# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2011 Decided April 13, 2012

No. 11

- 5065

H EIN H ETTINGA
, ET AL
., A PPELLANTS

v.

U NITED S TATES OF A MERICA
, A PPELLEE

Appeal from the United States District Court for the District of Columbia (No. 1:06

- cv

- 01637)

Alfred W. Ricciardi argued the cause and filed the briefs for appellants.

Kelsi Brown Corkran , Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief

were Tony West , Assistant U.S. Attorney, and Michael S. Raab , Attorney. R. Craig Lawrence , Assistant U.S. Attorney, entered an

appearance.

Charles M. English Jr. was on the brief for amici curiae United Dairymen of Arizona, et al. in support of appellee.2

Bef ore: S ENTELLE
, Chief Judge

, B ROWN and G RIFFITH
, Circuit Judges

.
Opinion for the Court filed P ER C URIAM

.
Concurring opinion filed by Circuit Judge B ROWN
, w ith whom Chief Judge S ENTELLE joins

.
Concurring opinion filed by Circuit Judge G RIFFITH

.

P ER C URIAM : Plaintiff

- appellants Hein and Ellen Hettinga appeal the dismissal of their constitutional challenges to two provisions of the Milk Regulatory Equity Act of 2005 (“MREA”), Pub. L. No. 109

- 215, 120 Stat. 328 (2006) (codified at 7 U.S.C. § 608c). The Hettingas alleged that the provisions , which subjected certain large producer

- handlers of milk to contribution requirements applicable to all milk handlers, constituted a bill of attainder and violated the Equal Protection and Due Process Clauses. The district court disagreed, and w e affirm.

I

Milk markets in the United States are regulated by a complex system o f price control s dating back to the New Deal. The Agricultural Marketing Agreement Act of 1937, 7 U.S.C. §§ 601

– 74 (“AMAA”)

, authorizes the Secretary of Agriculture to issue regional milk marketing orders that govern payments from milk processors and dist ributors (“handlers”) to dairy farmers (“producers”). Id. § 608c(1 )

. Under a typical milk market order, a dairy farmer supplies raw milk to a proc essor or distributor , and the handler pays money into a centralized “producer settlement fund” at fixed prices based on the intended use of the milk. Edaleen Dairy3

LLC v. Johanns, 467 F.3d 778, 779

– 80 (D.C. Cir. 2006). Handlers using their milk for “high value” uses, such as fluid milk, pay higher prices than handlers that engage in “low

value” uses, such as the processing of butter or cheese. Id. The money that handlers pay into the producer settlement fund is then proportionally redistributed to milk producers at a uniform “blend price” based on quantity of milk sold. See 7 U.S.C. § 608c(5)(B)(ii). Th is system ensures that all dairy farmers receive the same price for their raw milk regardless of whether they sell to high

- value or low

- value handlers.

Firms that operate as both producers and handlers create serious complications for this system. In suc h cases, there is no opportunity for the producer

- handler to pay into the centralized producer settlement fund because there is no intermediate sale of raw milk. Edaleen Dairy, 467 F.3d at 780. Until recently, the Secretary of Agriculture therefore exempted producer

- handlers from the pricing and pooling requirements of federal milk marketing orders. Id

. The pricing and pooling requirements also did not apply to handlers who sold milk in geographic areas that were not regulated by federal milk mark eting orders, even if the handler itself was located in a federally

- regulated area.

The Hettingas own two dairy operations that fell within these exemptions. The first is Sarah Farms, an integrated producer

- handler located in Yuma, Arizona. Sarah Farms processes and sells over three million pounds of its own milk per month in the federally regulated Arizona Marketing Area

. The second is GH Dairy, an independent milk processing plant which they own in partnership with their son. GH Dairy, a handler loca ted in Arizona, processes raw milk into bottled milk and milk products that are sold exclusively in California. Because California is not a federally regulated4

milk marketing area, GH Dairy was not subject to the federal pricing and pooling requirem ents.

