From the category archives:


Fighting for Food-Truck Freedom

by Jacob Huebert on August 18, 2012
in Economics, Law, U.S. Constitution

My colleagues and I at the Liberty Justice Center recently filed a lawsuit against the City of Evanston, Illinois to challenge the city’s food-truck law, which says that you can only operate a food truck in Evanston if you also own a brick-and-mortar restaurant there.  Obviously, that rule serves just one purpose: to protect restaurants from competition.

Watch the video about our client, Beavers Coffee + Donuts, and the case:

You can also read about the case in the Chicago Tribune and the Chicago Sun-Times. And here’s the Complaint filed in the Cook County Circuit Court.

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Talking About ObamaCare on WMAY Radio

by Jacob Huebert on July 1, 2012
in Law, Media, U.S. Constitution

Today I talked about ObamaCare with liberty-friendly radio host Greg Bishop on WMAY radio in Springfield, Illinois. We talked about the individual mandate and the so-called “tax” it imposes, but we also focused on the relatively overlooked provision of ObamaCare — which the Supreme Court partially struck down — that would have forced states to greatly expand their Medicaid programs to cover many more people.

Jacob Huebert on Saturday Session with Greg Bishop 6.30.12

The Medicaid expansion would not only harm taxpayers at the state and federal levels, it also would hurt the poorest people who currently depend on Medicaid by making it harder for them to get care as they compete for limited resources with all the new people in the system. In other words, the Medicaid mandate would cost taxpayers a lot, and it would hurt the people it’s supposedly intended to help. Fortunately, the Supreme Court said the federal government can’t make the states participate in this expansion, and in the interview we discuss why they can and should opt out.

I gave this interview on behalf of my employer, the Liberty Justice Center, a public-interest law firm that fights for liberty in the courts. As usual, the views I express otherwise on this website are my own, not necessarily those of any organization.

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Book Review: Liberty of Contract

by Jacob Huebert on June 28, 2012
in Law, U.S. Constitution

Last year saw the release of two books on the U.S. courts’ history of (not) protecting the liberty of contract: David Bernstein’s Rehabilitating Lochner and David N. Mayer’s Liberty of Contract: Rediscovering a Lost Constitutional Right.

My review of Bernstein’s book appeared in the Winter 2012 Independent Review; my review of Mayer’s book has just been published in The Freeman.

Which book is better? I couldn’t say. Both cover a lot of the same ground, and both are well-done. (Oddly, both were published at about the same time, and both appear to have been sponsored by the Cato Institute, though Bernstein’s book was published by the University of Chicago Press.) I recommend either or — if you really want to be an expert on all facets of New York v. Lochner and the courts’ inconsistent protection of economic liberty — both.

Here’s an excerpt from my Liberty of Contract review:

The U.S. Supreme Court has no coherent ideas about—or real respect for—individual rights. It generally allows governments to do whatever they want, with limited exceptions for a handful of rights it has deemed “fundamental,” such as the right to free speech (in some areas) and the right to sexual privacy (in some respects). Other rights, such as the right to economic liberty, receive almost no protection at all.

Why so much protection for some rights and so little for others? Because the Court has arbitrarily said so.

Libertarians, of course, think differently about rights. Libertarians think that our rights exist independently of government, and that if government has any legitimate purpose at all, it is to protect those preexisting rights.

Libertarians also think that all our rights are really property rights. We each own ourselves, and from that follows a right to own private property that we acquire through voluntary exchanges with others. Other rights, such as the right to free speech, derive from our right to use our own property as we see fit. And the right to economic liberty—that is, to trade your property and your labor freely with others—is just as “fundamental” as any other right.

In Liberty of Contract: Rediscovering a Lost Constitutional Right, law professor and historian David N. Mayer shows how Americans went from embracing the libertarian conception of rights reflected (imperfectly) in the Declaration of Independence to the statist conception of rights reflected in modern Supreme Court decisions.

Read the rest.

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I wrote a brief summary of why the ObamaCare individual mandate violates the Constitution for the Illinois Policy Institute’s blog. Here’s what I said:

On Tuesday, March 27, the U.S. Supreme Court will hear arguments on the most controversial part of ObamaCare: the “individual mandate,” which requires that everyone not otherwise covered purchase government-approved health insurance.

The government claims that the individual mandate is constitutional because it falls under Congress’s power to regulate interstate commerce. In an amicus brief filed by the Illinois Policy Institute and like-minded organizations across the country, we argue that the law is far outside Congress’s constitutional authority and must be struck down.

Supreme Court decisions since the New Deal era have held that the Commerce Clause allows Congress to regulate virtually any human activity that affects commerce. For example, in the notorious case of Wickard v. Filburn (1942), the Court decided that the federal government could penalize a farmer for growing wheat on his own land for his own personal use.Because Mr. Filburn grew his own wheat, he would buy less wheat from others, so the Court concluded that his actions affected the national market for wheat and were therefore subject to federal regulation.

Wickard was a gross abuse of the Commerce Clause.As Professor Randy Barnett has shown, in the founding era, “commerce” only referred to shipping and trade, and “regulate” meant “to make regular” – that is, to specify how an activity related to trade and shipping may be done. The Commerce Clause was never meant to allow regulation of all economic activity – but in the years since Wickard, that’s essentially what the Supreme Court has said.

Even so, the ObamaCare case is different from all cases that have come before, and the individual mandate should be struck down even if we accept (for the sake of argument) the Supreme Court’s decades of liberal precedents. Here, the government isn’t punishing an activity (like growing wheat); it’s punishing inactivity – people’s decision not to buy health insurance. The Supreme Court has never said that this is within Congress’s power.

