IN DECEMBER 2006 The Washington Post profiled an upstart Arizona dairy farmer named Hein Hettinga. His claim to fame was developing a clever business plan that allowed his farms to lawfully bottle and sell their own milk for as much as 20 cents less per gallon than the minimum price set by a federal law that has been in place since the New Deal. Not surprisingly, Hettinga's low-priced milk was a big hit with consumers. It practically flew off the shelves at Costco.
That's when things turned sour. As the Post put it, "a coalition of giant milk companies and dairies, along with their congressional allies, decided to crush Hettinga's initiative. For three years, the milk lobby spent millions of dollars on lobbying and campaign contributions and made deals with lawmakers, including incoming Senate Majority Leader Harry M. Reid (D-Nev.)."
Those lobbying efforts bore fruit in the form of the Milk Regulation Equity Act. Among other things, this federal statute imposed new minimum milk pricing rules on all producer-handlers operating out of Arizona that distribute at least 3 million pounds of fluid milk per month. In practical terms, Hettinga's operation, Sarah Farms, was the only outfit in the entire state fitting that description. Uncle Sam effectively singled out Sarah Farms for abuse.
In response, Hettinga filed suit in federal court, charging the federal government with violating his constitutional right to earn a living. In April 2012 a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the law, requiring the upstart dairy farmer to impose a federal price hike on his unlucky customers.
But there was a twist. Though the judges ruled unanimously that "longstanding Supreme Court precedent readily dispenses with [Hettinga's] argument," two of the three judges who voted against Hettinga filed a separate concurring opinion in which they denounced the very legal precedents that forced their hands. This case "reveals an ugly truth," wrote Judge Janice Rogers Brown, joined by Chief Judge David Sentelle: "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." Still, because she was only a lower court judge, Brown concluded, she was duty-bound...