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11 Dec, 2012

When is a desert a “water of the United States”?

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When the government says so.

19 Oct, 2012

Pacific Legal Foundation urges Supreme Court to give business owners their day in court

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Today, we filed this petition for certiorari with the United States Supreme Court, asking the justices to review a case that severely restricts Americans’ right to challenge the constitutionality of laws. The case, Hettinga v. United States, began when Arizona dairy owners Hein and Ellen Hettinga sued over a federal law that targeted their business alone, in order to force them to stop charging low prices for milk. They argued that this law violated the Constitution by singling them out for disfavored treatment in a manner that wasn’t “rationally related to a legitimate government interest.”

That phrase is important because that “rational relationship” test is the test judges use to evaluate the constitutionality of laws that restrict the rights of business owners, property owners, and most other people—in fact, this test is applicable to all but a few constitutional cases. (Those that involve “fundamental” rights or “suspect” classifications are treated differently.)

But the Hettingas’ case took a turn when the federal government filed a motion to dismiss, and stated in its brief that the law at issue was “rational.” The government introduced no facts or testimony to support that assertion—it just claimed it. And that, the trial court said, was enough. It ruled that under the “rational relationship” test, a court can throw a case out whenever the government simply claims, prior to any evidence or fact-finding, that a law is rational. The Hettingas appealed, but three judges of the D.C. Circuit Court of Appeals affirmed that dismissal, declaring that the trial judge was allowed to “draw[] factual conclusions at the pleading stage,” and that if “the government provide[s] an explanation that is…only rational on its face,” a court can dismiss case without hearing any evidence.

Now, we’re asking the U.S. Supreme Court to take the case, to decide whether the “rational relationship” test goes that far. […]

4 Oct, 2012

Challenging America’s most anti-competitive licensing law

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I filed a lawsuit this morning challenging the constitutionality of what may be the nation’s most restrictive “Certificiate of Necessity” law. You can read about the case at PLF Liberty Blog.

21 Aug, 2012

Fighting for economic liberty in Kentucky

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Meet R.J. Bruner and his crew. Bruner (in the middle, there) is one of the many hardworking entrepreneurs who keep our economy thriving—and whose hard work and ingenuity improve the standard of living for all of us. Of course, when he founded Wildcat Moving two years ago, he didn’t do it as an act […]

25 May, 2012

The founders and the primacy of liberty

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Prof. Samuelson has a thorough response to my post about John Adams and individual liberty. While it’s true I’m not a great admirer of Adams (I’m much fonder of his son), my point was not biographical or historical, but philosophical: democracy is an instrumental good, one that is valuable only insofar as it protects the primary value of individual liberty. As the Declaration of Independence makes clear, the individual’s right to freedom is primary, and government power is secondary. Liberty is what justifies and limits the power of the majority to make the rules. Where I disagree with Prof. Samuelson is in his apparent belief that the individual’s right to freedom should be considered equally valuable or equally justified as the right of the majority to govern. Not only is that wrong, it’s also contrary to the Declaration of Independence. […]

22 May, 2012

Should we ask permission for our rights?

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At the Liberty Law Blog, Prof. Richard Samuelson argues that John Adams’ defense of religious liberty offers a model for our own day. Adams refused to write Article III of the Massachusetts Constitution—which provided for an established church—because it was inconsistent with his belief in religious freedom. Instead, Samuelson writes, “Adams punted,” and left others to draft that article. And this teaches “an important lesson in democratic politics,” which “entails compromise…. In a democratic republic, the people will have their say. Constitutional politics takes time, but, as Adams realized, constitutional change is best secured when it is chosen, rather than forced upon the people.”

With all respect to Adams—who was certainly a great hero in American history—I have to disagree.


29 Apr, 2012

Paleo Diet Blogger Threatened With Jail Time

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Steve Cooksey is a former diabetic, who decided to start the popular “Paleo” diet. Not only did he lose weight, he became insulin free on the low carb, caveman diet. So he decided to share his success on his blog.  But Steve ran into a problem in the form of the North Carolina Board of Dietetics and Nutrition, […]

28 Jan, 2012

If You Read About Politics, You Should Read These Guys: Greenwald and Friedersdorf

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Between my first year of law school and two young children, I have really cut down on the amount of media I read in a given day. I tend to follow a pattern of checking the headlines at the New York Times, and then looking to see if any members of the Supreme Court press corps (mostly Adam Liptak, Mike Sacks and Dahlia Lithwick) have new pieces. If I have some free time (and if it’s not college football season), I then will read a little about politics.

I find that most political pieces are just that: political. Most political writers are so ideologically-driven that the pieces they write are mostly fluff–much like a Mitt Romney answer. And rarely will a political writer question the wisdom of a sitting President that they actually voted for. And if they do, they never do it in an election year.

I never quite understood why orthodoxy is more important than the general well being of the country, especially when you are an influential member of the media. Democrat and Republican is not a principle, and sometimes its not worth holding onto when the country is in a free-fall on some pretty fundamental issues. But digress do I.

So I recently discovered two writers who don’t just follow the mold of party ideologue; they break it. The first is Salon’s Glenn Greenwald. He is an admitted progressive. And yet, he challenges President Obama on civil liberties, war, cronyism, corporate influence, and government transparency. Better yet, he does it in an election year.

The other writer I really admire is Conor Friedersdorf over at The Atlantic. He has a libertarian bent, but it’s a pragmatic libertarianism (for example, he doesn’t oppose a basic social safety net or a progressive income tax). If he had a choice for President it, probably, would be Ron Paul. But like Greenwald, he too is willing to criticize his candidate in the midst of an election year.  […]

17 Jan, 2012

Defending the right to earn a living in Missouri

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Today Pacific Legal Foundation filed this motion in the case of St. Louis entrepreneur Michael Munie, asking the court to strike down a Missouri state law that essentially forbids anyone from going into the moving business without first getting permission from the existing moving companies. To be more precise, it’s illegal to run a moving company without getting a state license, but when you apply for a license, the Department of Transportation notifies the existing companies and gives them the chance to object. When they object, you’re required to go through an expensive, time-consuming hearing process to determine whether there’s a “public need” for a new moving company. Yet there’s no law or regulation that defines “need,” so the entire procedure becomes a roadblock in the way of hardworking people like Michael Munie, who only want an opportunity to run a business to support themselves and their families.

The facts in this case reveal an especially stark example of legislative protectionism.


14 Jan, 2012

The Police in L.A. at It Again

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