Cedar Point Nursery: Taking an Unprecedented Approach to the Right to Exclude

In 2021, in Cedar Point Nursery v. Hassid, the United States Supreme Court reshaped the importance of exclusion rights by deeming such rights to be the critical aspect of private property ownership. Consequently, the Court determined that any infringement upon this core exclusion right must automatically be a taking under the Fifth Amendment. This Note examines the development of judicial doctrine surrounding the Takings Clause and the basis for placing a significant value on the right to exclude. The Note then analyzes the Cedar Point decision and how the Court relied on precedent from the early twentieth century in Portsmouth Harbor Land & Hotel Co. v. United States (Portsmouth II). In Cedar Point, the Court ignored its prior holding in Portsmouth II, which focused on the government’s intent. Instead, the majority used Portsmouth II as justification for the holding that invasions and infringements on the right to exclude were the core factors in determining the existence of a per se taking. This Note argues that the reliance on prior cases for justification in expanding the per se takings category was misplaced, resulting in harmful limitations on necessary governmental regulation.