On February 24, 2006, the USDA adopted a Final Rule that would have eliminated the producer

- handler exemption for firms that operate in the Arizona and Pacific Northwest Marketing Areas and sell more than three million pounds of their own milk per month

— a group that includ es Sarah
Farms

. See Milk in the Pacific Northwest and Arizona

- Las Vegas Marketing Areas; Order Amending the Orders, 71 Fed. Reg. 9,430 (Feb. 24, 2006) (“USDA Rule”)

. The decision to eliminate the exemption for these large producer

- han dlers was based on evidence of “disorderly market ing conditions”

— specifically, that large producer

- handlers were obtaining a “competitive sales advantage” over fully

- regulated handlers, and were causing a “measurabl[e] and significant[]” decrease in the bl end price being paid to regulated producers. Milk in the Pacific Northwest and Arizona

- Las Vegas Marketing Areas; Final Decision on Proposed Amendments to Marketing Agreement and to Orders, 70 F ed. Reg. 74,166

, 74,186

– 88 (Dec. 14, 2005). The USDA Rule wa s scheduled to go into effect on April 1, 2006. The Hettingas filed suit in the U.S. District Court for the Northern District of Texas, challenging the legality of the USDA Rule and seeking a preliminary injunction. Oral arg ument was scheduled for March 29 , 2006.

On the day before the Texas district court heard arguments in the Hettingas’ case, Congress amended the AMAA by passing the MREA. 1

1 The Texas district court denied the Hettingas’ motion for a preliminary injunction against the USDA Rule, and the Hettingas

v oluntarily dismissed their case. See Compl. at ¶¶ 45

– 46. President Bush subsequently signed the MR EA into law on April 11, 2006. Subsection N5

of the MREA, 7 U.S.C. § 608c(5)(N), codified the USDA Rule’s revocation of the exemption for large producer

handlers in the Arizona Marketing Area , including Sarah
Farms . Unlike the USDA Rule, however, it applied neither to Nevada, which Congress exempted from coverag e by any federal milk marketing orders, nor to the Pacific Northwest Milk Marketing Area. Subsection M of the MREA

, i d. § 608c(5)(M), imposed the federal pricing and pooling requirements on handlers , like GH Dairy, that were located in a federally regulat ed area but sold packaged milk exclusively in a state not covered by a federal milk marketing order, such as California.

The Hettingas challenged the constitutionality of the MREA in the U.S. District Court for the District of Columbia. First, they allege d that Subsections M and N of the MREA violate the Bill of Attainder Clause by singling them out for legislative punishment. Compl. ¶¶ 53

– 57. Second, the Hettingas claim the MREA denies them equal protecti on by “singling them out for adverse treatment that is extended to no other producer

- handler in any other Milk Marketing Area.” Id. ¶ 65. Finally, they claim the MREA denied them due process of law by foreclosing judicial review of the USDA Rule in the Northern District of Texas. I d. ¶ 60. The district court initially dismissed the Hettingas’ claims for failure to exhaust administrative remedies, but this Court reversed and remanded, holding that the AMAA’s exhaustion requirements do not apply to facial constitutional challenges. Hettinga v. United States, 560 F.3d 498, 504

– 06 (D.C. Cir. 2009)

. On remand, the district court dismissed the Hettingas’ complaint for failure to state a claim u nder Fed. R. Civ. P. 12(b)(6) and denied leave to file a supplemental complaint. Hettinga v. United States, 770 F. Supp. 2d 51 (D.D.C. 2011).6

We review de novo a district court’s dismissal of a claim under Rule 12(b)(6). Atherton v. D ist

. of C olumbia Office of the Mayor, 567 F.3d 671, 681 (D.C. Cir. 2009)

. To survive a motion to dismiss, a complaint must have “facial plausibility,” meaning it must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S

. Ct. 1937, 1949 (2009). In evaluating a Rule 12(b)(6) motion, the Court must construe the complaint “in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.” Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979). Factual allegations, although assumed to be true, must still “be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But the Court need not accept inferenc es drawn by plaintiff if those inferences are not supported by the facts set out in the complaint, nor must the court accept legal conclusions cast as factual allegations. Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

II

Article I, Section 9, c l. 3 of the United States Constitution states that “[n]o Bill of Attainder or ex post facto law shall be passed.” A bill of a ttainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual withou t provision of the protections of a judicial trial. ” Foretich v. United States, 351 F.3d 1198, 1216 (D.C

. Cir. 2003). To constitute a bill of a ttainder, a statute must: (1) apply with specificity to affected persons; (2) impose punishment; and (3) assign guilt without a judicial trial. See Selecti ve Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 846

– 47 (1984).7

The element of specificity may be satisfied if the statute singles out a p erson or class by name or applies to “easily ascertainable members of a group.” Foretich, 351 F.3d at 1217. A bill of a ttainder need not expressly name its target; some bills of a ttainder simply describe them

. BellSouth Corp. v. FCC, 144 F.3d 58, 62 (D. C. Cir. 1998). The “easily ascertainable” requirement is only satisfied where the challenged statute “describe [ s ] [the targeted class] in terms of conduct which, because it is past conduct , operates only as a designation of particular persons.” Communist Party of the United States v. Sub versive Activities Control Bd.