In a sense, it’s true that people who decide not to buy insurance “affect” commerce: The markets for insurance and health care look at least slightly different than they would if those people decided to buy it.

The trouble is, if we accept that reasoning, it follows that Congress can force us to do virtually anything. When we choose to do a particular activity, we implicitly choose not to do the infinite other things we could be doing instead. By choosing not to do those things, we are, by the government’s logic, “affecting” commerce. And, by the government’s logic, the Commerce Clause gives Congress the power to force us to do any of those countless things we are choosing not to do. That means the government could force us to buy Chevy Volts or gym memberships, or could even force us to eat the foods it thinks are best.

That can’t be right. The Constitution’s framers intended the federal government to be one of limited, enumerated powers. If they had wanted to create the unlimited government that the Obama Administration seeks, the framers wouldn’t have given Congress just 18 specific powers, and they wouldn’t have made clear in the Tenth Amendment that all other governmental powers belong to the states.

So the ObamaCare case is important not just because of the huge harm the law would cause to people across Illinois and the nation; it’s important because the Court will have to decide whether the federal government will have any limits at all on its power in the 21st century.

As always, the views I express otherwise on this site are my own, not those of any organization.

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Fight for Entrepreneur’s Freedom Featured in Reason

by Jacob Huebert on March 19, 2012
in Law

Today Reason features a story by journalist Scott Reeder about the Liberty Justice Center’s case on behalf of a Bloomington, Illinois woman whose local government stopped her from opening her own vehicle-for-hire service. Here’s the preview:

Julie Crowe’s dream of starting her own business was stifled when a group of potential competitors pressured Bloomington City Hall not to give her a taxi license. In this small central-Illinois college town, Crowe perceived a need for the services she could provide driving drunken college students from downtown bars to dormitories, fraternities and sororities. Bloomington rejected Crowe’s request to add a 15-seat van to the city’s mix of cabs and buses after competitors said the market was saturated. While Crowe’s situation may seem unique, writes Scott Reeder, it’s a common predicament faced by folks wanting to enter the heavily regulated taxicab industry.

Read the whole thing.

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Competition or Cartel Control?

by Jacob Huebert on March 3, 2012
in Economics, Law

For the past six months, I have been working for the Liberty Justice Center, a new public-interest litigation center dedicated to advancing economic liberty. Here’s a short video on our first case, brought on behalf of a Bloomington, Illinois woman who was stopped from opening a vehicle-for-hire business based on nothing more than a city bureaucrat’s arbitrary command. The video tells our client’s story and explains why the licensing scheme we’re challenging — which resembles many others across the country — violates due process and makes no economic sense.

You can also read my article on the case from the Daily Caller and listen to a radio interview I did on the case with liberty-friendly Bloomington radio host Robert Rees.

Needless to say, the opinions I express on this website are my own and not necessarily those of any organization.

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Book Review: Rehabilitating Lochner

by Jacob Huebert on December 19, 2011
in Law, U.S. Constitution

In the Winter 2012 Independent Review, I review David Bernstein’s Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. Here’s how it starts:

Few Supreme Court cases receive more scorn in U.S. law schools than Lochner v. New York (198 U.S. 45), the 1905 decision that struck down a New York law limiting the number of hours that bakers could work as a violation of the Fourteenth Amendment’s Due Process Clause. It’s safe to say that most legal academics and judges today believe that the Lochner Court engaged in extraordinarily outrageous “judicial activism” motivated by a devotion to extreme libertarian ideology, big business, or both.

In Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, George Mason University law professor David Bernstein makes the case that the conventional view is wrong. He provides persuasive evidence that Lochner does not deserve to be singled out as an especially activist or offensive case and that Lochner’s Progressive critics were the real activists with a much more disturbing agenda.

Read the rest.

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Lawyers and “Gender-Neutral” Language

by Jacob Huebert on September 2, 2011
in Law

When writing legal briefs, should lawyers use “he” as an indefinite pronoun or something more politically correct, such as “he or she”? I’ve weighed in on this in the past, and the Above the Law legal blog quotes me in this post on the subject.

My view is that, unless you know a particular judge’s preference, you should use gender-neutral language regardless of your personal views. No judge is likely to be offended by gender-neutral language (especially if you do it in a careful way that doesn’t call attention to itself), but some may be offended by the use of “he” alone. Because your job as a lawyer is to win the case for your client — not to advance your own agenda regarding grammar, feminism, or political correctness — you need to do what is least likely to harm your client. So “he or she” it is.

There is, however, one exception: It is always okay to refer to a generic criminal defendant as “he.”

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Against the Law School Racket

by Jacob Huebert on July 22, 2011
in Law

Today the New York Times has a debate among legal scholars considering whether three years of law school, followed by the bar exam, should be required to enter the legal profession.

The best contribution is from libertarian George Leef, who argues that we should allow anyone to take the bar exam. As he points out, in the nineteenth and early twentieth centuries, most lawyers didn’t go to law school at all; they just apprenticed and learned how to practice law by working in a law firm. There’s no reason why this couldn’t be so now — except, of course, that the legal profession has been cartelized by the American Bar Association. Leef’s proposal would be an appropriate first step toward the libertarian ideal, which would not even require a bar exam.

Meanwhile, it’s funny to see law professors try to defend the status quo, arguing, almost in as many words, that students should be thrilled to pay $200,000 for three years of left-wing indoctrination and shouldn’t care so much about whether they’ll be able to practice law afterward — which probably they won’t be able to, at least not at a salary that comes anywhere near those of their privileged professors.

Cross-posted at the Mises Economics Blog.

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