Cedar Point Nursery v. Hassid isn’t just an attack on unions, it could bar health inspectors from inspecting restaurants.
Cedar Point Nursery v. Hassid, which the Supreme Court will hear next Monday, March 22, targets a nearly half-century-old regulation in California that permits union organizers to briefly enter agricultural worksites and speak to farmworkers. But the stakes in this case go far beyond union busting.
The plaintiffs in Cedar Point ask the justices to so radically reshape the Court’s approach to property rights that some of the most basic state and federal health and safety laws could fall. Among other things, if the Court accepts the plaintiffs’ argument that farm owners have a constitutional right to kick union organizers off their property, it could also mean that restaurants have a constitutional right to keep health inspectors from entering their kitchens, or that factory owners can prohibit the government from inspecting their machines to make sure those machines are safe to operate.
Cedar Point is one of the most radical property rights cases to reach the justices in a long time. And its plaintiffs ask for a significant reshaping of the American social contract.
The case arises out of the Fifth Amendment’s “Takings Clause,” which provides that private property shall not “be taken for public use, without just compensation.” The plaintiffs claim that this clause gives them a broad “right to exclude unwanted persons from private property,” and that this right permits a property owner to forbid a union from entering their land, even if state law permits that union to do so.
If the Cedar Point plaintiffs prevail, California will have to pay farm owners if it wants to enforce its pro-union regulation.
The Supreme Court has repeatedly held that laws granting unions a limited right to enter an employer’s property and speak to workers are constitutional. As the Court held in Central Hardware v. NLRB (1972), the government may require an employer to allow a union onto its property so long as “the access is limited to (i) union organizers; (ii) prescribed nonworking areas of the employer’s premises; and (iii) the duration of organization activity.”
But the Cedar Point plaintiffs don’t just ask for a decision that could sweep away decisions like Central Hardware. They ask for such a broad power to exclude others from private property that even things like health inspections could be endangered.
How the Takings Clause currently operates
The specific regulation at issue in Cedar Point has been on the books since 1975. It allows organizers to enter a worksite and speak to farmworkers for up to three (nonconsecutive) hours a day — the hour before the start of work, the hour after the end of work, and the workers’ lunch break.
Before a union may do so, it must notify the government and the employer. The union may enter the worksite for up to 30 days, and it may invoke this right to enter a particular worksite up to four times a year.
Thus, union organizers are allowed on a farm’s property for a maximum of 120 days a year, and only for a total of three hours per day.
The Cedar Point plaintiffs argue that this limited intrusion of their property amounts to what is known as a “per se” taking. Current law distinguishes between per se takings, which involve unusually severe intrusions on private property and are treated with particular skepticism by courts, and milder intrusions on property rights that fall under the broader umbrella of “regulatory” takings. Notably, the Cedar Point plaintiffs do not argue that California’s union access rule is a regulatory taking — so they appear to have made a strategic decision to avoid more measured legal arguments in favor of their more radical claim.
Property owners subject to a per se taking will generally prevail in court, while plaintiffs who allege a regulatory taking often lose — even if they challenge a land use regulation that imposes fairly substantial limits on how they can use their property. In one famous regulatory takings case, the Court upheld a New York City law that prevented the owners of Grand Central train station from constructing a high-rise office building on top of the terminal.
Very few cases qualify as per se takings. Under existing precedents, a law doesn’t count as a per se taking unless it deprives a property owner of “all economically beneficial or productive use” of their property, or subjects the property owner to a “permanent physical occupation” of their land.
So, under this framework, California’s union access rule is not a per se taking. Though a union that successfully organizes a workplace is likely to secure a contract that requires the employer to pay more money to its workers, unionization does not deprive an employer of all economic benefits from their land. And California’s rule does not allow anyone to permanently occupy a property owner’s land. It only allows union organizers to enter that land for a few hours a day, and only for about a third of the year.
How the Cedar Point plaintiffs want to remake the law
Before we get into some details about the Cedar Point plaintiffs’ argument, it’s helpful to understand two legal concepts.