, 367 U.S. 1, 86 (1960) (emphasis added). Indeed, the Supreme Court has recognized a “decisive distinction” between statutes that impermissibly punish past actions and those that permissibly address future conduct. Am. Commc’ns Ass’n, C.I.O. v. Douds, 339 U.S. 382, 413

– 14 (1950).

The MREA does not identify Sarah Farms, GH Dairy, or the Hettingas by name. Nonetheless, the Hettingas claim their businesses constitute an “easily ascertainable” group because they are currently the only producer

- handlers being regulated by the MREA. Specifically, Sarah Farms is currently the only producer

- handler that meets the three

- million

- pounds

- per

month threshold established by Subsection (N), and GH Dairy i s currently the only handler located with in the Arizona Marketing Area

— but outside of Nevada

— that sells exclusively in the California market. See Appellant’s Br. at 20

.
Longstanding Supreme Court precedent readily dispenses with this argument. A pplica bility of the MREA does not turn on the past conduct of producer

- handlers, but rather regulates these dairy operations’ future business decisions, such as the volume of milk they will produce and the markets into which they will sell their product. Moreover, the MREA would8

apply to any producer

- handler that meets its statutory requirements, not only the Hettingas. A statute with open

ended applicability, i.e.

, one that “attaches not to specified organizations but to described activities in which an organization may or may not engage,” does not single out a particular person or group for punishment. Communist Party, 367 U.S. at 8 6.

The Hettingas also argue that because the MREA currently applies only to their businesses, it must satisfy the specificity requirement. They further note that the designated category

— producer

- handlers that sell over 3 million gallons of milk per month

— is not a group susceptible to ready enlargement, as it has taken the Hettingas many years to grow their bu sinesses to their current scope

. See Appellant’s Br. at 24.

The Supreme Court has held , however, that even a statute that affects only one person d oes not necessarily apply with the requisite speci ficity to qualify as a bill of a ttainder. In Nixon v. Adm inistrator of General Service s , for example, the Supreme Court found no specificity in the Presidential Recordings and Materials Preservation Act, Pub. L. No. 93

- 526

, 88 Stat. 1695 (1974)

, even though Title I referred to President Nixon by name and dealt exclusively with his papers. 433 U.S. 425, 471

– 72 (1977). Because Title II was

open

- ended and could apply to future pre sidents, the statute

was no t a bill of a ttainder. Id. The Court cautioned that the President’s argument that “an individual or defined group is attain t ed whenever he or it is compelled to bear burdens which the individual or group dislikes” would “cripple the very process of legis lating, for any individual or group that is made the subject of adverse legislation can complain that the lawmakers could and should have defined the relevant affected class at a greater level of generality.” Id. at 470.9

Nixon makes clear that a curren t “class of one” does not necessarily satisfy the specificity requirement, and the Court has never suggested that the likelihood of future expansion of the designated class should pl ay any role in the specificity analysis. Much like Title II of the Presid ential Recordings and Materials Preservation Act, the MREA can theoretically apply to an unlimited number of handlers who meet its statutory requirements. “Since virtually all legislation operates by identifying the characteristics of the class benefited or burdened,” BellSouth Corp

. , 144 F.3d at 63 , the mere fact that the “class” currently happens to contain only one member does not transfor m an open

- ended statute into a bill of a ttainder.

