D. Dowd Muska


El Paso vs. Yvonne, Maria, Martha, and Michelle

April 21, 2011

A deeply held, yet wildly inaccurate myth spread by the unreflective Left is that business owners and executives -- no matter what product or service they sell, no matter how large or small their firms -- adamantly support a free market.

Run a company? Then you kneel before Adam Smith, and economic Darwinism is your credo. Heck, you probably own an Ayn Rand book or two!

Analysts who study tax and regulatory policies a bit more thoroughly than typical viewers of “The Rachel Maddow Show” understand that the businessman-as-free-marketeer theory has never been true.

The technical term is “rent seeking.” Entrepreneurs and corporations do it all the time.

The Economist defined rent seeking succinctly: “Cutting yourself a bigger slice of the cake rather than making the cake bigger.”

Domestic steel producers whine about cheap imports -- and win protections from Washington. Big Sugar lobbies to keep quotas on foreign competitors. GE backs expensive, scientifically indefensible “environmental” policies that line its shareholders’ pockets. State-administered license schemes limit the number of “professionals” allowed to offer services, thus driving up prices.

Researchers have uncovered so many examples of economic interests using government coercion to gain advantages, for serious people, the matter is settled: Businesses rarely support laissez-faire capitalism. When given the means and opportunity, most will boost the bottom line with unfair, if legal, tactics that tilt the playing field in their favor.

It’s a vicious truth unlearned by many Deep Thinkers in academia and inside the Beltway. For food-truck operators Yvonne Castaneda, Maria Robledo, Martha Avila, and Michelle Garcia, it’s daily life.

The ladies are challenging the City of El Paso’s outrageous policy of banning mobile meal vendors from parking within 1,000 feet of “food service establishments” and “food product establishments.” Yes, the protected businesses, defined in the city’s municipal code, include restaurants, supermarkets, and convenience stores.

As difficult as it may be to imagine, there’s more. Kitchens-on-wheels cannot “park and await customers,” they “may only park to serve customers who are already present and seeking the service of the mobile establishment.”

As rent-seeking goes, it doesn’t get much worse. Not only are vendors barred from a huge swath of the city, they’re required to be constantly on the move -- think of the “carbon footprint”! -- hoping to spot a customer willing to wave them down in a city-approved zone.

It’s madness. And as the Food Truck Four explain in their lawsuit, it’s unconstitutional. The Fourteenth Amendment’s due-process clause “protects every American’s right to pursue legitimate occupations, subject only to regulations that are rationally related to a legitimate government purpose.” For good measure, the plaintiffs threw in another Fourteenth Amendment claim, as well as an argument that the regulations violate the Texas constitution to boot.

Staring down the business end of a civil-rights lawsuit, on April 19, the El Paso City Council began to backpedal. It passed, on first reading, an elimination of the rent-seeking regs. Assuming it passes on second reading, food trucks will soon roll, unabated, throughout the Sun City.

It appears that El Paso isn’t interested in being the next New London. The small city in the northeast corner of Long Island Sound became the most despised municipality in America nearly six years ago. That’s when the U.S. Supreme Court approved the city’s “redevelopment” attack on homeowners in its Fort Trumbull neighborhood. The decision sparked a nationwide backlash against the use of eminent domain to benefit private interests. New London and the State of Connecticut remain unapologetic about their thuggery -- while the houses were demolished, the redevelopment imploded in predictable fashion -- but many state and local governments have adopted measures that protect land owners from rapacious “public-private partnerships.”

It was not lost on El Paso city councilors that the same public-interest foundation that litigated the New London case represents Yvonne, Maria, Martha, and Michelle. The Institute for Justice unites legal acumen with marketing genius -- by making millions of homeowners aware of what happened to the residents of Fort Trumbull, it is directly responsible for rolling back eminent domain run amok. Win or lose its case against El Paso, the Institute would have surely given the city a black eye to rival New London’s.

The Republic would be richer -- and less litigious -- if for-profit firms really did view economic freedom the way the Left’s lazy caricature would have us believe. Until then, gutsy clients and fearless attorneys will be needed to ensure that micromanaging pols and bully businesses aren’t permitted to curtail the blessings of competition.

D. Dowd Muska (www.dowdmuska.com) writes about government, economics, and technology. Follow him on Twitter @dowdmuska.

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