The first is the concept of a “license.” Suppose that I hire a dog walker to walk my dog on weekday afternoons while I’m at the office. As part of this arrangement, I give the dog walker a key to my home and permission to enter in order to bring the dog outside for his walk. Under this arrangement, I have granted the dog walker a “license” to enter my home.
Licenses are often temporarily arrangements. And they typically (though not always) can be revoked by the property owner. If I decide that my dog walker is doing a bad job, I can fire them and take away their legal right to enter my home. And if I sell my home, the dog walker doesn’t retain any right to enter my former home once the new owner takes possession.
An “easement” is something else entirely. Suppose that Marge owns a house in a rural area with minimal electrical infrastructure. Now suppose that Big Electric wants to build a power line under Marge’s land that can bring electricity to her neighbors, and that Big Electric also seeks a permanent right to enter Marge’s land and repair this power line if it is damaged. So Big Electric offers Marge money in return for a permanent right to build and maintain this power line.
Big Electric is seeking an easement. Easements typically transfer a portion of a property owner’s rights permanently to someone else. Under ordinary circumstances, a landowner may exclude anyone they want from their property. But under the terms of this easement, Marge would permanently give up her right to exclude Big Electric’s repair crews. Big Electric would own the right to enter onto Marge’s land just as surely as Marge owns her home.
And if Marge someday sells her home to someone else, Big Electric would still own that easement. It would belong to Big Electric, not Marge, and therefore is not something that Marge could transfer to someone else.
This distinction between licenses and easements matters because in Nollan v. California Coastal Commission (1987), the Supreme Court held that, if the government seeks a “public easement across a landowner’s premises,” then the Takings Clause requires the government to compensate that landowner. The Cedar Point plaintiffs rely heavily on Nollan in their brief, arguing that the California union-access regulation “appropriates an easement across the property of all agricultural businesses in California” by stripping those businesses of the right to exclude certain people from their land.
Essentially, they argue that this alleged easement amounts to a per se taking because it permanently gives unions a right to visit certain worksites — even if the unions can only enter those worksites some of the time.
The state concedes that its regulation “is similar to an easement insofar as it affords union organizers a ‘nonpossessory right to enter’ the property of agricultural employers.” But the state ultimately argues that its regulation only grants “some form of license” to union organizers.
It’s a strong argument because, while the California regulation does diminish some property owners’ rights to exclude unwanted visitors, it does not resemble an easement in one very important way. The California regulation does not permanently transfer any of a farm owner’s property rights to unions. The unions do not own anything because of this regulation.
If California were to repeal its regulation tomorrow, the unions would be left with nothing. Had the California regulation actually imposed an easement on farm owners, then unions would retain their ownership of this easement even after the regulation that established it ceased to exist. Under Nollan, if the unions had obtained an easement allowing them to enter private land, then the Takings Clause would forbid California from taking this easement from them without compensating them.
If the Supreme Court agrees that California’s regulation appropriates an easement from farm owners, then the implications are profound
At least in marginal cases, the line between an easement and a license can be blurry. As one California appeals court judge complained in a 1994 opinion, commercial land use arrangements often involve such complicated terms that “it is increasingly difficult and correspondingly irrelevant to attempt to pigeonhole these relationships as ‘leases,’ ‘easements,’ ‘licenses,’ ‘profits,’ or some other obscure interest in land devised by the common law in far simpler times.”
But, to the extent that the Supreme Court is uncertain whether to classify the rights granted to unions by California’s regulation as a “license” (and therefore as more permissible under the Constitution) or an “easement” (and therefore subject to the Takings Clause’s restrictions), there are profound practical reasons to prefer the former option.
The state’s brief in Cedar Point spends several pages explaining just how many laws could become invalid if the government cannot require landowners to allow unwanted persons onto their property.
“The categorical rules proposed by petitioners and their amici would also imperil a wide variety of health- and safety-inspection regimes,” the state’s legal team writes. “These include, among many others, food and drug inspections, occupational safety and health inspections, and home visits by social workers,” as well as a federal law providing that “underground mines must be inspected ‘at least four times a year.’”