The Hettingas also claim that the district court procedurally erred by determining whether the Hettingas were easily ascertainable a s the target of the legislation . While the Court is required to accept the truth of the plaintiffs’ factual allegations and to draw inferences in their favor

, it is not required to accept the plaintiffs’ legal conclusions. See Iqbal, 129 S.Ct. at 1949. Whether or not the Hettingas’ “identity as the target of the Congressional action is easily ascertainable,” Compl. at ¶ 48, is a legal conclusion, not a factual allegation. The sole factual allegations offered by the Hettingas establish

t hat Subsections M and N currently apply only to their businesses, id. , and that a few opponents of the legislation believed passage of the MR EA was driven by special interest groups who wanted to remove the Hettingas’ competitive advantage. See id. at ¶¶ 40

– 44. As explained above, these factual allegations simply do not satisfy the legal definition of an “easily ascertainable ” group, as defined by the Supreme Court and this Circuit.10

Because we find the MREA does not apply with

s pecificity to affected persons, we need not decide whether it satisfies either of the remaining elements of a bill of a ttainder. We therefore affirm the di strict court ’s dismissal of the Hettingas’ b ill of a ttainder claim.

III

We grant statutes involving economic policy a “strong presumption of validity. ” FCC v. Beach Commc’ns

, Inc., 508 U.S. 307

, 314 (1993)

. A statutory classification that “ neither proceeds along suspect lines nor infringes fun damental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 313

. “Where there are plausible reasons for Congress’ action, our inquiry is at an end. ” Id. at 313

– 14

. The challenger bears the burden of showing that the statute is not a rational means of advancing a legitimate government purpose.
See Bd. of Trs. of the U niv. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).

The district court dismissed the Hettingas’ equal protection claim because it found the MREA provides a rational means of ensur ing orderly milk markets by (1) preventing handlers located in regulated regi ons from gaining advantages over their competitors by exporting milk to unregulated regions and (2) preventing large producer

handlers in a federally

- regulated region from undercutting other handlers in that region with unregulated sales. On appeal, the Hettingas claim the district court applied too deferential a standard of review, arguing that rational ba sis review is “not [] toothless. ” Logan v. Zimmerman Brush Co.

, 455 U.S. 422, 439 (1982) (Blackmun, J., concurring)

.11

Regardless of how Justice Blackm un characterized rational basis review, the Supreme Court’s subsequent decisions in Beach make s clear that “ not toothless” does not mean “growling.” Here, the government provided a rational explanation for its decision to close two loopholes in the AMAA s cheme

— that large dairy businesses have used the exemption s to gain a substantial

— and ultimately disruptive

— competitive advantage over their regulated competitors. Beach requires us to accept this explanation and end our inquiry here. See Beach Commc’ns, 508 U.S. at 313

– 14. Although the classification might indeed be unfair to the Hettingas, mere disparity of treatment is not sufficient to state an equal protection violation.

The Hettingas reprise the claim that the district court erred by drawing fact ual conclusions at the pleading stage. Because the district court must accept their well

- pled facts as true, the Hettingas argue, the only questions are whether (1) plaintiffs have shown that there are separate groups subjected to disparate treatment; and (2) there are facts suggesting this disparate treatment “may not be rational, or is not for legitimate purposes.” Appellant’s Br. at 47 . In so arguing , the Hettingas again misstate the relevant legal standard. Even at the motion to dismiss stage, a plai ntiff alleging an equal protection violation must plead facts that establish that there is not “any reasonable conceivable state of facts that could provide a rational basis for the classification.” Dumaguin v. Sec’y of Health and Human Serv s., 28 F.3d 12 18, 1222 (D.C. Cir. 1994) . Here, the government provided a n explanation that is not only rational on its face, but also has been

con sistently recognized by the courts as legitimate. See, e.g., Nebbia v. New York, 291 U.S. 502, 529

– 37 (1934); Lamers Dairy, Inc. v. Dep’t of Agric., 379 F.3d 466, 473 (7th Cir. 2004); Shamrock Farms Co. v. Veneman, 146 F.3d 1177, 1183 (9th Cir. 1988).12

IV

The Hettingas claim that the MREA violate d their procedural rights under the Due Process Clause by foreclosin g judicial review of the USDA’s decision to implement the Final Rule. Specifically, the Complaint alleges that the MREA was passed in the House the night before oral argument on the Hettingas’ motion for a preliminary injunction in Hettinga v. Johanns ; an attorney for the government called the court’s attention to the passage of the MREA at the hearing; and the court subsequently denied the Hettingas’ motion for a preliminary injunction.

