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Supreme Court Case on Farmworker Protections Could End Up Harming All Regulation

A legion of well-funded right-wing think tanks is leading the charge to dismantle these protections.

A farmworker in a broccoli field on January 22, 2021, in Calexico, California.

The legacy of Cesar Chavez has been getting another look in recent months. In January, President Joe Biden placed a bust of the 20th-century labor leader in the Oval Office, giving journalists the opportunity to reexamine how Chavez fought for farmworkers, while commentators on social media noted that Chavez’s treatment of undocumented immigrants, at certain points during his life, complicates his image as a tireless champion of migrant laborers.

But a sinister reexamination of Chavez’s legacy is also happening. A California labor regulation that resulted from his campaigning is under threat from the Supreme Court at the urging of dark money-funded right-wing think tanks. On March 22, the court is scheduled to hear oral arguments in Cedar Point Nursery v. Hassid, giving justices the opportunity to undermine protections for farmworkers, alongside a wide range of regulations at every level of government all around the country: from other worker protections, to health and safety inspections, to rent control to civil rights laws.

In early 2017, when Donald Trump took office, one of his far right advisers, Steve Bannon, vowed to work toward the “deconstruction of the administrative state,” describing his promise as an all-out assault on the regulatory functions of government. With two-thirds of the Supreme Court appointed by Republicans and half of those appointed by Trump himself, Bannon’s dream could take a giant step toward reality if the Supreme Court rules in favor of the farm owners at the heart of Cedar Point Nursery. Such an outcome is likely. The litigation was dismissed by the Ninth Circuit Court of Appeals (after it was dismissed by a federal district court). By agreeing to hear the case, the Supreme Court could be signaling that enough justices are unhappy with the appellate court’s decision — and stand ready to overturn it.

From Agitation to Access

In 1975, then-Gov. Jerry Brown signed into law the California Agricultural Labor Relations Act (CALRA), legislation that sought to plug a loophole in the National Labor Relations Act (NLRA). The NLRA, which was signed into law during the Great Depression by President Franklin D. Roosevelt, granted legal protections to collective bargaining rights. But the law exempted farmworkers and domestic workers, who were mostly Black, to win support from Democratic lawmakers representing the Jim Crow South.

CALRA came into being after more than a decade of struggle led by the United Farm Workers (UFW), which was co-founded in 1962 by Chavez, fellow labor organizer Dolores Huerta and thousands of farmworkers. At first, UFW rejected legislative protection for collective bargaining, relying instead on strikes, boycotts, marches, and other forms of nonviolent resistance and direct action to bring farm owners to the table. But after a violent turf war waged against the UFW led by the International Brotherhood of Teamsters (which was a mobbed-up, management-friendly outfit at the time), Chavez and the UFW lobbied for, and won, legislative protections.

Still, CALRA alone wasn’t enough to guarantee California farmworkers the same privileges like those enshrined by the NLRA: the right to form a union, if authorized by a majority of company workers in secret ballot elections. Even with CALRA, it was difficult for union representatives to reach farmworkers to inform them of their rights. Most lived in employer-provided housing, often on the property of the farms they worked, and had to move from job to job with the harvest. In order to ensure that migrant farmworkers were aware of their rights under the new law, California regulators passed the Access Regulation, granting labor organizers three hours per day for 120 days of the year to talk with farmworkers about their rights at work, including their right to form a union to collectively bargain.

Even with these protections, in a state that produces one-seventh of the country’s total agricultural output, farm work in California and across the U.S. is still grueling, precarious and done by the most marginalized. According to UFW, almost half of all farmworkers in the U.S. (49 percent) are undocumented. The average farmworker has an eighth-grade education and the average farmworker’s family makes between $17,500 and $19,999 annually. Most farmworkers lack overtime and unemployment benefits, and are still dependent on their bosses for housing: something that makes them especially vulnerable to retaliation, should they raise concerns about pay or working conditions. This vulnerability is magnified by the agriculture industry’s increasing reliance on guest workers through the H-2A visa program, which grants foreign nationals temporary status tied to their employment. The number of H-2A visas granted by U.S. officials increased almost ten-fold in the last two decades: to 204,801 in 2019 from 30,201 in 2000.

