Government

State Protectionism Isn’t ‘Rational’

Nov. 27, 2012 12:15pm

- Cato Institute

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was a special assistant/advisor to the Multi-National Force in Iraq on rule of law issues and practiced international, political, commercial, and antitrust litigation at Patton Boggs and Cleary Gottlieb. Shapiro has contributed to a variety of academic, popular, and professional publications, including the Wall Street Journal, Harvard Journal of Law & Public Policy, L.A. Times, USA Today, National Law Journal, Weekly Standard, New York Time Online, and National Review Online, and from 2004 to 2007 wrote the "Dispatches from Purple America" column for TCS Daily.com. He also regularly provides commentary for various media outlets, including CNN, Fox News, ABC, CBS, NBC, Univision and Telemundo, The Colbert Report, NPR, and American Public Media's Marketplace. Shapiro has provided testimony to Congress and state legislatures and, as coordinator of Cato's amicus brief program, filed more than 100 "friend of the court" briefs in federal courts around the country (more than 80 of those in the Supreme Court). He lectures regularly on behalf of the Federalist Society and other groups, is a member of the Legal Studies Institute's board of visitors at The Fund for American Studies, was an inaugural Washington Fellow at the National Review Institute, and has been an adjunct professor at the George Washington University Law School. Before entering private practice, Shapiro clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit, while living in Mississippi and traveling around the Deep South. He holds an A.B. from Princeton University, an M.Sc. from the London School of Economics, and a J.D. from the University of Chicago Law School (where he became a Tony Patiño Fellow). Shapiro is a member of the bars of New York, the District of Columbia, and the U.S. Supreme Court. He is a native speaker of English and Russian, is fluent in Spanish and French, and is proficient in Italian and Portuguese.

A large part of what is wrong with modern jurisprudence — the Obamacare ruling is Exhibit A — is that judges refuse to judge, instead bending over backwards to defer to legislative bodies. One egregious aspect of this egregious trend is to uphold economic regulations whenever there is some conceivable “rational basis” for their enactment, even if the measures clearly infringe liberties that that the Constitution was meant to protect, such as the right to earn an honest living,  Hettinga v. United States is such a case.

Hein and Ellen Hettinga are dairy farmers (“producers” under the law at issue) as well as processors and distributors of milk (“handlers”) doing business in Arizona and California.  Under a federal pricing and pooling arrangement spawned by milk market regulations put in during the New Deal, handlers must pay into a settlement fund designed to redistribute money to milk “producers.”

Two of the Hettingas’ dairy operations fell within exemptions from that arrangement until Congress enacted the Milk Regulatory Equity Act in 2005. The MREA revoked such exemptions for “large producer-handlers,” who were targeted for enjoying a significant competitive sales advantage over non-exempt handlers and for decreasing the values redistributed to producers under the pricing scheme.

The Hettingas challenged the constitutionality of the MREA, arguing that it constituted a bill of attainder and violated the Equal Protection and Due Process Clauses. The federal district court dismissed their complaint and the U.S. Court of Appeals for the D.C. Circuit affirmed that dismissal without requiring the government to demonstrate even a plausible justification for the revocation. Effectively, the courts transmogrified “rational basis review”—the last vestige of substantive scrutiny of economic regulations—into a mere pleading formality, obligating courts to dismiss any legal challenges if the government simply asserts that the regulation has a “rational relationship to a legitimate government interest.”

Cato has now filed an amicus brief urging the Supreme Court to take this case and establish clear guidance for the application of rational basis review. We argue that, properly applied, rational basis review preserves the judiciary’s role as guarantor of constitutional government and individual rights.

Protectionist regulations, which often masquerade as public-interest measures, benefit the powerful at the expense of politically weak and disfavored groups, like the Hettingas. Although substantive review of economic regulations has ebbed following the infamous Footnote Four from the 1938 case of Carolene Products, the Court has never adopted a rule of absolute deference to the political branches.

Yet absolute deference is precisely what happens when rational basis review is transformed into a mere pleading burden. The Framers recognized that an independent judiciary was necessary to prevent factions from usurping the political process and “disregarding the rights of another or the good of the whole.”

The Court should grant review and disavow such a dangerous abdication of the judiciary’s necessary role.

 

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