States also frequently enact laws allowing non-governmental workers to enter onto private land. “Many States authorize utility companies and similar entities to enter private property, even absent the owner’s consent, for surveys, repairs, connections, and similar purposes,” the state’s brief explains.
And, in what is likely a bid to secure the votes of conservative justices who support strict enforcement of immigration laws, California argues that the rule proposed by the Cedar Point plaintiffs could prevent law enforcement from arresting many undocumented immigrants.
Although longstanding legal principles permit “entries onto private property to make arrests or enforce criminal laws,” these principles “do not appear to apply to entries by Border Patrol agents to enforce noncriminal immigration laws, or by other government officials to enforce other civil laws.”
US laws permitting unwanted persons to enter a property owner’s land, moreover, stretch back to the early days of the American Republic. Indeed, a Massachusetts law from the 1640s, when the state was still a British colony, provided that “‘any man … may pass and repass on foot through any man’s propriety’ in order to access ‘great ponds’ for the purpose of fishing or fowling, so long as the entry did not damage the property.”
The strict limits on governmental regulation of property rights proposed by the Cedar Point plaintiffs, in other words, are quite novel. And those limits could invalidate countless state and federal laws, preventing health inspectors from investigating potentially unsafe businesses, and preventing workplace inspectors from investigating dangerous factories and other worksites.
The Roberts Court, which now has a 6-3 Republican majority, is often very hostile toward the rights of unions — even when those rights are clearly established by existing law. In Janus v. AFSCME (2018), for example, the Supreme Court overruled a 41-year-old decision permitting unions to collect certain fees from non-members who benefit from the union’s services.
But, to rule against the unions in Cedar Point, the Supreme Court wouldn’t simply need to undermine many years of decisions benefiting unions. Such a decision could profoundly rework the balance of power between landowners and the government, undercutting huge swaths of state and federal law in the process.
A justice who may be inclined to spite the United Farm Workers in Cedar Point, in other words, needs to ask themselves if they also feel safe eating out at a restaurant that is closed to health inspectors.
We don’t want justice in a story. We want the authors to know what justice might look like.
Wanda Maximoff has done a very bad thing.
As the finale of WandaVision, the Marvel TV series that bears her name and airs on Disney+, wraps up its story, the superpowered witch has begun to realize the extent of the hex she cast over the town of Westview, New Jersey. The citizens of the town, wholly innocent and unsuspecting, have awakened from a dreamlike state that lasted several days and caused them to reenact old sitcoms, for the amusement of an audience who didn’t really exist. (Well, technically, we were the audience, but I sure hope nobody in Westview knows about us.)
Notably, when the hex was established, Wanda didn’t realize the extent of what was happening. She was as trapped by her sitcom world as anybody else. But then she slowly began to understand the truth, while also realizing the hex was directly tied to the existence of her husband (the synthezoid Vision, dead in “actual” reality) and her children (wholly inventions of the hex). And she kept the whole thing going because she couldn’t bear to lose them.
In the finale, Wanda finally sees the pain she has spread, as the citizens of Westview plead with her to kill them, to free their children from the bedrooms the kids had been imprisoned in for the sake of a fake TV show, to make sense of what she had done to them. Wanda doesn’t know how to say anything. “They hate me,” she offers, and, yeah, probably.
Though both the series and Wanda seem to realize she’s done something horrible, the former seems determined to justify her motivations, if not her actions. Her grief at a life where everyone she loved was ripped away from her is so all-consuming that of course she imprisoned a bunch of people in a sitcom. Who wouldn’t?
“They’ll never know what you sacrificed for them,” says Monica Rambeau, the closest thing WandaVision has to an audience surrogate (a character designed to reflect how the audience is probably feeling about things and subtly direct those feelings in certain ways). This is true. I doubt anybody could understand what it means to have your magically created husband and children simply dissolve into thin air. But it also so privileges the emotions and drives of the show’s protagonist over those of any other characters that it feels as though WandaVision is writing off the very obvious horrors Wanda visited on this town.
