Why the Hettinga case is important

October 31, 2012 | By TIMOTHY SANDEFUR

Reason’s Damon Root, Instapundit’s Elizabeth Foley, and the Yuma Sun explain why our petition for certiorari in Hettinga v. United States is so important. The case is about more than the legality of federal price-fixing laws for dairies—awful as such laws are. No, this case is about whether people have the right to challenge the constitutionality of laws in the first place.

When you file a lawsuit, one of the first things the defendant can do to get rid of the case is to file a motion to dismiss, arguing that even if everything you say is true, you’re still not entitled to win—perhaps because you’re past the statute of limitations, or because you waived your rights in some way. If the judge grants such a motion, your case gets dismissed without you having any chance to collect evidence or call witnesses or anything. Lawyers often call this a 12(b)(6) motion, since that’s the number of the dismissal rule in the Federal Rules of Civil Procedure.

Things get complicated when you challenge the constitutionality of a law that restricts your economic freedom. Thanks to New Deal-era precedents, courts apply “rational basis scrutiny” to such laws—the lowest level of review, which is extremely biased toward the government. In such a case, you’re required to prove that the law is totally unreasonable. The government doesn’t have the burden of proof—you do. This “rational basis” rule has no foundation in the Constitution; it was devised for political reasons in the 1930s, and has remained ever since, prejudicing the courts against entrepreneurs and property owners, and undermining the promises of constitutional protection. And it does not just apply to cases involving the rights of business owners. In Romer v. Evans, for example, the Supreme Court said that laws that differentiate between gay people and straight people are also subject to the “rational basis” rule.

What the court did in the Hettingas’ case was to declare that when the government merely asserts that the law you’re challenging is rational, that’s enough to have the case thrown out on a 12(b)(6) motion—so that you get no chance to gather evidence and prove your allegations. If that is the way the system works, then the “rational basis” test will be not just an unfair presumption against you—it’ll become a trick where the government can snap its fingers and make a case go away.

Although the Hettingas sued to defend their right to sell milk at low prices, their case is important for far broader reasons: will entrepreneurs, business owners, and the many others whose rights are subject to the “rational basis” test have any chance to defend themselves against unconstitutional restrictions on their freedom?