The Hettingas failed to plead the threshold requirement of a due pro cess claim: that the government has interfered with a cognizable liberty or property interest. Kentucky Dep’t of Corr s

. v. Thompson, 490 U.S. 454, 460 (1989). The Hettingas have no liberty or property interest in the regulatory status quo. The MREA does not implicate the Hettingas’ liberty interest in practicing their profession because the statute does not prevent them from operating their dairies; it merely subjects them to certain regulations if they choose to continue to operate under th eir current business model. The statute also does not implicate the Hettingas’ property interest in a cause of action, as the legislation did not actually terminate their ongoing claim against the USDA. Rather, the Hettingas themselves dismissed their st ill

- nascent claim because they believed the legislation rendered it moot. See Compl. at ¶¶ 45

– 46 . Moreover, Congress frequently enacts legislation that moots pending cases, and such action has never been found to raise any due process concerns.

V13

Final ly, we find that the district court did not abuse its discretion by refusing to allow the Hettingas to file a supplemental complaint. A district court may deny a motion to amend a complaint as futile if the proposed claim would not survive a motion to dis miss. James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). The Hettingas requested leave to supplement their claim with new allegations that arose from a political campaign commercial of Nevada Senator Harry Reid . The proposed amen dments would have been futile, because Senator Reid’s alleged support for the MREA does not support the Hettingas’ claims that they are the “easily ascertainable” targets of the MREA, that the statute inflicts legislative punishment without a trial, or tha t the statute violates their Equal Protection or Due Process rights.

For the foregoing reasons, the decision of the district court is
A ffirmed.B ROWN
, Circuit Judge

, with whom Chief Judge S ENTELLE joins, c oncurring : I agree fully with the court’s opinion. Given the long

- standing precedents in this area no other result is possible. Our precedents forced the Hettingas to make a difficult legal argument. No doubt they would have preferred a simpler one

— that the operation and production of their enterprises had been impermissibly collectivized

— but a long line of constitutional adjudication precluded that claim.

The Hettingas’ sense of ill

- usag e is understandable. So is their consternation at being confronted with the gap between the rhetoric of free markets and the reality of ubiquitous regulation. The Hetti ngas’ collision with the MREA

— the latest it eration of the venerable AMAA

— reveals an ug ly truth: 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. And the courts, from which the victims of burdensome regulatio n sought protection, have been negotiating the terms of surrender since the 1930s.

First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever

econom ic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictio ns on property rights only minimal review

. United States v. Carolene Products Co., 304 U.S. 144, 152

– 53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even2

improvident decisions will eventually be rectified by the democra tic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.

As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts

— at least to inquire whether its purpose and the means proposed are “within legislative power”

— would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so l ong as supposed public interest does not require their extinction.” 291 U.S. at 523. In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified mi nimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4.

Thus the Supreme Court decided ec onomic liberty was not a fundamental constitutional right, and decreed economic legislation must be upheld against an equal protection challenge “if there is any reasonably conceivable state of facts that could provide a rational basis” for it. FCC v. Bea ch Commc’ns, Inc., 508 U.S. 307, 313 (1993). See also Pac. States Box & Basket Co. v. White, 296 U.S. 176, 185

– 86 (1935); Steffan v. Perry, 41 F.3d 677, 684

– 85 (D.C. Cir. 1994) (en banc).

This standard is particularly troubling in light of the pessimist ic view of human nature that animated the Framing of the Constitution

— a worldview that the American polity and its political handmaidens have, unfortunately, shown to be largely justified. See James Madison, Notes of Debates in the Federal Convention of 1 787, at 39, 42 (W. W. Norton &3

Co. 1987). Moreover, what the Framers theorized about the destructive potential of factions (now known as special or group interests), experience has also shown to be true. The Federalist No. 10, at 78, 81 (James Madison) ( Clinton Rossiter ed., 1961). The judiciary has worried incessantly about the “countermajoritarian difficulty” when interpreting the Constitution. But the better view may be that the Constitution created the countermajoritarian difficulty in order to thwa rt more potent threats to the Republic: the political temptation to exploit the public ap petite for other people’s money

— either by buying consent with broad

- based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.