I’m not really here to relitigate the finale, which has been endlessly argued about. I think WandaVision was deeply irresponsible in how it handled this plot point, creating a scenario where it all but sidled up to telling an abuser that she’s okay because her motives were okay. It didn’t cross that line, but that it came close is unsettling.
But many of the arguments about the finale have centered on what should have happened to Wanda, as though she were a real person who must be brought to justice. And because Marvel is telling one giant interconnected story with every movie and TV show it releases, it can, in theory, have Wanda face judgment for these actions years from now and retroactively seem to justify the storytelling choices made here.
I think these arguments are missing an important point. Wanda is a fictional character. By definition, she cannot face actual justice. But increasingly, we struggle to talk about fictional characters within the fictional contexts they exist in. We debate the military strategies of Game of Thrones characters and argue about the morality and political positions of all sorts of superheroes.
Yet these characters are all created, and they exist in universes that are constructed. Within those universes, the storytellers who create these stories are, functionally, gods. When we say we want Wanda Maximoff to face justice, I think what we’re really saying is that we want the storytellers to show us they know what justice would be, even if she doesn’t face it.
We want, in other words, story karma.
Story karma, defined
/cdn.vox-cdn.com/uploads/chorus_asset/file/6267915/Americans-1.jpg)
FX
I first encountered the term “story karma” in talking to Joel Fields, the co-showrunner of The Americans, in the wake of that show’s series finale. As the writers of The Americans were deciding how to end their story, they had to grapple with the fact that their main characters — Philip and Elizabeth Jennings, a pair of Soviet super spies posing as a married American couple — had both killed lots and lots and lots of innocent people and figured out a way to avert tensions in a way that allowed for continued rapprochement between the US and USSR. Though their story played out on a much larger scale than yours or mine, they had been responsible for very bad and very good things.
What true “justice” might have looked like for Philip and Elizabeth was going to prison. They did, after all, murder a bunch of people, no matter how pure their motivations might have seemed. The two probably would have considered themselves soldiers in a war without end, and the rules of traditional morality get bent in a war. Yet few of the people they killed were other spies. Too often, they were just people in the wrong place at the wrong time.
But the characters were also the protagonists of their series, and viewers had seen them fall in love all over again. We had watched them care for their kids and form a friendship with the FBI agent across the street. We had seen them at their most human, so many viewers found some part of themselves wanting them to get away with what they had done. Yes, they had done terrible things, but it often seemed like they felt bad about it. That counts for something. Right?
When Fields mentioned story karma to me, this is what he was talking about — how do you find a way to punish Philip and Elizabeth for their sins without punishing them too much? (Karma within Hinduism or Buddhism is a more layered concept than a simple binary between good and bad behavior or punishment and reward. I’m using the term in the colloquial sense of good actions or bad actions being repaid in kind, but you should feel free to think of this concept as “story justice” or whatever makes the most sense to you.)
To my mind, the solution The Americans came up with (which I won’t spoil here) was an elegant one. You might disagree because we’ve all got different ideas of how to balance these moral ledgers. But I think we’d agree that the writers of The Americans clearly thought long and hard about what “justice” might look like.
The protagonist of any story takes both moral and immoral actions across the course of that story, and the storyteller’s responsibility is to understand which actions are which — and, more importantly, to signal to the audience that they have actually thought about this. We will go along with the worst, most venal protagonist alive if we know the storyteller knows their protagonist is awful. The second that level of understanding starts to slip, however, it becomes much easier to doubt the storyteller knows what they’re doing. We want our gods to be just. We know they aren’t always. But we want them to know when they’ve screwed up.
The use of story karma differs from story to story. In some cases, an exact balancing of the moral scales is called for. (Star Wars, with its very clear-cut good-versus-evil binary, might be a good example.) In others, good or innocent people will be asked to suffer endlessly because that is what the story requires of them. (Think of the Stark kids from Game of Thrones.) In still others, horrible people will get away with horrible things. (Think of Tony Soprano or Breaking Bad’s Walter White.) In all of these cases, the storytellers tipped their hands to say, “Yes, we know what’s going on,” which made it easier to just enjoy the ride.
