In December, the U.S. Department of labor closed the public-comment period for new regulations under the H-2A visa program. Among the more controversial parts of the regulations was a proposal to expand union access to certain agricultural worksites. Though some commenters objected that the proposal would effectively extract an uncompensated easement, the Department mostly ignored those concerns. Instead, it focused solely on expanding union access.

In that respect, it was not alone. Regulators at all levels of government have been pushing to expand union access to private property. Their goal has been to boost a labor movement that has only recently shown new signs of life. But in their haste, they have not only contradicted recent Supreme Court precedent, but also revived longstanding questions about the relationship between property and labor. And those questions could spark a conflict over the very structure of American labor law.

At first glance, the H-2A program seemed like an unlikely place for these questions to reemerge. The program allows agricultural growers to hire foreign workers when the domestic labor supply runs short. Workers hired under the program are exempt from the National Labor Relations Act. That means they have no federal statutory right to unionize or bargain collectively.

But the Department of Labor is aiming to change that. Under the Immigration Reform and Control Act, the Department has to certify that H-2A visas will not “adversely affect” domestic working conditions. The Department interprets that language to require “parity” between H-2A and domestic workers. And from that thin premise, the Department’s proposed regulations spin out a host of new union-organizing rules, including one that would give a union access to a grower’s property whenever the union is invited by a worker. The rules will also let the union enter the property on its own initiative for up to ten hours a month.

This proposal is perhaps the most aggressive recent attempt to expand union access. But it is hardly the only one. For example, in late 2022, the National Labor Relations Board issued Bexar County II, a decision involving workers employed by an on-site contractor. The Board held that a property owner can exclude contract workers only if it can prove that the workers will “substantially interfere” with its use of the property. In other words, the owner must give union organizers free access to its premises—even if they work for a different company.

Similar moves have been afoot at the state level. California, for one, recently expanded union access under the so-called Agricultural Labor Relations Voter Choice Act. In true Orwellian fashion, that law did away with most secret-ballot elections. Instead, it funneled union campaigns into a “card check” procedure, which locks the union in place whenever enough employees sign authorization cards. Elections are still possible, but only if an employer signs on to a “labor peace agreement.” And that agreement requires the employer to let union organizers onto its property to solicit the workers. In other words, to get a real election, the employer must waive its right to exclude.

This waiver mechanism was a direct response to 2021’s Cedar Point Nursery v. Hassid. There, the Supreme Court struck down a different California access law. The earlier law gave union organizers access to an employer’s property during fixed, 30-day periods. Even though these periods were limited, the Court concluded that the law effectively extracted an easement. An easement, of course, is a property interest. And under the Fifth Amendment’s Takings Clause, the government can take a property interest only when it pays “just compensation.” California offered no compensation. So the law was unconstitutional.

Cedar Point looms over these recent efforts to expand access. All of them—the H-2A regulations, Bexar County II, and California’s new law—seem to extract the same kind of easement Cedar Point found unlawful. That problem alone would be enough to question their wisdom, not to mention their legality. But each of them also raises more fundamental concerns. By cutting ever deeper into latent property rights, they revive longstanding questions about the proper relationship between property and labor law. And if those questions are followed to their logical end, they could shake labor law’s very foundations.

This basic problem was first stated by Professor Richard Epstein in his now-classic book, Takings. There, Epstein articulated a “classical” view of the Takings Clause. He argued that the clause was built on social-contract theory and common-law notions about property rights. The common law, he explained, saw property as a reserved right, retained by individuals unless surrendered to the state. It also defined property broadly. In the words of William Blackstone, property was the “absolute right . . . which consists in the free use, enjoyment, and disposal of all [one’s] acquisitions.”

Of course, if we define property that broadly, we find it quickly running into limitations imposed by the state. Consider the mundane example of setback requirements. When the state requires you to build your house a certain distance from the street, it limits your right to build on some part of your land. So too when it requires you to insure your car, recycle your paper, or leash your dog. Each of these requirements restricts your right to use your property as you see fit. Epstein saw each such restriction as a taking—a reduction, however slight, in the original bundle of property rights. And because every restriction was a taking, then most of what modern government did implicated the Fifth Amendment.

Epstein acknowledged that result. But he softened it by explaining that not every taking is compensable. Many takings can be justified as a way to limit negative externalities. At common law, no one had a right to use property in a way that injured another person. You had no right, for example, to build a noxious factory in the middle of a neighborhood. So when the government limited your ability to engage in harmful conduct, it took nothing from you. It eliminated a right you never had.

That theory more than justifies laws against, say, discharging chemicals into the local river. But it does nothing to justify modern labor law. Labor law limits property rights in a kaleidoscope of ways. It requires people to bargain through a third party (a union) even when they would prefer to bargain directly. It sometimes requires employers to hand over proprietary information. It often requires them to negotiate about fundamental decisions affecting the direction of their businesses. And of course, at times, it requires employers to give unions physical access to their property. It is difficult if not impossible to place the rights restricted by these rules in the category of the noxious factory—they don’t inherently infringe on the rights of others. Epstein saw such limitations as unjustified takings of property. And as unjustified takings, they required compensation.

That view dovetails with the Supreme Court’s conclusion in Cedar Point. Cedar Point recognized that union-access rules differed from other physical invasions of property, such as safety inspections. They could not be justified as a way to protect other people. Instead, they simply transferred a property interest from one private person to another. Epstein’s theory saw them the same way and would produce the same result.

But as Epstein showed, the same analysis applies not only to physical-access rules, but to nearly everything labor law does. Labor law transfers the right to make decisions about contracting, labor, and other voluntary exchanges—and such decision-making rights were treated as property under the common law. So if the common law is the right measure for takings, then most of labor law violates the Fifth Amendment.

That conclusion may seem dramatic. But sometimes, dramatic conclusions are the only reasonable ones. As regulators carve deeper and deeper into classical property rights, they lose all sense of balance. They forget that labor law was meant not to destroy property rights, but to preserve them. It was supposed to promote stability and peace—conditions that would benefit employers as well as workers. Yet that benefit is lost when the law becomes nothing but a way to transfer property from one person to another. The law no longer promotes the public interest by growing the pie; it carves the pie smaller and smaller to benefit entrenched factions.

Professor Epstein made that point more than forty years ago. Maybe now, having gone further than even he could have predicted, we will start to listen.  

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].