Constitutional and Administrative Law of Food | jgersen | August 27, 2017


Constitutional and Administrative Law of Food

by jgersen Show/Hide
A surprising number of canonical constitutional and administrative law cases involve food. Although we cannot provide anything approaching a complete overview of constitutional and administrative law doctrine, the cases in this section provide a selected introduction. The cases involve different causes of the U.S. Constitution and therefore doctrines often seemingly unrelated except through the common source of law.  As you read, consider the possibility that they are unified not ony by a common source of law, but also by a common subject.  Even a the challenge to the Affordable Care Act, although not ostensibly about food, was often cast in terms of whether the federal government can make you eat broccoli.  Perhaps the fact that so many constitutional law doctrines have developed around food is happenstance, but perhaps not.      EDIT PLAYLIST INFORMATION DELETE PLAYLIST

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  1. 1 Show/Hide More Wickard v. Filburn
    Original Creator: jgersen
    The Commerce Clause in Article I, Sec. 8 of the U.S. Constitution grants the Congress power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;”
    <p>1. Small Farms. Filburn operated a small farm in Ohio on which he kept dairy cattle, sold milk, raised poultry and sold eggs. As Justice Jackson noted, it was Filburn's practice to raise some winter wheat, sella portion of it, use some of it to feed his poultry and animals, and to use some in flour for consumption.</p> <p>2. Agricultural Allotments. Pursuant to the Agricultural Adjustment Act, Filburn was allowed to sow 11.1 acres but he showed 21 acres. He harvested more wheat than he was allowed, which constituted &quot;marketing excess subjecting him to a penalty on each bushel. Unlike the standard economic model in which the quantity of a good produced is a function of anticipated market demand for a good, the <span class="caps">AAA</span> set out a scheme in which the federal government decided which farmers could produce which crops in what amounts. By controlling the volume of wheat moving in interstate commerce, it was hoped that both surpluses and shortages would be avoided and harmful volatility in the price of wheat minimized.</p> <p>2. Inter- and Intra-state Commerce. Wickard v. Filburn was a frontier case because, at least on the facts assumed in the opinion, none of Filburn's wheat was headed for inter-state commerce. It was exclusively to be used and sold intra-state, thus squarely presenting the question whether the Commerce Clause grants Congress the power to regulate not shipped in interstate commerce.</p> <p>3. Sale, Production, and Consumption. Filburn also argued that the statute regulates &#8220;production&#8221; and &#8220;consumption&#8221; of wheat&#8212;activities he thought beyond teh reach of the Commerce Clause because they are &#8220;local in character&#8221; and their effects on interstate commerce are at most &#8220;indirect.&#8221; Some prior Commerce Clause cases used such language to describe the permissible scope of constitutional authority, but Wickard v. Filburn rejects that framework. After the case, how does one analyze whether a statute regulating intrastate commerce or conduct is a permissible exercise of legislative power? Is there any conduct that is outside the scope of power? Over the years, the case has garnered enormous support and criticism. Critics argue that it was a death knell of any judicially imposed limits on commerce clause authority by Congress. Whether or not this overstates the case, and whether it is to be celebrated or grieved, it is clear that after Wickard, the Commerce Clause was understood to be a far more expansive source of authority for federal legislation covering an ever-increasing domain of policy.</p> <p>4. Four Filburns. Note the rhetoric employed by Justice Jackson. Filburn is portrayed as a small farmer, raising wheat in on his small farm for his own consumption and use. Critics of the case conceive of it as a classic case of government overreach. Yet, how much does that conclusion depend on the reality of Filburn. What is Filburn was intentionally raising wheat in excess of his allotment to sell locally, depress the price of wheat, and driver his competitors out of business? What if he exceeded his allotment as an act of civil disobedience to protest what he believed were foolish and unjust government policies? What if Filburn took a strange joy having wheat fires each year such that he planted and harvested in excess of his quota, but never used any of it for feeding himself or his family? How much, if at all, does or should Filburn's motivation for his acts matter for the purposes of Constitutional analysis? How much, if at all, does or should Filburn's intended or actual use of the wheat matter for constitutional analysis? Note that the government rarely gets to regulate particular Filburns. Rather, the government regulates classes of Filburns, groups of wheat growers whose particular reasons for growing wheat vary. Consider how much granularity is required with respect to government action, either as a matter of constitutional or administrative law. See, e.g., Gallagher v. Crown Kosher Supermarkets and United States v. Nova Scotia Food Products below.</p>
  2. 2 Show/Hide More Horne v. Dept. of Agriculture
    Original Creator: jgersen
    Together with Block v. Community Nutrition Institute, discussed later in the materials, Horne illustrates one of the major statutory regimes for dealing with volatility in the food market, particularly agriculture. It is a case that illustrates one fault-line of debate about the the constitutional limits on federal authority to regulate food and also how far from a typical economic market agriculture remains today.
  3. 3 Show/Hide More A.L.A. Schechter Poultry Corp. v. United States
    Original Creator: jgersen
