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Judge Janice Brown Writes Scathing Economic Rights Concurrence

By Tanya Roth, Esq. on April 30, 2012 | Last updated on March 21, 2019

A D.C. Circuit Court of Appeals case involving a dairy farmer is drawing attention, particularly in light of a concurring judge's scathing opinion.

In a sharply worded concurrence, Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals made the reluctance of her concurrence clear, as she explained that her vote on the three-judge panel was the result of decades of bad Supreme Court precedent.

The issue before the case was a 2005 federal law. The law essentially prevented dairy farmers that produce and process milk, from having a competitive advantage over the dairy farms that solely produce milk.

The law allegedly came about with a specific dairy firm in mind, reports the National Review. Under the law, milk bottlers and distributors ("handlers") must pay a fixed price into a centralized "producer settlement fund." The fund would then pay the dairy farms ("producers") a single price per gallon of milk, regardless for what it is sold at.

For firms operating as both producers and handlers, however, the payment into the fund got complicated. As such, they were exempt from paying into the fund.

The 2006 law changed that, specifically singling out firms that operated in Arizona and the Pacific Northwest and sold more than three million pounds of their own milk per month.

The law essentially isolated two dairy companies owned by Hein Hettinga and his family. The Hettingas brought suit, alleging that the law constituted an improper Bill of Attainder.

Judge Brown's opinion made reference to this, citing her skepticism in upholding a law that targeted a single milk producer. She was joined in her concurrence by fellow Republican appointee, Chief Judge David B. Sentelle.

This case is part of the economic rights debate, which grew more heated in the Obamacare lawsuits. The scathing opinion of the judges here shows the controversy over government regulation over economic rights and whether the courts should assert more power to overturn infringing laws.

Brown has been highly vocal over the years on economic issues, at times comparing liberal economic policies with slavery.

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