The Hettingas believe they are the victims of just suc h shenanigans. Compl. ¶¶ 40

– 45. And press accounts during the height of the controversy support the claim. See Dan Morgan, Sarah Cohe n , & Gilbert M. Gaul, “D airy Industry Crushed Innovator Who Bested Price

- Control System,” Wash. Post, Dec. 10, 2006, available at http://www.washingtonpost.com/wp

dyn/content/article/2006/12/09/AR2006120900925.html

. The Washington Post described Hein Hettinga as an America n

succ ess story. He emigrated to the U.S. after World War II and started as a hired hand. By 1990, Hettinga owned half a dozen dairies and decided to build his own bottling business. A Costco vice president showed reporters copies of an e

- mail he sent to Sena tor Reid during the legislative debate, explaining that Southern California purchasers of milk were the victims of “a brazen case of price gouging and profiteering by the strongest, largest market suppliers,” who turned a deaf ear to the company’s call for lower prices. Hein Hettinga changed all that. His arrangement with Costco “lowered the average price of milk by 20 cents a gallon4

overnight” until two senators, one from each party, pushed through the milk legislation at issue in this case.

Very littl e seems to have changed since the Supreme Court’s initial confrontation with the regulation of milk pricing in Nebbia

. T he state of New York

, respond ing to falling prices caused by the Great Depression, creat ed a Milk Control Board, which proposed to remedy weak demand by establishing a minimum price for milk, and making sale of milk at any lower price a crime. 291 U.S. at 515, 519. Leo Nebbia sold two quarts of milk and a five

- cent loaf of bread for eighteen cents, and was convicted of violating the board’s order. Id. at 515.

Even Justice McReynolds saw the irony. The law, he

sa id, “impose[d] direct and arbitrary burdens upon those already seriously impoverished” to give special benefits to others. Id. at 557. “To him with less than 9 cents it says: You cannot procure a quart of milk from the grocer although he is anxious to a ccept what you can pay and the demands of your household are urgent! A superabundance; but no child can purchase from a willing storekeeper below the figure appointed by three men at headquarters!” Id. at 557

– 58.

To be sure, the economic climate in which the New York legislature enacted the law at issue in Nebbia was truly dire, but 78 years later, the same tired trope about “disorderly market conduct” is still extant. T he Hettingas built their business on an exemption

— one that was profitable for them and beneficial for consumers

. The government ac knowledg ed that the decision to eliminate the exemption was based on evidence that large producer

- handlers were obtaining a “decisive competitive advantage” over fully

- regulated handlers, Appellees’ Br. at 7, an d were causing a measurable and “significant[]” decrease in the blend prices being paid to5

regulated handlers. See 70 Fed. Reg. 74,166, 74,186 (Dec. 14, 2005). As another court has noted, federal r egulation of milk pricing “ is premised on dissatisfaction with the results of competition.” Alto Dai ry v. Veneman, 336 F.3d 560, 562 (7th Cir. 2003). “[M]ilk price discrimination is intended to redistribute wealth from consumers to producers of milk.” Id. Once again, t he government has thwarted the free marke t , and ultimately hurt consumers, to protect the economic interests of a p owerful faction. Neither the legislators nor the lobbyist s broke any positive laws to accomplish this result. It just

seems like a crime

.
The judiciary justifies its reluctance to intervene by claiming incompetence

— apparently, j udges lack the acumen to recognize corruption , self

- interest, or arbitrariness in the economic realm

— or deferring to the majoritarian imperative.
But see The Federalist No. 78

, at 467 (Alexande r Hamilton) ( Clinton Rossiter ed., 1961). The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too oft en control the democratic process . It allows the legislature free rein to

su bjugat e the common good and individual liberty to the electoral calculus of politicians, the whim of majorities

, or the self

- interest of factions

. S ee Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).

The hope of correction at the ballot box is purely illusory. See generally Ilya Somin, Political Ignorance and the
Counter

- Majoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004). In an ea rlier century, H. L. Mencken offer ed a blunt assessment of that option : “[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” On Politics: A Carnival of Buncombe 331 (1996). And, as the Hettingas can attest, it’s no good hoping6

the process will heal itself. Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.’” Anthony De Jasay, The State 226 ( 1998 ). The difficulty of ass essing net benefits and burdens makes the idea of public choice oxymoronic. See id.

at 248

. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect

— a lot more.G RIFFITH
, Circuit Judge , concurring: I, too, agree fully with the per curiam opinion, but do not join my colleagues’ concurrence with its spirited criticism of the Supreme Court’s long

- standing approach to claims of economic liberty. Although by no means unsympathetic to their criticism nor critical of their choice to express their perspective, I am reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.