Remember Hettinga v. United States? Of course you do. Judge Janice Rogers Brown concurred to lambaste the Court’s entire economic liberty jurisprudence, and assail the fecklessness of the rational basis test (see my earlier posts here, here, and here).

Here’s a sip from her opinion, which considered the constitutionality of the Milk Regulatory Equity Act of 2005:

Once again, the government has thwarted the free market, and ultimately hurt consumers, to protect the economic interests of a powerful faction. Neither the legislators nor the lobbyists broke any positive laws to accomplish this result. It just seems like a crime. 

Many progressives would cry over that spilled milk.

Tim Sandefur at PLF has filed a petition for cert in Hettinga.

Today, we filed this petition for certiorari with the United States Supreme Court, asking the justices to review a case that severely restricts Americans’ right to challenge the constitutionality of laws. The case, Hettinga v. United States, began when Arizona dairy owners Hein and Ellen Hettinga sued over a federal law that targeted their business alone, in order to force them to stop charging low prices for milk. They argued that this law violated the Constitution by singling them out for disfavored treatment in a manner that wasn’t “rationally related to a legitimate government interest.”

That phrase is important because that “rational relationship” test is the test judges use to evaluate the constitutionality of laws that restrict the rights of business owners, property owners, and most other people—in fact, this test is applicable to all but a few constitutional cases. (Those that involve “fundamental” rights or “suspect” classifications are treated differently.)

But the Hettingas’ case took a turn when the federal government filed a motion to dismiss, and stated in its brief that the law at issue was “rational.” The government introduced no facts or testimony to support that assertion—it just claimed it. And that, the trial court said, was enough. It ruled that under the “rational relationship” test, a court can throw a case out whenever the government simply claims, prior to any evidence or fact-finding, that a law is rational. The Hettingas appealed, but three judges of the D.C. Circuit Court of Appeals affirmed that dismissal, declaring that the trial judge was allowed to “draw[] factual conclusions at the pleading stage,” and that if “the government provide[s] an explanation that is…only rational on its face,” a court can dismiss case without hearing any evidence.

Now, we’re asking the U.S. Supreme Court to take the case, to decide whether the “rational relationship” test goes that far.

Tim is also quoted in the Yuma Sun:

“This case is about more than restrictions on dairies and other businesses,” said Timothy Sandefur, a principal attorney with Pacific Legal Foundation, who represents the Hettingas. “This is about whether people challenging the constitutionality of any law can get a fair trial, or whether the government can just recite some magic words and make the case disappear.”

He continued: “The trial court said that the Hettingas were not even allowed to introduce evidence to prove their case — simply because the government said the law was constitutional. The government’s mere say-so was deemed sufficient. And that just cannot be right.”

This petition is a stretch for sure. I had some difficulty thinking of the last pure-economic liberty case the Supreme Court took that was not bundled together with another constitutional provision–such as the First Amendment, the Takings Clause, or perhaps some substantive due process case related to a fundamental right.

I gather the government will waive their response.