Supreme Court

The Supreme Court Should Tackle the Federal Government's "Naked Economic Favoritism"

A New Deal price-fixing scheme reaches the High Court. Will the justices take the case?

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Hein Hettinga

Hein Hettinga and his wife Ellen are Arizona-based dairy farmers currently fighting an uphill legal battle against a federal price-fixing scheme for milk that dates back to the New Deal. As I explained in my recent column on their case, the Hettingas have asked the Supreme Court to decide whether the lower court that ruled against them erred by simply taking the federal government at its word when it said the milk regulation in question was rationally related to a legitimate government interest. The Hettingas are asking the High Court for the opportunity to present their own evidence to rebut the government's assertion and demonstrate that the price-fixing law is little more than a protectionist scheme designed to benefit special interests.

Will the Supreme Court agree to take the case? It's still too soon to say, though the pressure is mounting. Last week, the Cato Institute and the Institute for Justice filed a joint friend of the court brief urging the justices to take a closer look at the government's "illegitimate economic protectionism" against the Hettingas. Here's a portion of that brief:

Wary of the problems of judicial imperialism, this Court has deferred to the policy judgments of the political branches and upheld economic regulation against constitutional challenge as long as it has some rational relationship to a legitimate government interest.  But it has never abdicated its responsibility to guard against naked economic favoritism.  The Constitution's guarantee of equal protection necessarily means that the courts should not allow the actions of the political branches to escape scrutiny when they extend special favors to one group to the detriment of another. …

The D.C. Circuit's decision is not only out-of-step with decisions from other courts of appeals, but it is also a dangerous abdication of the judiciary's obligation to ensure that our democratic institutions produce policies that reflect legitimate democratic choices and are not the result of a factional takeover.  Illegitimate economic protectionism is a serious problem in a whole host of areas where democratic processes have not worked as they should and government regulation is being used by powerful and entrenched interests to impose disproportionate burdens on the underprivileged and politically disfavored.  The Court should grant review to ensure that the judiciary remains an essential bulwark against this form of illegitimate government action.

Download the Cato/IJ brief here. Read more about Hettinga v. U.S. here.

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  1. Of course it’s related to a government interest! If they didn’t regulate milk prices, then milk prices would be unregulated! Can you imagine the horror?

    1. You joke, but this is literally the way they think. It’s scary.

      1. Someone might charge their customers less than another producer wants to charge!

      2. The argument was made to me over the weekend, that we can’t cut farm subsidies because food prices would then rise. And no, we can’t cut taxes by the same amount, because something, something, rich people, something.

        1. Envy is such a vile, disgusting emotion.

        2. What about the people who are subsidized to NOT farm? Most people tend to forget that our idiotic government does that as well.

          Well starving people in Africa and even here in the U.S., but we can’t have too many people growing staple food crops!

    2. Pennsylvania has a state minimum milk price. It may be the stupidest government policy I have ever heard of.

      Joining milk in this category is cigarettes, which makes me ask: who thinks milk and cigarettes should be regulated the same? SLD aside, of course.

      1. Maryland has a law banning too-inexpensive gasoline, because that would be unfair.

      2. Guys with join dairy and tobacco farms. Duh.

        1. joint

          Damn it! Give us an edit button!

        2. Sure, everyone flips out over caffeinated popcorn, but nicotinated milk is fine?

          1. It’s the rage.

    3. Damn, I must have a defective copy of the Constitution. I can’t find anything that says the Bill of Rights and strict limits on federal powers apply “except in the case that the government claims a legitimate government interest.”

      1. It’s in the General Welfare clause, the Necessary and Proper clause, and the Commerce Clause.

        1. It really is astonishing that they went through all this trouble to create checks and balances, and to limit the power of gov’t, only to give it a massive “do anything you want as long as it affects another state in any way, which is just about everything” escape clause like that.

          1. Madison was just fucking with us, all those limitations on power.

            PUNK’D BITCHEF!

