United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2011 Decided April 13, 2012

No. 11-5065

HEIN HETTINGA, ET AL.,

APPELLANTS

v.

UNITED STATES OF AMERICA,

APPELLEE

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

Before: SENTELLE, Chief Judge, BROWN and GRIFFITH, 

Circuit Judges.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge BROWN, with 

whom Chief Judge SENTELLE joins.

Concurring opinion filed by Circuit Judge GRIFFITH.

PER CURIAM:

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 we affirm.

I

Milk markets in the United States are regulated by a 

complex system of price controls 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 distributors 

(“handlers”) to dairy farmers (“producers”). Id. § 608c(1). 

Under a typical milk market order, a dairy farmer supplies 

raw milk to a processor 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 Dairy 
3

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 “lowvalue” 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). This 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 such 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 marketing 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 located in Arizona, processes raw milk into 

bottled milk and milk products that are sold exclusively in 

California. Because California is not a federally regulated 
4

milk marketing area, GH Dairy was not subject to the federal 

pricing and pooling requirements.

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 includes 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-handlers was 

based on evidence of “disorderly marketing 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 blend 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 Fed. Reg. 74,166, 

74,186–88 (Dec. 14, 2005). The USDA Rule was 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 argument 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 

voluntarily dismissed their case. See Compl. at ¶¶ 45–46.

 President Bush subsequently 

signed the MREA into law on April 11, 2006. Subsection N 
5

of the MREA, 7 U.S.C. § 608c(5)(N), codified the USDA 

Rule’s revocation of the exemption for large producerhandlers in the Arizona Marketing Area, including Sarah 

Farms. Unlike the USDA Rule, however, it applied neither to 

Nevada, which Congress exempted from coverage by any 

federal milk marketing orders, nor to the Pacific Northwest 

Milk Marketing Area. Subsection M of the MREA, id. § 

608c(5)(M), imposed the federal pricing and pooling 

requirements on handlers, like GH Dairy, that were located in 

a federally regulated 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 alleged 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 protection 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. Id. ¶ 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 under 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. Dist. of Columbia 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 inferences 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, cl. 3 of the United States Constitution 

states that “[n]o Bill of Attainder or ex post facto law shall be 

passed.” A bill of attainder is “a law that legislatively 

determines guilt and inflicts punishment upon an identifiable 

individual without 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 attainder, a statute must: (1) 

apply with specificity to affected persons; (2) impose 

punishment; and (3) assign guilt without a judicial trial. See 

Selective 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 person or class by name or applies to “easily 

ascertainable members of a group.” Foretich, 351 F.3d at 

1217. A bill of attainder need not expressly name its target; 

some bills of attainder 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. Subversive 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-permonth threshold established by Subsection (N), and GH Dairy 

is currently the only handler located within 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. Applicability 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 would 
8

apply to any producer-handler that meets its statutory 

requirements, not only the Hettingas. A statute with openended 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 86.

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 businesses 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 does not necessarily apply with 

the requisite specificity to qualify as a bill of attainder. In 

Nixon v. Administrator of General Services, 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 presidents, the statute 

was not a bill of attainder. Id. The Court cautioned that the 

President’s argument that “an individual or defined group is 

attainted whenever he or it is compelled to bear burdens 

which the individual or group dislikes” would “cripple the 

very process of legislating, 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 current “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 play any role in the specificity

analysis. Much like Title II of the Presidential 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 transform an open-ended statute into a 

bill of attainder. 

The Hettingas also claim that the district court 

procedurally erred by determining whether the Hettingas were 

easily ascertainable as 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 

that Subsections M and N currently apply only to their 

businesses, id., and that a few opponents of the legislation 

believed passage of the MREA 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 

specificity to affected persons, we need not decide whether it 

satisfies either of the remaining elements of a bill of attainder. 

We therefore affirm the district court’s dismissal of the 

Hettingas’ bill of attainder 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 fundamental 

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 Univ. 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 ensuring orderly milk markets by (1) 

preventing handlers located in regulated regions from gaining 

advantages over their competitors by exporting milk to 

unregulated regions and (2) preventing large producerhandlers 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 basis 

review is “not [] toothless.” Logan v. Zimmerman Brush Co., 

455 U.S. 422, 439 (1982) (Blackmun, J., concurring).
11

Regardless of how Justice Blackmun characterized 

rational basis review, the Supreme Court’s subsequent 

decisions in Beach makes 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 scheme—that large dairy businesses have used the 

exemptions 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 factual 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 plaintiff 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 Servs., 28 F.3d 1218, 1222 (D.C. 

Cir. 1994). Here, the government provided an explanation 

that is not only rational on its face, but also has been 

consistently 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 violated their 

procedural rights under the Due Process Clause by foreclosing

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 process claim: that the government has interfered 

with a cognizable liberty or property interest. Kentucky Dep’t 

of Corrs. 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 their 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 still-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.

V
13

Finally, 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 dismiss. 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 amendments 

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 that the statute violates their Equal Protection or Due 

Process rights.

For the foregoing reasons, the decision of the district 

court is 

Affirmed.
BROWN, Circuit Judge, with whom Chief Judge 

SENTELLE joins, concurring: 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-usage 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 Hettingas’ collision with the MREA—the 

latest iteration of the venerable AMAA—reveals an ugly 

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 regulation 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 

economic 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 restrictions 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, even 
2

improvident decisions will eventually be rectified by the 

democratic 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 long 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 minimalist 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 economic 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. Beach 

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 

pessimistic 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 1787, 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 thwart more potent threats to the Republic: the 

political temptation to exploit the public appetite 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 such 

shenanigans. Compl. ¶¶ 40–45. And press accounts during 

the height of the controversy support the claim. See Dan 

Morgan, Sarah Cohen, & Gilbert M. Gaul, “Dairy Industry 

Crushed Innovator Who Bested Price-Control System,” Wash. 

Post, Dec. 10, 2006, available at 

http://www.washingtonpost.com/wpdyn/content/article/2006/12/09/AR2006120900925.html. The 

Washington Post described Hein Hettinga as an American 

success 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 Senator 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 gallon 
4

overnight” until two senators, one from each party, pushed 

through the milk legislation at issue in this case. 

Very little seems to have changed since the Supreme 

Court’s initial confrontation with the regulation of milk 

pricing in Nebbia. The state of New York, responding to 

falling prices caused by the Great Depression, created 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 

said, “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 accept 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. The Hettingas built their 

business on an exemption—one that was profitable for them 

and beneficial for consumers. The government acknowledged

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, and were causing a measurable 

and “significant[]” decrease in the blend prices being paid to 
5

regulated handlers. See 70 Fed. Reg. 74,166, 74,186 (Dec. 

14, 2005). As another court has noted, federal regulation of 

milk pricing “is premised on dissatisfaction with the results of 

competition.” Alto Dairy 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, 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. 

 

The judiciary justifies its reluctance to intervene by 

claiming incompetence—apparently, judges 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 (Alexander 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 often control the 

democratic process. It allows the legislature free rein to

subjugate the common good and individual liberty to the 

electoral calculus of politicians, the whim of majorities, or the 

self-interest of factions. See 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 earlier century, H. L. Mencken offered 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 hoping 
6

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 assessing 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. 
GRIFFITH, 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.