One Can Hope

My post today comes almost entirely from an opinion supporting the DC Circuit Court of Appeals’ opinion upholding a lower court ruling denying a dairy farmer’s objection to milk price regulation as applied to his farms.  From the per curiam (i.e., from the court itself—the majority opinion is unsigned, although dissents and concurrences, if they exist, are signed) opinion in Hettinga v United States comes the summary of the farmer’s beef:

Plaintiff-appellants Hein and Ellen Hettinga appeal the dismissal of their constitutional challenges to two provisions of the Milk Regulatory Equity Act of 2005 (“MREA”), Pub. L. No. 109-215, 120 Stat. 328 (2006) (codified at 7 U.S.C. § 608c). The Hettingas alleged that the provisions, which subjected certain large producer-handlers of milk to contribution requirements applicable to all milk handlers, constituted a bill of attainder and violated the Equal Protection and Due Process Clauses.

The Hettingas’ dairy farms were the only farms in the United States that were affected by the MREA; however, the Appellate Court upheld the application of MREA over the Hettingas’ constitutionally grounded objections.

From Circuit Judge Janice Rogers Brown’s, with whom Chief Judge David B Sentelle agreed (forced) concurrence:

…their consternation at being confronted with the gap between the rhetoric of free markets and the reality of ubiquitous regulation. The Hettingas’ collision with the MREA—the latest iteration of the venerable AMAA—reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

More from her opinion:

As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights.

The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions.

She adds [her emphasis]:

…the Constitution created the countermajoritarian difficulty in order to thwart more potent threats to the Republic: the political temptation to exploit the public appetite for other people’s money—either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.


As another court has noted, federal regulation of milk pricing “is premised on dissatisfaction with the results of competition.” Alto Dairy v. Veneman, 336 F.3d 560, 562 (7th Cir. 2003). “M]ilk price discrimination is intended to redistribute wealth from consumers to producers of milk.” Id.

In the end, Judge Brown is quite blunt:

Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.'”

Are we seeing a pattern begin to emerge?  Is not the Patient Protection and Affordable Care Act the outcome of a similar political temptation to…buy consent with a broad-based entitlement and subsidy?  Is not PPACA a similar attempt to redistribute wealth from healthy consumers to the unhealthy—or those who are timorous about their future after a lifetime of their own health-related choices?

And by extension is not all New Deal and later Commerce Clause regulation similar pandering and playing on dissatisfaction with competitive outcomes in order to preserve the status of incumbents?  After all, the Commerce Clause was intended to regularize the commerce of the several states among each other and to give Federal control over international trade.  And nothing more.

And Judge Brown also is right about the legal argument of “rational basis review.”  There’s nothing at all rational about it.  Arguments for or against any regulation, or any law, must proceed from how well that regulation or law preserves individual liberties and responsibilities, not from how well the regulation or law asserts dominance of any group over the individual.


h/t Power Line, and both a hat tip and a bow to DC Circuit Judge Janice Rogers Brown.

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