The splashy news out of the Supreme Court is the case of the cursing cheerleader, who won her First Amendment challenge against a Pennsylvania high school that suspended her from the junior varsity squad for posting a vulgar message on Snapchat. The bigger, more ominous news on Wednesday came in two cases that are a lot less sexy, as the court’s conservative majority continued its passion project: limiting the reach of government regulation and enhancing presidential authority over regulatory agencies.
The first case, Cedar Point Nursery v. Hassid, involved a California regulation that requires agricultural employers to allow union organizers onto their property to urge laborers to join the union. The regulation requires access for organizers three hours a day — before and after working hours, and at lunch time — for four months. Two growers filed suit to block the organizers, claiming that the regulation amounted to an unconstitutional “taking” of their private property.
Their legal stance was particularly aggressive — and it paid off with the conservative majority. The court has distinguished between two categories of “takings.” Physical takings — for instance, a New York law requiring landlords to let cable companies install boxes on their property — always constitute a taking and require payment of just compensation. So-called regulatory takings, such as zoning ordinances, are assessed under a more flexible standard, looking at the economic impact of the regulation and how much it interferes with property owners’ investment to see if the regulation goes too far.
The growers contended that the California regulation amounted to a physical taking, and the majority agreed. “The access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking,” Chief Justice John G. Roberts Jr. wrote for the six conservative justices. “Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude.”
The majority argued that, warnings to the contrary, the impact of its ruling would be limited. “Under this framework, government health and safety inspection regimes will generally not constitute takings,” Roberts wrote. But “generally” opens a potentially wide door here, one that invites corporate interests to push even harder. As the three liberal dissenters, in an opinion by Justice Stephen G. Breyer, observed, the ruling “threatens to make many ordinary forms of regulation unusually complex or impractical.”
The union regulation, Breyer noted, was designed to achieve “labor peace” between growers and farmworkers. “A landowner, of course, may deny the existence of these benefits,” he wrote, “but a landowner might do the same were a regulatory statute to permit brief access to verify proper preservation of wetlands or the habitat enjoyed by an endangered species or, for that matter, the safety of inspected meat.” Are those takings too?
The second case, Collins v. Yellen, may be even wonkier — and even more significant for the operations of the federal government. It involved the constitutionality of the Federal Housing Finance Agency, an independent agency set up in the aftermath of the 2008 housing crash to regulate mortgage companies Federal National Mortgage Association (Fannie Mae) and Federal Home Loan Mortgage Corporation (Freddie Mac). The agency is headed by a single director, who can be removed by the president only “for cause.” Shareholders aggrieved by the agency’s actions complained that the arrangement violated the constitutional separation of powers by infringing on presidential authority.
This is part of a long-standing assault by conservatives on what they consider the “headless fourth branch of government,” independent regulatory agencies. Last year, in a case called Seila Law LLC v. Consumer Financial Protection Bureau, the court ruled that the Consumer Financial Protection Bureau’s similar single-director structure was unconstitutional. “A straightforward application of our reasoning in Seila Law,” wrote Justice Samuel A. Alito Jr., “dictates the result here.”
Does it? Dissenting, Justice Sonia Sotomayor, joined by Breyer, noted that the Seila Law ruling took pains to differentiate the housing agency’s powers from the far broader authority wielded by the consumer bureau. Justice Elena Kagan said she was bound by the result in Seila Law to find the housing agency’s structure unconstitutional as well. But she took the opportunity to chide the majority for using the case to further enshrine its views on executive power and the supposed need for presidential removal power to ensure “electoral accountability.”
Instead, Kagan suggested, the court should butt out of telling Congress how to organize the agencies it creates. “The right way to ensure that government operates with ‘electoral accountability,’” she wrote, “is to lodge decisions about its structure with, well, ‘the branches accountable to the people.’”
And where the majority in Seila Law repeatedly emphasized that the Consumer Finance Protection Bureau exercises “significant executive power” in holding that the president should be able to remove its director at will, that limitation was absent from the latest ruling. On Wednesday, the court breezily asserted that the constitutionality of removal restrictions doesn’t actually hinge on what an agency does.
Which led to a final warning. “Fidelity to precedent also places demands on the winners,” Kagan wrote. “They must apply the Court’s precedents — limits and all — wherever they can, rather than widen them unnecessarily at the first opportunity.”
Good point. But when a liberal justice talks, a six-justice conservative majority doesn’t have to listen.
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