The Claremont Institute’s Center for Constitutional Jurisprudence has filed this friend of the court brief in support of our petition for certiorari in Hettinga v. United States. As the brief points out, this case involves one of the central problems that the Constitution’s authors sought to combat: anti-competitive legislation designed to protect businesses in some states against legitimate competition in other states. These trade barriers were endemic under the Articles of Confederation, and the Constitution sought to eliminate them by creating a single, sovereign free-trade zone throughout the United States. This principle has often been recognized in cases under the “dormant commerce clause,” but as the Court made clear in Metropolitan Insurance v. Ward and other cases, it’s every bit as much a concern under the Equal Protection Clause and other constitutional principles.
As the CCJ’s brief puts it,
For better or worse, Congress has decided to regulate almost every aspect of the agriculture industry. And, given the wide berth this Court has given to congressional regulation under the Commerce Clause, Congress has decided to regulate milk to almost command economy levels. But in doing so, Congress has carved out various geographic regions for special price treatment or ex-clusion from regulation altogether. This is exactly the type of regional protectionism that the Port Preference Clause and other provisions of the Constitution were designed to avoid. This Court has regularly invalidated State laws that impermissibly discriminate against interstate commerce, but it has been largely absent from enforcing that same non-discrimination norm against the federal government. A reinvigorated rational basis test, one that would at least put the government to its proof when the rationality of its discriminatory regulation is not obvious, would go a long way toward restoring the Constitution’s non-discrimination norm. This case presents a tremendous opportunity for this Court to take that step.