Today, we filed this petition for certiorari with the United States Supreme Court, asking the justices to review a case that severely restricts Americans’ right to challenge the constitutionality of laws. The case, Hettinga v. United States, began when Arizona dairy owners Hein and Ellen Hettinga sued over a federal law that targeted their business alone, in order to force them to stop charging low prices for milk. They argued that this law violated the Constitution by singling them out for disfavored treatment in a manner that wasn’t “rationally related to a legitimate government interest.”

That phrase is important because that “rational relationship” test is the test judges use to evaluate the constitutionality of laws that restrict the rights of business owners, property owners, and most other people—in fact, this test is applicable to all but a few constitutional cases. (Those that involve “fundamental” rights or “suspect” classifications are treated differently.)

But the Hettingas’ case took a turn when the federal government filed a motion to dismiss, and stated in its brief that the law at issue was “rational.” The government introduced no facts or testimony to support that assertion—it just claimed it. And that, the trial court said, was enough. It ruled that under the “rational relationship” test, a court can throw a case out whenever the government simply claims, prior to any evidence or fact-finding, that a law is rational. The Hettingas appealed, but three judges of the D.C. Circuit Court of Appeals affirmed that dismissal, declaring that the trial judge was allowed to “draw

[] factual conclusions at the pleading stage,” and that if “the government provide[s] an explanation that is…only rational on its face,” a court can dismiss case without hearing any evidence.

Now, we’re asking the U.S. Supreme Court to take the case, to decide whether the “rational relationship” test goes that far. As I argue in my book, The Right to Earn A Living, this test has many flaws—indeed, Judges Janice Rogers Brown and David Sentelle wrote a separate opinion in the Hettinga case criticizing the this test because 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.” They were right. But in their decision, they ultimately worsened the “rational basis” test by allowing government to throw out lawsuits simply by saying that the challenged law is valid.

This case goes far beyond business owners, though. Since most constitutional cases are subject to the “rational relationship” test—everything from eminent domain cases to cases involving discrimination against homosexuals—the Court of Appeals’ decision would shut the courthouse doors to plaintiffs practically any time a constitutional argument is raised.

You can read our petition here, and you can learn more about the Hettingas’ fight for economic freedom here.

Special thanks to Alfred Ricciardi of Aiken Schenk, our co-counsel in this effort.

(Cross-posted at PLF Liberty Blog.)