Sharing Economy

Uber's Lawsuit Against California's Anti-Freelancer Law Is Missing a Key Constitutional Element

It's crucial to get the constitutional text and history straight.


The ride-sharing company Uber and the food-delivery outfit Postmates, joined by two individual plaintiffs, filed a federal lawsuit last month challenging AB 5, California's strict new law regulating the so-called gig economy. Unfortunately, the suit neglected to include an important and necessary constitutional argument.

AB 5, as Reason's Elizabeth Nolan Brown has reported, was designed to force "companies like Uber and Postmates—along with any employer that relies heavily on independent contractors, freelancers, or consultants—to hire most workers as full-time employees and provide a range of benefits to their contingent workforces." The two companies, which launched the suit at the U.S. District Court for the Central District of California, Western Division, argue that this regulation deprives "workers of the flexibility and freedom of their current independent status, and instead [places] them under the authority, control, and direction of an employer." This, the suit maintains, violates both workers' and employers' "fundamental liberty to pursue their chosen work as independent service providers and technology companies in the on-demand economy."

Uber and Postmates are correct that the U.S. Constitution, properly understood, protects economic liberty against state infringement. But their suit fails to invoke the principal constitutional provision that does the protecting. Consider the language of the suit:

AB 5 violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, the Ninth Amendment to the United States Constitution, and the Contracts Clause of Article I of the United States Constitution, as well as the Equal Protection Clause, Inalienable Rights Clause, Due Process Clause, Baby Ninth Amendment, and Contracts Clause of the California Constitution.

Missing from this rather long list is the Privileges or Immunities Clause of the 14th Amendment, a provision which was both designed and originally understood to protect a broad range of fundamental rights from state abuse, including economic liberty. As then–Texas Supreme Court Justice Don Willett observed in a 2015 opinion, the 14th Amendment's record "is replete with indications that 'privileges or immunities' encompassed the right to earn a living free from unreasonable government intrusion."

Don't just take Willett's word for it. Take the word of Rep. John Bingham (R–Ohio), the principal author of the Privileges or Immunities Clause itself. "The provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States," Bingham told the House of Representatives in 1871, include "the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil."

It's nice to see Uber and Postmates championing the right to economic liberty in federal court. It would be even nicer if they included the most important constitutional support for that right.

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  1. I wonder if the Supreme Court will ever work up the courage to override Slaughterhouse. Big universe, lots of time, but my bet is the US Constitution will be discarded or mangled long before they right that wrong.

    1. I don’t know if RBG retires and Trump gets another judge on the bench. Especially if the judge were Don Willet. But I don’t know if Roberts or Alito would go along with it, might be too radical for them.

  2. The Slaughterhouse cases have not been overturned. Uber is just avoiding the appearance of wool-pulling. Don’t send Uber your legal invoice.

  3. Economic liberty? Like selling plastic straws, large soft drinks and providing plastic bags for customers?

    1. Yup. And how about when you buy a care when you live in one state, then three years later move to a different one, and that state informs you you cannot register it because it does not comply with California Smog Regs in effect in a certain year, starting several years prior to your purchasing the car new. The new state tells you that, though they recognise the car remains yours, that they in their infinite Whizz Dumbb will not permit you to register that car. Whatever happened to “make trade regular amongst the several states” as part of the job of COngress? ON, not THAT regular, they say…..

  4. Uber is no more a “ride-sharing” company than the taxis they’re competing with. It costs money to use their service, there’s no sharing involved.

    1. The driver’s car is being shared and thus the ride as well. It seems to me that taxis are also sharing. It’s a matter of definition of the term.

    2. the owner/driver of the Ubermobile IS sharing it.. he is sharing his use of it to gather groceries from the greengrocer, taking his kids to school, delivering his own company’s manufactured product, taking a weekend trip to some friends two states over, perhaps runing some rides whilst he is there too.

      Try any of that with a Yellow Cab. See the differences?

    3. Ok, fine. I’ll agree with you. Now, let’s remove the restrictions on taxis. That will level the playing field too.

  5. Uber has to go to court with the judges we have, not the judge we want to have. The conventional wisdom, as enforced by the Supreme Court, disfavors privileges and immunities claims of any kind, much less in economic-liberty cases.

    They could stick in a privileges and immunities argument if they want to preserve it for Supreme Court review – but that’s only if they expect to get that far. The lower courts will probably be shy about using such reasoning to strike down laws.

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  7. Don’t worry, if the privileges and immunities clause threatens to get in the way of government ambitions, I’m sure they’ll squint at it a little harder and decide all they see is an ink blot.

  8. Don’t worry, if the privileges and immunities clause threatens to get in the way of government ambitions, I’m sure they’ll squint at it a little harder and decide all they see is an ink blot!

    1. Especially if it gets in the way of the alleged right a gay man to shoot off in another man’s rear, which we know is the most important constitutional right known to man

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