Among the New Deal relics that persist today are federal dairy laws that restrict competition over milk prices. The Hettinga family, which owns two Arizona dairies, managed to lower prices through an exemption in the law, which ultimately led to the repeal of the exemption, and forced the Hettingas into the government-created dairy cartel.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, applying long-standing precedent, unanimously upheld the law. But Judge Janice Brown, who previously penned passionate pro-freedom opinions as a justice of the California Supreme Court, wrote a concurring opinion joined by Judge David Sentelle condemning the state of economic liberty jurisprudence.
The law, Judge Brown wrote, illustrates the “gap between the rhetoric of free markets and the reality of ubiquitous regulation.” The “ugly truth” is that “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.” The courts, Brown lamented, “have been negotiating the terms of the surrender since the 1930s,” removing “any check on the group interests that all too often control the democratic process.”
She’s right: if the courts fail to protect freedom of enterprise, then constitutional protections are not worth the paper on which they’re written. And by applying the so-called “rational basis” test—which requires neither a basis nor one that is rational—federal courts have upheld all manner of economic regulations. Bravo, Judge Janice Brown.
Here’s hoping the U.S. Supreme Court will hear the case and heed her wisdom.
U. S. District Court: Hettinga v. United States (PDF)
Wikipedia: Janice Brown
Amazon.com: Death Grip