I would also argue that narrative proximity is a key part of story karma, especially in long-form serialized narratives, where viewers will only sit with something awful for so long before they start to turn on the story. For instance, in the second season of Breaking Bad, Walter White commits a grievous sin: He lets Jane, the girlfriend of his meth-making partner Jesse, choke to death on her own vomit. He doesn’t directly kill her (as he does several other people throughout the show to that point), but her death is straightforwardly a product of his inaction. We know Jane. We know what she means to Jesse. Walter’s lethal idleness hits us hard.
Breaking Bad doesn’t provide direct retribution for Walter’s actions for many, many episodes. But in the episode immediately following Jane’s death, it still tips its hand. Jane’s father works as an air traffic controller, and in his grief over her death, he gets sloppy. Two planes collide in midair. People die, and the debris from the crash rains down over Walter’s backyard. It’s as clear a sign imaginable from the gods — a.k.a. the storytellers — that Walter’s sins are considerable, and he is going to pay for them. Maybe just not yet.
A lack of story karma can make a story deeply unsatisfying
/cdn.vox-cdn.com/assets/4887842/5dd8549d-db49-d0ad-a09c-7a61f603bc0a_BB_514_UC_0222_0264a.jpg)
AMC
Now, Breaking Bad is maybe the best-balanced TV series in history in terms of story karma. I don’t love that show in the way that some do, but it was always clear that its writers knew what was good, what was evil, and when a good motive might excuse an evil act. Most importantly, they knew that even if Walter’s original motives for cooking meth were pure — he wanted to provide for his family after his death — those motives didn’t absolve him of the horrible things he did.
Compare Breaking Bad to WandaVision, a series that seems trapped by its refusal to acknowledge its protagonist’s culpability in events beyond having her feel really bad about what she did, you guys. The loss of her husband and children, which should theoretically offset her karmic ledger, doesn’t hit as hard because it’s a direct consequence of her immoral actions. Sure, she’s sad, but that loss is an offshoot of her original sin.
What many WandaVision viewers are waiting for is that plane crash in the sky, that reassurance from the show’s storytellers that they know what she did was just that awful. In that case, Wanda could get away with far worse, and we’d all breathe easier, knowing that somebody somewhere had their eye on the scales of justice.
In saying this, I’m aware of how easy it would be to interpret all of the above as “A character has to pay for their bad actions somewhere down the line, ideally pretty soon after they commit those actions.” But I don’t mean that at all. The Sopranos spent season after season allowing Tony to chalk up an ever-increasing moral debt that it never, ever bothered to collect on.
Yet it was incredibly clear throughout that The Sopranos’ writers knew just how bad the guy could be, and they nodded, frequently, to something we all know to be true: Sometimes, horrible people get away with stuff. What’s more, they tied Tony’s awfulness to the smaller, pettier sins any of us commit in our lives, when our selfishness or envy blinds us to the harm we cause to others.
Where our tales of the fantastical, particularly superhero tales, fall short is in their frequent struggle to understand that even if their stories involve larger-than-life characters and situations, the moral framework we expect them to exist within is basically the same as our own. The further we get into the Marvel Cinematic Universe, however, the harder it becomes to ignore the way it nurtures a near-fascistic sense that a powerful being should be allowed to do what they want, so long as they feel kinda bad about the collateral damage at the end of the day.
Mistaking (what the protagonist assumes to be) good motivations for good actions is perhaps the most deeply American thing about Marvel’s cinematic storytelling, and they’ve proved wildly popular worldwide, because all of us can twist any given bad thing we do into a good thing if we think hard enough about all of the reasons we might have done it that aren’t motivated by our own worst qualities. Wanda Maximoff lived under the weight of considerable grief, and in that grief, she did something awful. We’ve all had some version of that in our lives. But that doesn’t excuse our bad actions amid that grief.
