Elizabeth B. Prelogar, the Biden administration’s Acting Solicitor General, sent a letter to the Supreme Court last Friday notifying the Justices that the Department of Justice (DOJ) has reconsidered its position in a case challenging a California regulation granting union organizers limited access to growers’ private property to meet with farmworkers during non-work time. Previously, the DOJ had sided with the employers, via an amicus brief filed early last month, arguing that the law affects a per se taking of the farm petitioners’ property, and is therefore unconstitutional.
In the Feb. 12 letter, Prelogar wrote that the previously filed brief no longer represents the position of the United States. Under Supreme Court precedent, she explained, temporary limitations on physical occupations of private property are not per se violative of the Takings Clause, but are subject to a “balancing process.” In other words, “physical entry on property short of a permanent occupation does not warrant the application of a categorical rule and is instead appropriately analyzed under a case-specific framework,” in accordance with the DOJ’s long-standing position on such matters, the letter stated.
According to an OnLabor article by Nikita Rumsey published on Feb. 14, the impact of the government’s reversal remains to be seen. As previously noted by the news outlet, in an article by contributor Andrew Strom, the Supreme Court’s history with cases “pitting labor against capital” likely portends a result in favor of agribusiness interests. Yet, Strom commented, the court would be hard pressed to justify “such an ahistoric concept of Fifth Amendment rights.”
Oral argument is scheduled for Mar. 22.