Still, some growers and their friends at right-wing think tanks argue that the Access Regulation must be overturned by the courts. They claim that the rule violates a provision of the Fifth Amendment known as the Takings Clause, which holds that private property shall not “be taken for public use, without just compensation.” This is the basis for the case being made by the two growers litigating Cedar Point Nursery, the firm that the case is named after, and another company called Fowler Packing. If the Supreme Court accepts their argument in full, California will have to re-think its regime for granting protections to farmworkers. Regulators of all kinds at every level of government might have to follow suit.

The Right to Exclude

Despite the claims of the modern-day landed gentry, the Access Regulation barely gives union organizers free rein on private property. Constitutional law professor Michael Dorf calculated that it only affords organizers the right to speak with farmhands for 4 percent of an entire year. Union organizers also have to first register their intent to visit growers’ land with California agriculture labor regulators. And, as the AFL-CIO noted in court filings in favor of the regulation, growers have an opportunity to challenge planned visits “through a streamlined administrative procedure known as a ‘motion to deny access.’”

“Similarly, if a union representative, once on the property, violates the time, place, or manner restrictions on access contained in the regulation, the employer can obtain a cease-and-desist order and other sanctions,” the AFL-CIO noted. Penalties include the restriction of access “throughout the entire geographic region.”

But according to Cedar Point and Fowler Packing, even this sliver of access is a violation of their property rights on par with the seizure of land by the government to build a road or a railroad — classic examples of “takings” recognized by the courts. And they’re asking the Supreme Court to order the state of California to compensate them for these intrusions because, they argue, property rights give owners a sacred and unimpeachable “right to exclude” whomever they want.

“The taking of an easement deprives the property owners of the right to exclude trespassers from their property, a right that is ‘universally held to be a fundamental element of the property right,’” lawyers for the two companies claimed, citing the outcome of Kaiser Aetna v. The United States, a 1979 case about the federal government ordering private developers to grant public access to a marina built by the developers. “The right to exclude is too important to be left at the mercy of government officials who will inevitably seek as much public access as possible without paying for it,” the lawyers for Cedar Point and Fowler stated.

Supporting this crusade is a legion of well-funded right-wing think-tanks who filed friends of the court briefs (amici) on behalf of the two companies. One such think-tank, the Pelican Institute for Public Policy argued that the absolute right of property owners to exclude others is “fundamental,” claiming that it stretches back to ancient Rome and Mesopotamia. Likewise, the Koch-funded Americans for Prosperity said that, “the government cannot simply declare that one person’s property now belongs to someone else,” as if the Access Regulation was tantamount to land expropriation. The Mountain States Legal Foundation lamented that the Supreme Court hasn’t adopted a more reactionary approach to private property, even as the federal judiciary has been packed with right-wingers in recent years, insisting that “public use jurisprudence is an unfortunate relic of the Progressive Era that has managed to survive this Court’s return to a more originalist jurisprudence.” The organization also implored justices to ignore prior decisions on the matter by the court, a major no-no in the legal world, saying, “this Court cannot continue to shackle itself to ill-conceived precedents decided during times of American history where fidelity to the written constitution was much weaker than during the early Republic or today.” Meanwhile, the Institute for Legal Justice whined to SCOTUS that justices need to change the doctrine governing the Takings Clause because “[p]revailing on a regulatory taking claim” — the mere limitation of use on private property — “is difficult for property owners.”

If these arguments were to prevail, a wide range of regulations would be thrown into disarray. City, county and state governments filing amici on behalf of California noted that core government functions rely on access to private property against the will of its owners. “The right to exclude” must be disobeyed by regulators maintaining food safety, building codes, fire safety, pest control, water safety, child welfare, among other regulatory regimes. Laws mandating accommodations for disabled people could also be threatened, the Service Employees International Union warned in a separate amicus. Rent-control systems and laws forcing companies engaging in unfair labor practices to reinstate fired workers are also limitations of rights of exclusion, the UFW noted. And as the union co-founded by Chavez also pointed out, in 1964, the Supreme Court struck down a challenge of the Civil Rights Act brought by Atlanta motel owners claiming that the landmark law violated their right to exclude Black people from their property.

