (1946).
 Id. at 262.
 Id. at 267; id. at 265 (noting that the “continuous invasions” of the airspace “affect[ed] the use of the surface of the land itself”).
 Penn Cent. Transp. Co., 438 U.S. at 123; see also id. at 124 (“[T]his 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.”).
 See id. at 124–25.
 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982) (emphasis added).
 Id. at 434.
 Nollan v. California Coastal Ass’n, 483 U.S. 825, 832 (1987) (emphasis added).
 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992) (citing Loretto, 458 U.S. at 419).
 Id. (emphasis added) (citing Agins v. City of Tiburon, 447 U.S. 255, 260 (1980); Nollan, 483 U.S. at 834); see also 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)).
 Id. at 1019.
 Id. at 1007 (citation omitted).
 Id. (quoting U.S. Const. amend. V).
 See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005).
 See Lucas, 505 U.S. at 1015.
 Nollan v. California Coastal Ass’n, 483 U.S. 825, 832 (1987) (emphasis added).
 Cal. Code Regs., tit. 8, § 20900(e)(4)(A).
 Id. § 20900(e)(1)(A)–(B), (e)(3)(A)–(B).
 Id. § 20900(e)(3)(A)–(B).
 Id. § 20900(e).
 Id. § 20900(e)(4)(C).
 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982).
 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014 (1992) (quoting N. Transp. Co. v. Chicago, 99 U.S. 635, 642 (1878)) (brackets in original).
 Loretto, 458 U.S. at 436 (emphasis added).
 Armstrong v. United States, 364 U.S. 40, 48 (1960) (emphasis added).
 Hudson Cty. Water Co. v. McCarter, 209 U.S. 349, 355 (1908) (emphasis added); cf. Lucas, 505 U.S. at 1015, 1017 (explaining that the Takings Clause covers regulations that “den[y] all economically beneficial or productive use of land” and suggesting that “total deprivation of beneficial use is, from the landowner’s point of view, the equivalent of a physical appropriation” (emphasis added)).
 Cal. Code Regs., tit. 8, § 20900(e)(4)(C).
 Loretto, 458 U.S. at 436.
 See id.
 Lucas, 505 U.S. at 1015.
 Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2077 (2021) (quoting 1 Oxford English Dictionary 587 (2d ed. 1989); Cal. Code Regs., tit. 8 § 20900(e)(1)(C)).
 The Supreme Court has made clear that the Takings Clause, as incorporated against the states by the Fourteenth Amendment, should be analyzed in the same way as a Takings Clause claim against the federal government under the Fifth Amendment. See, e.g., Nollan v. California Coastal Ass’n, 483 U.S. 825, 829 (1987) (considering a challenge to a California Coastal Commission decision that petitioners argued “violated the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment,” and treating the case just like any Takings Clause case against the federal government). Indeed, the meaning of the clause did not seem to have changed between the ratifications of the Fifth and Fourteenth Amendments. See Theodore Sedgwick, A Treatise on the Rules Which Govern the Interpretation and Application of Statutory and Constitutional Law 519–20 (1857); Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1870) (noting that the Fifth Amendment 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”).
 Schwartz, supra note 69, at 420–21 (quoting 1-2 Samuel Johnson, A Dictionary of the English Language (1755-56)).
 Cf. Nat’l Fed. of Indep. Bus. v. Sebelius, 567 U.S. 519, 564–65 (2012) (concluding that the constitutional question whether a provision of the Affordable Care Act imposed a tax for purposes of the Anti-Injunction Act “was not controlled by Congress’s choice of label”).
 Cedar Point Nursery, 141 S. Ct. at 2083 (Breyer, J., dissenting).
 Id. at 2071 (opinion of the Court) (alteration in original) (quoting John Adams, Discourses on Davila, in 6 Works of John Adams 280 (C. Adams ed., 1851)).
 Treanor, supra note 53, at 834 (footnote omitted).
 See id. at 847.
 Cedar Point Nursery, 141 S. Ct. at 2071.
 Id. at 2071–72 (citation omitted) (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).
 See id. at 2072.
 Id. at 2073.
 Nollan v. California Coastal Ass’n, 483 U.S. 825, 832 (1987) (emphasis added).
 Cedar Point Nursery, 141 S. Ct. at 2073.
 Id. (quoting United States v. Causby, 328 U.S. 256, 265, 267 (1946)).
 Causby, 328 U.S. at 258.
 Id. at 262.
 Cedar Point Nursery, 141 S. Ct. at 2074.
 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992).
 Id. (emphasis added); see also 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)).
 Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 539 (2005).
 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
 Cedar Point Nursery, 141 S. Ct. at 2087 (Breyer, J., dissenting).
 Mark Joseph Stern, The Supreme Court’s Latest Union-Busting Decision Goes Far Beyond California Farmworkers, Slate (June 23, 2021).
 Cedar Point Nursery, 141 S. Ct. at 2087 (Breyer, J., dissenting).