          2. See, Jim, you have to start with the conclusion that the government can do anything, then work your way back. If the words make your case difficult, change their meaning. If that doesn’t work, attack the authors and their supporters. If that doesn’t work, chuck the whole business in favor of a dictatorship.

            1. I have, honest to god, gotten big-gov’t types to admit that the whole Commerce Clause thing doesn’t make a lick of sense when compared to the purpose of the document. However, they believe that it has been applied correctly.

              Basically, the Framers inexplicably added something very foolish with extremely sloppy wording, and they did, in fact, create a “do anything you want” clause because that’s what it says. If they didn’t want it to be used the way it’s being used, they should have worded it differently.

              I personally tend to think that they intended for it to keep states from putting tariffs on products from other states for protectionism purposes. Protectionism may have been accepted on the national level, but having it between the states would have retarded commerce significantly.

              I have to admit, the fact that intelligent people actually can read the thing and disagree about what exactly the thinking was there, means it probably could have been written more clearly.

              1. “Basically, the Framers inexplicably added something very foolish with extremely sloppy wording”

                With ~200 years of statist hacks posing as SCOTUS judges, discovering new ‘meaning’ whenever it’s convenient…it never really mattered what the document said…Reading the bones, makes about as much sense as some of the contortion acts that were SCOTUS decisions, but slightly less offensive to me because it would be slightly more genuine. I cannot in good conscience, lay all this horseshit we see before us on poor wording of our Constitution with that in mind.

              2. Jimbo, they’ve basic failing was that they didn’t think people in the future were going to be so eager to give away the freedoms that they fought for. Future Americans would be educated, liberty-minded folk who accepted the self-evident nature of naturally-derived negative rights.

                The Constitution should have been a much more defensive documents with thousands of more “shall not” phrases.

                1. They should’ve established a secret society of people to enforce the Constitution.

                2. Actually this would be a bad idea because it would give the impression that they can do whatever does not appear in those shall not phrases.

                  A better idea would have been a simple paragraph or two in article 3 noting that in all cases brought before the courts the law would be intrepreted in whichever manner granted the least power possible to the government and granting all citizens standing to sue the government for overstepping it’s constitutional bounds.

                3. Jimbo, they’ve basic failing was that they didn’t think people in the future were going to be so eager to give away the freedoms that they fought for. Future Americans would be educated, liberty-minded folk who accepted the self-evident nature of naturally-derived negative rights.

                  Then they were almost unbelievably naive.

  2. OT, WalMart-related:

    It has occurred to me that a lot of the anti-WalMart hysteria seems to be located in larger metropolitan areas (Chicago, Cleveland, Washington, DC). Could the hysteria be caused by the fear of the economic impact WalMart would have on legacy grocery stores in highly privileged markets?

    I live in north Alabama, near Muscle Shoals. While there were small grocery stores in the 1960s, but ANY measure, the Shoals region is vastly more wealthy and business growth is at an all time high compared to the 1960s. All this has occurred even while WalMart entered the region in the 1970s.

    And WalMart isn’t even the only game in town for grocery/retail. There is Publix, Target, Best Buy, Sears, JC Penny, Piggly Wiggly, Big Star.

    All I can say is that WalMart definitely hasn’t had a negative impact in my area, which is currently doing business at historic highs. Compare and contrast with larger and historically wealthier areas that seem fearful of letting WalMart set up shop.

    1. It’s utter nonsense from the beginning. Walmart is hardly wiping out all competition. We don’t go there regularly, even though there’s one not that far from us.

      1. Is it because you’re cutting spending?

        1. No, they’re increasing taxes on top 2% of trailer park residents.

          1. ProL doesn’t live in a trailer park! Just a trailer. And it’s a double-wide!

            1. On ten thousand acres of prime swampland.

              1. The duck call business treating you well too?

                1. That and robot bass lures. The cash just flows in.

      2. I go to mine sometimes, but only at the end of the month. RACIST.

        1. They’ve got cheap OJ. We go through orange juice at a high rate in my family. Under Florida law, we must consume a gallon every three days, per household.