With implications far beyond California agriculture law, it’s no surprise that the aforementioned right-wing think-tanks are urging SCOTUS to rule on behalf of Cedar Point Nursery and Fowler Packing. As noted in an amicus filed by a group of Democratic senators, among the organizations’ donors are billionaires and well-known vehicles for rich anonymous donors seeking to advance the agenda of rent-seeking capitalists: DonorsTrust, Donors Capital Fund, the Lynde and Harry Bradley Foundation, the Charles Koch Foundation and the Sarah Scaife Foundation. Cedar Point and Fowler themselves have also been represented every step of this case by the Pacific Legal Foundation, whose donors include some of the same boosters of organizations filing amici on behalf of the two growers, including the Sarah Scaife Foundation, Donors Capital Fund, the Charles Koch Foundation and other organizations controlled by the billionaire industrialist. Some of these organizations, including Americans for Prosperity, spent heavily to lobby for the confirmation of all three Trump appointees on the Supreme Court: Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch.

“The Only Effective Way to Communicate”

Some organizations that have also received money from the aforementioned donors have set their aim slightly lower than those calling for an absolute right of exclusion. The most powerful corporate lobbying group in the country, the U.S. Chamber of Commerce, filed an amicus brief claiming that the right to exclude can only be infringed when business owners agree to licensing schemes. (The Chamber also spent large sums of money to lobby the Senate to confirm right-wing SCOTUS appointees.) The Cato Institute and the National Federation of Independent Businesses jointly insisted that property rights can only be violated without compensation when such violations “curtail harmful externalities.” Otherwise, they said, the right to exclude is crucial for protecting property owners from “mob rule or the dictates of a Leviathan state.”

These proposed rules might seem more reasonable than an absolute right of exclusion, but they would still undermine a staggering array of regulations. Eighteen city and county governments who filed an amicus opposing Cedar Point and Fowler insisted that regulators “should not be forced to adopt licensing schemes to implement reasonable regulations to protect the health, safety, and welfare of their residents.” The proposed exceptions to rights of exclusion, these governments remarked, “would invite, rather than avoid” arbitrary standards, which would pave the way for property owners to challenge basic regulations. “And even if courts reject these baseless and disruptive lawsuits, local governments would still be forced to shoulder substantial litigation costs,” the local officials said.

However, the so-called administrative state is left after Cedar Point Nursery, it’s likely that justices will rule in favor of the two growers — a result that would deal a blow to some of the most downtrodden workers in the western hemisphere by depriving them of perhaps their only source of information about their rights on the job. Those opposed to the Access Regulation claim that this assertion is anachronistic due to smartphone technology and the fact that many workers no longer live on farm properties. But even if workers don’t live where they work, they still live in housing provided by employers, and bus to and from work on their bosses’ dime.

“While the current version of the regulation allows access to these workers while they are waiting to be transported by bus to the workplace, it expressly bars any activity that would prevent these workers from getting on or off the bus,” the UFW noted in its amicus. “Nor does the Regulation require that the grower or farm labor contractor inform union organizers where and when employees get on the bus, much less allow them to ride the bus.”

As far as the smartphone claims go, the union noted that cell service is often spotty in rural California, and that data plans are prohibitively expensive to those making less than $20,000 per year. Also, it remarked, more than 117,000 migrant workers are “[I]ndigenous workers from Mexico who have limited formal educations and limited knowledge of both English and Spanish.” Some of the languages they speak, the UFW said, “do not even exist in written form.”

“The only effective way to communicate with these workers about their rights is in person, and the only practical means for union organizers to locate and meet with these farmworkers for such communications is to do so in the fields where the farmworkers are employed,” they said — which would explain why growers are so keen on killing the access regulation.

The fact that their efforts could wipe out regulatory functions at every level of government across the country only sweetens the deal for these land owners, their billionaire friends and those carrying water for the rich in the right-wing think tank world. It’s going to take more than a bust of Cesar Chavez in the Oval Office to thwart them.

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