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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In Libertarianism Today, I mention that Charles and David Koch are “to this day” the Cato Institute’s “foremost patrons.” This obviously isn’t true now that the Kochs are suing the Cato Institute to take control of it, and apparently it hasn’t been true for a while. According to Cato scholar Jerry Taylor, the Kochs gave no money to Cato last year and have contributed only about four percent of Cato’s revenues over the past decade.

So a correction is in order, and there you have it.



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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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Debating Intellectual Property at Dayton Law School

by Jacob Huebert on February 22, 2012
in Appearances

Do we need copyrights and patents?  I’ll argue that we don’t in a debate sponsored by the Federalist Society at Dayton Law School on Monday, February 27, at 12:30 p.m.  Taking the other side will be Professor Sam Han.

The event is free and open to the public.



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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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Free Book Chapter: Libertarianism Is Antiwar

by Jacob Huebert on December 8, 2011
in Libertarianism Today, War

Another full chapter of Libertarianism Today is now online for free — this one on why libertarianism is antiwar.  This is my favorite chapter of the book, so I’m especially glad I could make it available through Antiwar.com.

Other parts of the book you can read for free online:



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Speaking in Portland on Freedom’s Future

by Jacob Huebert on November 5, 2011
in Appearances

On Saturday, November 19, I’ll be speaking at the annual Freedom Seminar in Portland, Oregon. This year’s theme is “Freedom’s Future.” My lecture topics are “Is There Hope for Liberty in Our Lifetime?” and “Ideas: Are They Property?”.

I’m honored to be sharing the bill with the heroic Jacob Hornberger, president of the Future of Freedom Foundation. He’ll be speaking on “Why Protection of Civil Liberties Matters” and “Economic Liberty: Key to Freedom.”

The event will run from 9:20 a.m. to 4:15 p.m. at the Crowne Plaza Hotel in Lake Oswego, just south of Portland. Get the full details and register here.



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George Leef reviews Libertarianism Today in the latest Freeman.



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