          1. Are they checking Vitamin C levels, or just purchase history and/or empty bottles? How do they know we are consuming the necessary gallon? I haven’t had any scurvy tests done on me recently.

            1. The government can’t force you to eat your broccoli, but it can force you to buy it!

            2. I meant “consume” in the economic sense. You needn’t drink it.

          2. “They’ve got cheap OJ. We go through orange juice at a high rate in my family. Under Florida law”

            This is true, but what…you don’t have any orange trees in your yard?

            1. No, sadly. I grew up in a house with five citrus trees, but our property doesn’t have any. I do have bananas, however. Lots of them.

              1. I have about 6 of those goddammed grapefruit trees clogging my backyard with rotting fruit, but my orange trees died horribly, in a hurricane back in 2004….I miss them so.

                1. Ideally, one would have the full panoply–oranges, lemons, limes, grapefruit–but it never seems to work that way. We had four orange trees and a grapefruit tree when I was a kid. The oranges were great. The grapefruit were decent, but they were white and tart. So a lot rotted.

                  1. I occasionally make greyhounds (gin/grapefruit) with the (white) grapefruit, but usually I just have two tons of rotting grapefruit, (and mangos) in three different trash cans, my lemon tree has never produced, so I can only really speculate that it’s actually a lemon tree, or maybe a lime tree…who knows. It’s a crying assed shame about my orange trees, but the wood is very hard, and works well in my smoker.

    2. I was up at my parents for Thanksgiving (rural northern Vermont). People there have been dieing for a Walmart for about 15 years (since all the Ames closed). They’re sick of driving 70 miles to buy socks and underwear.

      Anyone want to guess why Walmart hasn’t addressed this eager market?

      1. See also – Detroit, MI (shocker, I know)

        I’ve lost count now of how many retailers/grocers they’ve run off because

        1)will ruin the neighborhood!!111! (seriously)
        2) white folks controlling da city!111!
        3) suburbanites controlling da city!11!! (see also #2)
        4) Evul kochporashunsz not payin dey respecks ta city gummint!11!
        5) There are others

        True story. Fuck Detroit.

        1. By my parents it is mostly #4. Even though everyone there wants it and is worse off for not having it, the zoning boards refuse to work with a department store.

    3. “Could the hysteria be caused by the fear of the economic impact WalMart would have on legacy grocery stores in highly privileged markets?”

      My opinion is that the majority of the ‘opposition’ is merely urban/rich snobbishness hiding behind a fig leaf of ‘concern’.

    4. Could the hysteria be caused by the fear of the economic impact WalMart would have on legacy grocery stores in highly privileged markets?

      Monkey County, MD responded to the UFCW’s demand with “Yes sir! Right away sir!”

      Giant Food and the UFCW managed to successfully get a law passed that banned any stores selling groceries in excess of 120,000 feet. It was known locally as the Walmart Law, being that they were the only company affected.

      Fuck Giant. They don’t get my money any longer.

      http://www.washingtonpost.com/…..Jun14.html

    5. It’s union goon stupidity, that’s all. That’s why it’s centered in the dying Northern union scum cities.

      1. Hey, congrats on doing the double his weekend – The Bucks PWN That School Up North, and the Brownies PWND Teh Yinzers.

        That’s cause to break out your good overalls and the boots without holes in them.

        1. Thanks to Bama’s Trent Richardson.

        2. 8 turnovers. AHAHAHAHAHAHAHAHAHAHA FUCK YOU PITTSBURGH

    6. Worse still, Wally World lacks labor unions, which prevents the workers from “claiming” the profits which belong to the owners/shareholders.

      At the peak of its power and influence in the 1950s, the United Auto Workers could claim a significant portion of GM’s earnings for its members.

      Walmart’s employees, by contrast, have no union to represent them. So they’ve had no means of getting much of the corporation’s earnings.

