Supreme Court Won’t Hear Challenge to Federal Milk Price-Fixing

In April 2012, libertarian-leaning Judge Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit caused a stir by voting to uphold a federal price-fixing scheme for milk while simultaneously railing against the Supreme Court precedents that, in her view, mandated this unfortunate outcome. Thanks to a series of rulings dating back to the New Deal, Brown explained, economic regulations are granted extreme deference by the judiciary, an approach known to lawyers as the rational-basis test. “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,” Brown wrote. In fact, she declared in conclusion, “Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.”

The case in question is known as Hettinga v. United States, and I am sorry to report that Judge Brown’s powerful complaints about the Supreme Court’s judicial surrender have gone unheeded. This morning the Supreme Court announced its refusal to hear the appeal filed by dairy farmer Hein Hettinga and his wife Ellen, who argue that the government’s price controls are not a legitimate health or safety regulation, but are instead a protectionist scheme designed to benefit certain large, politically-connected dairy firms.

The Hettingas have good reason to charge the government with malfeasance. As The Washington Post reported in 2006, “a coalition of giant milk companies and dairies, along with their congressional allies, decided to crush Hettinga's initiative. For three years, the milk lobby spent millions of dollars on lobbying and campaign contributions and made deals with lawmakers, including incoming Senate Majority Leader Harry M. Reid (D-Nev.).”

This lobbying paid off. As I explained in a recent column on the Hettinga case:

The result was the Milk Regulation Equity Act of 2005, which, among other things, imposed minimum milk pricing on all producer-handlers operating out of Arizona that distribute at least 3,000,000 pounds of fluid milk per month. Not coincidentally, [the Hettinga-owned] Sarah Farms is the only producer-handler in the entire state that fits that description. The 2005 law also imposed new minimum price rules on all handlers selling prepackaged milk in California—a provision that also applied to just one existing business, the Arizona-based bottling facility GH Dairy, which also happens to be owned and operated by the Hettingas.

Had the Supreme Court opted to hear the case rather than simply deferring to Congress, the justices might have considered whether such regulations truly serve the public interest. Thanks to the rubber-stamp nature of the rational-basis test, no such scrutiny will occur.

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  • Caleb Turberville||

    Wait, are you telling me that New Deal policy-theory can be easily manipulated to the benefit of private interests (assuming that wasn't the goal all along)?

  • Free Society||

    In Soviet Rational Basis Test, burden of proof is on you!

  • Jordan||

    Why the fuck is stare decisis given more deference than the Constitution?

  • WTF||

    Why the fuck is stare decisis given more deference than the Constitution?

    "Fuck you, that's why."

  • Caleb Turberville||

    The hubris of acaedemia: Precedent is more theoretical, and therefore, more "thoughtful." Picking up the damn Constitution and actually reading it is a crude matter, best suited for ignorant originalist buffoons.

  • Caleb Turberville||

    *And you know my explanation is correct because I used the less common Latin spelling.

  • John Henry||

    Why the fuck is stare decisis given more deference than the Constitution?

    Because saying your predecessors on the court were wrong is mean. If they could be wrong, you could also be wrong; and that calls into question the legitimacy of the court. And we can never do that.

  • sarcasmic||

    Because to go against precedent is to admit that maybe some decisions are wrong. It's the same reason why legislation may be amended, but repeal is never an option.

    Authority must never be questioned.

  • Randian||

    I see the Cynical-Idiot crowd already "answered" your question, so I doubt that my response would serve any real purpose.

  • sarcasmic||

    I doubt that my response would serve any real purpose

    *cough cough*

  • $park¥||

    I know, right?

  • Randian||

    If you two ladies are done being passive-aggressive, feel free to step up and speak your piece.

  • Free Society||

    What's passive-aggressive about sarcasm aimed at you directly?

  • John Henry||

    so I doubt that my response would serve any real purpose.

    It could be good for a laugh.

  • Randian||

    Courts are fundamentally conservative institutions, and have been as such since the country's inception. They understand better than most that living under unchanging laws is more important that 'getting it right'. And yes, there is legitimacy to consider, given that it underpins the Rule of Law in its entirety.

  • John Henry||

    I am actually aware of this. They do not want uncertainty in how laws should be interpreted, therefore they like precedence. Problem is they like that better than looking at the plain language of the document they are supposed to be protecting.

  • Randian||

    That's a sight better than your original response, though.

  • John Henry||

    That's a sight better than your original response, though.

    Probably because I have zero respect for the Supreme Court.

  • Heroic Mulatto||

    They do not want uncertainty in how laws should be interpreted, therefore they like precedence. Problem is they like that better than looking at the plain language of the document they are supposed to be protecting.

    Well, that's the common law tradition. And I still greatly prefer it to civil law with its inquisitorial courts and judge's fiat.

  • John Henry||

    Well, that's the common law tradition. And I still greatly prefer it to civil law with its inquisitorial courts and judge's fiat.

    Except that our laws are not common law. They are legislative law. And the courts are supposed to look at these legislative acts and see if they violate the Constitution. If they do, they should be struck down. The Supreme Court refuses to do this.

