Cedar Point Nursery v. Hassid: The United States Supreme Court’s Latest Pronouncement on Unconstitutional Takings

Terrence S. Welch Robert F. Brown by victor@cixxfive.com


In June, 2021, the U.S. Supreme Court issued its 6-3 decision in Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), wherein it held that a California law that provided union organizers limited access to agricultural worksites was a per se taking based upon the proposition that any governmental grant of physical access, no matter how time-limited or functionally constrained, constitutes a per se taking unless one of the Court’s articulated exceptions applies. Prior to this decision, the Supreme Court’s tests for determining whether a case involved a regulatory or physical taking were somewhat unclear, which resulted in lower courts having to glean the appropriate takings standard to apply from a vast array of takings jurisprudence. See Steven J. Eagle, The Four-Factor Penn Central Regulatory Takings Test, 118′ Pa. St. L. Rev. 601, 628 (2014) (arguing that discerning between the two “involves subtle determinations of the nature of the property involved”). This paper will review the Hassid decision, which acts both as a primer on takings law under the 5th Amendment, as well as an expansion of the per se physical takings doctrine

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