      It’s not about rights or fairness or living wage or benefits; it’s all about naked plunder.

      Robert Reich (yes, THAT Robert Reich)

      1. I’m unconvinced that the lack of a Walmart union indicates anything beyond an oversupply of low skilled labor. Unions are only viable when the supply of works is sufficiently small enough to make them difficult to replace.

        1. “Unions are only viable when the supply of works is sufficiently small enough to make them difficult to replace.”

          Well, that…and state and federal laws that wedge a corporation in, and force it to swallow any shit their unions choose to feed them. I seem to recall Boeing having some trouble like that.

          1. Someone should ask Bobby why it is that GMs totally fallen apart over the last 30 years. Gee, could it be that they can’t compete with foreign car manufacturers due to artificially inflated labor costs?

            That can’t be right. The unions wouldn’t let that happen.

      2. Question: Who is shorter, Robert Reich or Joe? Could Joe actually BE Robert Reich?

        1. Each is shorter than the other. It’s one of those logic-puzzle things. People like joey aren’t any good at them.

    7. I’ll even grant that WalMart benefits from corporate welfare. I don’t see how this should count against WalMart anymore than it does every other business in our current mixed-market set-up. Get rid of the corporate welfare, and if WalMart survives, it survives.

  3. Will the Supreme Court agree to take the case?

    I would be very surprised.

    The D.C. Circuit’s decision is not only out-of-step with decisions from other courts of appeals, but it is also a dangerous abdication of the judiciary’s obligation to ensure that our democratic institutions produce policies that reflect legitimate democratic choices and are not the result of a factional takeover.

    Aside from the difficulty of distinguishing “legitimate democratic choices” from “factional takeover”, especially in an entrenched two-party system where the democratic choice is limited to which faction will take over, there is this from J. Roberts:

    “It is not our job to protect the people from the consequences of their political choices.”

    “Those [policy] decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.”

    Those bits were in the part of the ObamaCare decision that was a full-blown opinion of the Court, I believe. Judicial obligation, abdicated.

    1. I believe this also falls under the “Good and Hard” clause.

    2. This nonsense started with Ollie Wendell Holmes Jr. It is not the role of the judiciary to defer to the legislature. The branches of the federal government are equal. The system of checks and balances was put in place so that any one branch could put the brakes on any other branch.

      1. Just more of the will-of-the-people crap from the turn of the 20th (in the U.S., that is–the concept is straight out of Rousseau).

    3. Those bits were in the part of the ObamaCare decision that was a full-blown opinion of the Court, I believe. Judicial obligation, abdicated.

      Definitely abidicated with Kelo.

      All you need is a “comprehensive plan” to take property, and the court will not consider nor evaluate the plan for its comprehensiveness.

      1. Definitely abidicated with Kelo.

    4. Yeah, I’m having a hard time coming up with a reason why a “factional takeover” can’t be a “legitimate democratic choice”.

      1. Oh joe, it’s cute that you think anyone gives a shit what drunk little midget like you thinks. How many phone books do you have to sit on to type on the computer?

        1. Is it joe or Sour Jane?

          1. It can be both.

          2. Well, I’m fairly sure that joe smells like sour milk and smegma, so yes.

            1. I’m fairly sure that joe smells like sour milk and smegma

              You write that as if it’s not normal.

      2. Not only that, but why “equal protection” couldn’t simply mean equal opp’ty to use gov’t to rob others to enrich oneself.

    5. “Those [policy] decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.”

      I asked someone the other day, why, when Congress’s approval rate is in the high 20s, low 30s, the reelection rate (in the House) was over 90% in 2012. The answer given was that the people who were elected as Tea Party candidates in 2010 weren’t up for reelection this year, but you watch, when 2014 rolls around, they’ll all be voted out. There’s just one little problem with that.

      1. Most people disapprove of Congress. Just not their Congressmen. It’s those damned Congressmen from the other states that are the problem. If those other states would get their act together and vote the bums out so our guys could get it right, then it’d be honky dory.

