In 2021, in the case of Cedar Point Nursery v. Hassid, the United States Supreme Court’s right wing majority overturned long-standing precedent in a 6-3 decision that held that a California labor regulation allowing union representatives to visit private farmland constituted a per se violation of the Takings Clause of the Fifth Amendment. 

Since that ruling came down, right wing interests have sought to improperly expand that ruling through a dangerous legal theory that would potentially jeopardize housing and other protections for millions by challenging state and local governments’ abilities to regulate local housing markets and protect tenants. They argue that regulations of the landlord-tenant relationship should be considered per se takings requiring compensation, rather than applying a balancing test that has long been used for regulations of private property. As part of our work tracking and countering dangerous legal strategies by the far right that abuse the constitution and threaten to harm people and communities, Democracy Forward has stepped in as a counterweight to these dangerous arguments in cases around the country. 

In three different cases, Democracy Forward has represented broad coalitions in filing amicus briefs that make clear that arguments that certain housing stability programs violate the Fifth Amendment Takings Clause – and the takings clause of certain state constitutions – misapply the ruling in Cedar Point Nursery and run counter to decades of legal precedent and case law. 

Learn more about our work protecting housing stability and fighting against the expansion of Cedar Point Nursery v. Hassid below. 

Pakdel v. City and County of San Francisco 

In April 2022, we represented the Eviction Defense Collaborative, Housing Rights Committee of San Francisco, San Francisco Anti-Displacement Coalition, AIDS Legal Referral Panel, Alliance for Justice, Western Center on Law and Poverty, National Housing Law Project, and the Appleseed Foundation and affiliated Centers in four states in filing a brief in the U.S. District Court for the Northern District of California in Pakdel v. City and County of San Francisco urging the court to reject efforts to misapply the law and thus gut San Francisco’s Expedited Conversion Program, which protects vulnerable tenants from eviction following condo conversion.

In late October, the court ruled in the case and referred to our brief in its decision rejecting the application of Cedar Point Nursery to this context. The ruling is an important step forward in preventing the dangerous Cedar Point Nursery decision from being misused as a means to attack housing rights.

Gonzales v. Inslee and El Papel v. Seattle

On January 9, 2023, Democracy Forward represented the Appleseed Foundation, Alliance for Justice, and Western Center on Law and Poverty in a friend of the court brief submitted to the Supreme Court of the State of Washington in Gonzales v. Inslee. The brief urged the court to uphold a Court of Appeals ruling that Washington’s Eviction Moratorium in effect during the COVID-19 pandemic did not constitute a physical taking of private property under the Washington Constitution. 

Two federal courts – the Eastern District of Washington and the Western District of Washington – have already rejected arguments made by landlords that the Eviction Moratorium constitutes a physical taking.

Washington’s Eviction Moratorium, in effect from March 18, 2020, through June 30, 2021, was instituted by Governor Jay Inslee in the midst of the COVID-19 pandemic to save lives. It protected vulnerable people from COVID-19 and preserved valuable resources in combating the disease. Research has shown that unhoused people are at increased risk of contracting SARS-CoV-2 and of developing severe COVID-19 symptoms relative to housed people. 

The brief explains that state and local governments have a profound interest in ensuring housing stability, which is crucial not only to the health and welfare of individual tenants, but also to local economies. 

Those challenging the Eviction Moratorium in court argue that the Moratorium violates the Takings Clause of Washington’s State Constitution because it constitutes a physical taking of property without compensation.  Washington courts interpret that clause to be consistent with the analogous provision of the United States Constitution. Our brief details why the Eviction Moratorium is legal and does not constitute a physical taking of private property under federal (and, thus, Washington) law. Indeed, regulations of the landlord-tenant relationship – like the Eviction Moratorium – are a core and historically recognized power of local governments, and temporary restrictions on owners’ right to evict tenants have been upheld as non-takings for over a century. The United States Supreme Court “has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails.” Furthermore, the Ninth Circuit, which covers Washington, and courts across the country consistently reject property owners’ arguments that tenant-protective regulations constitute physical takings, and numerous courts have sustained other state and local governments’ eviction moratoriums during the ongoing COVID-19 pandemic.

The brief also explains why the Cedar Point Nursery decision supports the conclusion that the Eviction Moratorium does not constitute a physical taking.

On January 25, on behalf of a broad coalition including the Appleseed Foundation, Alliance for Justice, International Municipal Lawyers’ Association, Lawyers’ Committee for Civil Rights Under Law, National Housing Law Project, and Western Center on Law and Poverty, we filed a brief making similar arguments as those above in El Papel v. Seattle. Our brief urges the United States Court of Appeals for the Ninth Circuit to uphold the U.S. Court for the Western District of Washington’s ruling that Washington’s and Seattle’s eviction moratoria in effect during the COVID-19 pandemic did not constitute a physical taking of private property under the Fifth Amendment.