That’s why WandaVision’s finale made me finally give up on the idea of the MCU ever understanding the stories it’s trying to tell beyond the most superficial level. Many of these movies are entertaining, but beyond Black Panther (which at least tries to wrestle with the weight of colonialism and the ways in which the affluent have responsibilities to those without) and Guardians of the Galaxy, Vol. 2 (which has a go at talking about legacies of familial abuse), none of them do more than pay lip service to complicated ideas.
Most of us are first introduced to stories as simple tales of moral instruction, in which our parents and teachers tell us tales meant to provide us with a firm understanding of what is right and what is wrong. As we grow, we understand that not all stories have to have tidy morals at the end, but we never quite lose the sense that stories have a moral dimension. When we hear a story, we don’t always need its gods to be just, but we do want to know they exist.
“The issue of policing is really complex, and in Chinatown, we are an ideologically diverse group of people.”
If one thing was made clear last year, it’s that American policing is a deeply flawed institution. Protests over racism and the police killings of Black Americans have fueled efforts to shift funding away from law enforcement and toward social services like mental health care and education. Cities across the country are now grappling with what the function of police should be as they consider the future of public safety. And many communities, including Asian American ones that have been targeted with violent attacks in recent weeks, are among those navigating tough questions about the role of law enforcement.
California’s Bay Area has seen a wave of violence toward Asian Americans this past winter. In Oakland, the Chinatown Chamber of Commerce has documented at least 20 assaults. And in the Bay Area overall, there have been 32 reports of Asian Americans getting assaulted or robbed since the start of the year, according to a February analysis by the San Francisco Chronicle. The motivations behind many of these attacks are currently unclear, though they’ve taken place as anti-Asian incidents have surged during the pandemic. According to a study by Cal State San Bernardino, San Francisco was one of the cities that observed an increase in reports of hate crimes toward Asian Americans in the past year.
The community response to the recent attacks has been varied: Some in the Bay Area have called for more police presence, some have hired private security, and others have pushed for public safety interventions that don’t center law enforcement.
All parties, ultimately, share a similar goal: They want to prevent more violence from happening in their community, and to keep their most vulnerable populations safe. Where they differ, however, is on just how involved the police need to be in this response, and the concerns about relying on law enforcement as the main solution to this problem.
“The issue of policing is really complex, and in Chinatown, we are an ideologically diverse group of people,” says Ener Chiu, associate director of the East Bay Asian Local Development Corporation, a group that’s part of the Oakland Chinatown Coalition. “There are people who support defunding the police. And there are people who say, ‘I don’t feel comfortable saying we need less police.’”
Such discussions are taking place not just in the Bay Area but in a number of cities, including New York and Los Angeles, as they also deal with an uptick in anti-Asian incidents. Physical and verbal assaults have spiked as Asian Americans have been scapegoated for the spread of the coronavirus in the past year, and as former President Donald Trump has stoked xenophobic sentiments.
According to Stop AAPI Hate, a group that’s been tracking such issues, there have been more than 2,500 anti-Asian incidents ranging from verbal assaults to physical attacks reported since last March, with 1,100 of those occurring in California. The Cal State San Bernardino study, which examined police logs in 16 major cities, found a nearly 150 percent increase in anti-Asian hate crimes nationwide in 2020 as well.
Community members in both San Francisco and Oakland are now working to figure out what comes next. In the near term, there’s a debate about how to make people feel more secure, and in the long term, there’s a question of how the community can invest in efforts that help prevent these attacks from happening again.
A conversation about policing is a key piece of these talks. And a tension at the heart of it is the immediacy in security that some people see police providing versus the belief that increased police presence not only doesn’t address the root cause of the violence but also endangers members of the community, particularly Black Americans, who’ve disproportionately been the targets of police brutality.
Responses to violence against Asians + Asian Americans can’t be to create a police state in Chinatown.
— connie wun, phd (@conniewunphd) February 9, 2021
There are now private security guards, vigilantes, + mobile police stations in our neighborhood.
That doesn’t make us safe. Our communities working in solidarity keep us safe