      2. I asked someone the other day, why, when Congress’s approval rate is in the high 20s, low 30s, the reelection rate (in the House) was over 90% in 2012. The answer given was that the people who were elected as Tea Party candidates in 2010 weren’t up for reelection this year

        Congrats, you may have actually met the dumbest motherfucker alive. Did this person even have a functioning brain? What the fuck? I don’t even…

        1. This is a really smart person who has fallen in with a bad intellectual crowd and gets info from bad sources.

        2. I was also informed that the official name for the PPACA was not “Obamacare,” as low-information voters ignorantly believe, but “The Health Care Reform Act.”

    6. “”It is not our job to protect the people from the consequences of their political choices.””

      That statement literaly made me vomit from anger……….no not really, but you get the point.

      “It is our job to protect the people’s rights from the consequences of their political rivals choices.”
      (Majority rules, minority rights)

      Much better now…

  4. Illegitimate economic protectionism

    Does that imply that there is a such thing as legitimate economic protectionism?

    1. You ask a legitimate question there, sarc

      1. I expected a legitimate answer, and all I got was that bastard! Fuck! Fuckity fuck fuck fuck!

        Check out what I got this weekend. Gonna have some fun this New Years!

        http://www.youtube.com/watch?v=7rN3oibx6y4

  5. Just stumbled across some serious John pron.

    View at your own risk.

    http://www.dailymail.co.uk/new…..-Cuba.html

    1. Cuban socialism: efficiently allocating food resources since 1959!

    2. Danza Voluminosa, which translates as Voluminous Dance, is currently putting on shows to sell-out crowds in the heart of the famous Caribbean island.

      So, Cubans are chubby chasers. Who knew?

      I mean, I knew they like big badonkadonks, but I didn’t realize they went for all out fatties.

    1. Who in Wisconsin doesn’t hunt? Outside of Madison, that is.

      1. People on diets?

        1. Nah, they just donate their kill to charity.

          1. Awww, that’s nice.

    2. The boogeyman that they’ve made of the milquetoast Ryan is amazing. In their partisan minds, that utterly boring guy literally becomes a monster. If Fred Rogers had said he was a Republican TEAM BLUE would say that Prince Friday was a rapist and Daniel Striped Tiger was serial killer.

    3. OMGZ!!!!111!!!elevntybillion!!!11!

      EVUL WOMYN HATING RETHUGLICAN PAUL RYAN LIKES TO HUNT AND NOW HE’S BRAINWASHING HIS OWN DAUGHTER INTO IT TOO OMGZFUCKINGZOD!!!11!

      To TEAM BLUE retards everywhere: get a fucking life.

    4. From the comments:

      She’s already a better hunter than Dick Cheney.

      C’mon. That’s funny.

      1. Ok, that’s a good one.

    5. The comments section leaves much to be desired.

  6. What’s the point of having this big huge behemoth of a government if you can’t engage in a little “Naked Economic Favoritism”? I mean come on, isn’t that what it’s all about? Rewarding cronies while ham-stringing their competition just gives government types such collosal* fucking chubbies.

    *This is, of course, a relative term. In absolute terms, it’s actually small pathetic fucking chubbies. Why else would someone be in the government except to compensate for their shortcomings.

    1. You might find this right up your alley.

      http://cafehayek.com/2012/11/q…..y-472.html

    2. I’m saying exactly what Loki’s saying, except not limiting it to big huge behemoth gov’ts, but even very small ones (which won’t, however, stay small) just starting out. Has any court ever repudiated the theory that among the proper fx of gov’t is plunder? And that democracy is pretty useless if it doesn’t imply the power to do so? To answer, “All this law does is make money for Y at the expense of X” with, “Yeah, so?”

  7. You can’t fight city hall.

  8. Dude makes al l kinds of sense man, WOw.

    http://www.Tru-Privacy.tk

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