What’s Your Damage?! The Supreme Court Has Wrecked Temporary Takings Jurisprudence

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court unnecessarily expanded the Fifth Amendment’s Takings Clause. In doing so, the Court veered away from established precedent and overturned prior case law—without expressly admitting to doing so. In 2021, the Court held that a California law allowing union organizers to access private property under certain conditions took away a landowner’s right to exclude others and was (apparently) immediately compensable under the Fifth Amendment’s Takings Clause. Prior law had subjected temporary takings to an uncertain, unpopular, and ambiguous balancing test—but the Cedar Point holding turned temporary takings jurisprudence on its head by finding a per se taking in an ordinance allowing limited and temporary physical invasions.

In doing so, the Court left several questions unanswered, further muddied a murky area of the law, and likely invited a panoply of new lawsuits and varied legal opinions. The measure of damages and the remedy for a temporary taking are entirely unclear after Cedar Point—as this (rather important) issue was virtually ignored by the Court’s majority. Further, the Court never explained its departure from existing balancing tests or the need for a new per se test. This confusing decision has led to more lawsuits that allege a further expansion of takings law.