  • Heroic Mulatto||

    Except that our laws are not common law. They are legislative law.

    If you're talking de jure, unless you're writing from Louisiana, you're wrong.

  • John Henry||

    Common law, also known as case law or precedent, is law developed by judges through decisions of courts and similar tribunals, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch.

    Which do you think describes our current legal system? I say statute.

  • pmains||

    Because you have varying interpretations of the Constitution and because a court like Rogers' is subordinate to the Supreme Court. If Rogers wants to buck precedent, fine. But then the Supreme Court has the power to over-rule her. Even if they don't get to her case due to a busy docket, other judges with "living Constitution" temperaments can then point at Rogers and say, "see, she's imposing HER personal views about Constitutional law on the rest of us? Why can't we?" Maybe you think it couldn't get any worse, but I think it absolutely could get very ugly very quickly.

    I hear what you're saying, though. It really shouldn't have taken so damn long for the courts to acknowledge that the 2nd Amendment actually guarantees a right to bear arms.

  • some guy||

    I'm surprised justices are so willing to lean on precedent. It implies that these justices think they are actually dumber than their predecessors...

  • sarcasmic||

    They lean on precedent knowing that decisions they make will be treated the same way, even if they are wrong.

  • Robert||

    Or, as described by noted man of the world Lemuel Gulliver, they go by the law of precedents, which is the rule that what has been done once may be done again, so that everyone strives as quickly as possible to rob everyone else.

  • Robert||

    Because it's believed to be more important that people be able to arrange their affairs with maximum predictability as to how a judge will rule than that they arrange them according to a written constitution.

  • sarcasmic||

    Think of what would happen if milk was subject to regular market price fluctuations. I mean, the price would go up and down and stuff. Then producers would live in constant uncertainty, not knowing what price they will get for their milk. Think of how terrible that would be. So, so terrible.
    It is much more preferable that single moms have to pay more for the milk that they buy for their children because, well, because fuck you that's why.

  • WTF||

    If the milk market were not closely regulated by the government, why, there would be no milk! Why do you hate milk?

  • Whiterun Guard||

    Are you saying Sarc is lactose intolerant?

  • sarcasmic||

    Why do you hate milk?

    I don't necessarily hate it, I just don't agree with it. The lactose part anyway. Turns me into a gassy stinky bag if I'm lucky, and a diarrhea spewing gassy stink bag if I'm not.

  • WTF||

    sarc is an anti-lactite!

  • Whiterun Guard||

    Let me know when single moms get John Cougar Mellencamp and Willie Nelson to carry the flag for them. Until then, WOO FARMERS WOO.

  • Caleb Turberville||

    FarmAid was just the knee-jerk reaction of a bunch of old fogies who watched some New Wavers participate in BandAid and didn't want to be left looking like they didn't care about something.

  • nicole||

    Your obsession with single moms buying milk for their children is really othering toward DINKs who need it to make tea and artisanal mac & cheese.

  • Jordan||

    Only one-percenters eat artisanal mac & cheese!

  • Heroic Mulatto||

    A stone's throw away from the homestead is a restaurant that serves nothing but mac and cheese. Nothing. But.

    It's been in business for two years now.

  • ||

    We have one of those near me as well, good stuff too.

  • ||

    And its called "Jus' Mac"

  • EDG reppin' LBC||

    Thank god no one ever thought of creating a market where commodities could be bought for agreed upon prices now, to be delivered in the future. A market like that could reduce the likelihood of short-term price fluctuations, and allow both producers and consumers of the commodities could make more informed mid-term business decisions.

  • $park¥||

    Sounds like a load of hogwash.

  • some guy||

    He's a witch! Burn him!

  • Heroic Mulatto||

    That's dandified city slicker talk! You fixin' ta crucify us on a cross of gold, boy?

    EVERY MAN A KING!!!!

  • EDG reppin' LBC||

    Fun fact: The recording of Bryans's "Cross of Gold" speech was pressed and released by Gennett Records. Gennett was HQ'd in Richmond, Indiana. It was one of the early pioneers in recording jazz, blues, and gospel music by Black musicians. Ironically, at the time, the KKK was also HQ'd in Richmond, and Gennett recorded and released speeches, music, and other media for the KKK.

    The studios for Gennett were located in the Starr Piano factory in Richmond. The piano factory closed down around the same time my parents house was being built (1946-47), and the architect salvaged a lot of piano wood for use in the house. The entire house interior is wrapped in the most beautiful wood in the world.

  • Ted Levy||

    I don't understand Judge Brown's reasoning. Not her substantive reasoning, but her strategic reasoning. It seems that a judge can always rule "Yes, the rational basis test covers most everything, but NOT LITERALLY EVERYTHING, and in particular I don't think it covers THIS." Doing so would surely be a stronger impetus to have the Supreme Court pick the case for review, if that were her goal. Simply upholding the status quo while complaining about the status quo seems a weak reed to hang a desire for review on.

  • ||

    Or, what Ted said.

  • ||

    The "libertarian-leaning" judge should have forced SCOTUS's hand.

  • buybuydandavis||

    Crony capitalism marches on.

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