November 21, 2012

Cato and IJ file brief supporting PLF's petition in milk price restriction lawsuit

By Cato and IJ file brief supporting PLF's petition in milk price restriction lawsuit

Our friends at the Cato Institute and the Institute for Justice filed this brief today in support of our cert. petition in the case of Hein Hettinga. The brief highlights the major problem with the D.C. Circuit’s expansion of the rational basis test: that if allowed to stand, it would present an impenetrable shield against constitutional challenges to discriminatory and unjust laws:

By weakening the rational basis requirement to an easily satisfied pleading hurdle for the government, the court of appeals removed any opportunity for a plaintiff to prove that a challenged law bears no rational relationship to any legitimate government interest. In other words, in precisely those situations where the judiciary’s oversight is most needed—where our democratic institutions have failed and factions have manipulated them for purely private gain—the D.C. Circuit has adopted a rule that, regardless of what the reality may be, even a fig leaf of an explanation offered by the government is enough to avoid judicial scrutiny.

To read more about the case, check out my op-ed published today in the Capital Press:

Hein Hettinga’s case is about far more than the regulation of dairies. It’s about the right to a fair hearing before the judiciary. If the government can checkmate a challenger simply by asserting that the targeted law is reasonable, without having to back up that claim with proof, then it will be practically impossible for entrepreneurs, property owners, employees, or consumers, to defend their constitutional rights against regulatory edicts.

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