    <p>1. <span class="caps">NIRA</span>. The National Industrial Recovery Act (<span class="caps">NIRA</span>) was part of a post Great Depression New Deal package of legislation meant to increase wages and decrease market instability of the sort that gave rise to the Great Depression. <span class="caps">NIRA</span> had many provisions, but the centerpiece was the authority to create industry codes that would specify, for example, minimum wages, maximum hours, labor conditions, and terms of sale or conduct for anyone doing business in the industry. Typically, the code would be approved (and often drafted) by members of the industry, but would not become binding law until certified by the President or an agency head.</p> <p>2. Delegation. Article I, Sec. 1, cl. 1 of the U.S. Constitution states &#8220;All legislative powers herein granted shall be vested in a Congress of the United States.&#8221; The nondelegation doctrine requires that when Congress delegates authority to the President or an administrative agency, it must be sufficiently constrained by an intelligible principe. If not, the statute amounts to an unconstitutional delegation of legislative power. So long as the statute provides constraints on the unbridled exercise of discretion, it is permissible. See Whitman v. American Trucking Ass'n, 531 U.S. 457 (2001). There has been tremendous debate about the existence and vitality of the nondelegation doctrine. For our purposes, it is enough to note there have only been two Supreme Court cases striking down a statute on nondeegation grounds and one of them involved food.</p> <p>3. 1935 was a very good (or bad) year. The year of 1935 was either a very good or very bad year, depending on your perspective. It was the only year in which the Supreme Court struck down a statute on nondelegation grounds. it did so twice, once in Schechter Poultry and once in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (also involving <span class="caps">NIRA</span>). These cases were part of a political controversy over President Roosevelt's New Deal in a Supreme Court hostile to the expansion of federal legislative power.</p> <p>4. Sick Chickens. Schechter Poultry is colloquially known as the &#8220;sick chicken&#8221; case. Part of the Code required whose purchasing chickens had to buy crates rather than pick individual chickens. That meant that sellers would create crates for sale that mixed sick chickens with healthy chickens and buyers had no choice but to take the sick with the heathy. Why draft a code with this requirement? If buyers could pick individual chickens, they would choose only the healthy ones, leaving the sellers to bear the cost of the unsold sick chickens. That would reduce seller profits and increase volatility (at least if it was hard to know how many sick chickens there would be in any given year). Would ultimate consumers pay for sick chickens? What if sick chickens were slaughtered and mixed with heathy chickens? Is the sick chicken rule just a wealth transfer from buyers to sellers or is there a another defense of the program? Imagine a similar modern program for strawberries. Would you support a government program requiring buyers to pay for rotten strawberries mixed in a crate with ripe strawberries? If not, what is different about the sick chicken rule?</p> <p>5. <span class="caps">NIRA</span>, Industry Codes, and Other Markets. As you read the following cases, consider the constitutionality of other legal mechanisms adopted to ensure stability in the food market. Are the delegations of authority to set &#8220;market orders&#8221; different than the authority adopt codes of fair competition? Why or why not?</p>
  4. 4 Show/Hide More United States v. Carolene Products Co.
    Original Creator: jgersen
    Carolene Products is one of the most famous constitutional law cases of all time. It is best-known for what has come to be known as colloquially as Footnote 4. The substance question presented in the case, however, is the constitutionality of the Filled Milk Act of March 4, 1923, 42 Stat. 1486.
    <p>1. Constitutional Questions. The Filled Milk Act prohibits the shipment in interstate commerce of skimmed milk compounded with any fat or oil other than milk fat so as to resemble milk or cream. The question presented was whether this exceeded Congress's constitutional power to regulate interstate commerce or infringed the Fifth Amendment.</p> <p>2. Milnut. Minut was a compound of condensed skimmed mik and coconut oi made to resemble condensed milk or cream. The makers of Milnut were indicted for selling an adulterated article of food, injurious to the public health.</p> <p>3. Commerce Clause. The Court concludes the statute is a legitimate exercise of Congressional authority. First, Congress &#8220;is free to exclude from interstate commerce articles whose use in the states for which they are destined it may reasonably conceive to be injuries to the public health, morals, or welfare.&#8221; Second, that is permissible even if an effect or intent is to restrict the use of articles of commerce &#8220;within&#8221; the states. Third, Congress may regulate interstate commerce even the domain of the law overlaps with the traditional police power of the states. On modern doctrine, the analysis would look somewhat different, but the result would be the same.</p> <p>4. Fifth Amendment. The Court next concludes that the prohibition on shipment of appellee's product in interstate commerce does not infringe the Fifth Amendment, citing Hebe Co. v. Shaw, 248 U.S. 297. The power of the State to &#8220;secure a minimum of particular nutritive elements in a widely used article of food and to protect the public from fraudulent substitutions, was not doubted.&#8221;</p> <p>5. Legislative Declarations. Consider the following passage:</p> <p>We may assume for present purposes that no pronouncement of a Legislature can forestall attack upon the constitutionality of the prohibition which it enacts by applying opprobrious epithets to the prohibited act, and that a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty, or property had a rational basis.</p> <p>What is at issue here? The prior portion of the opinion argues that the legislature is free to prohibit from interstate commerce articles of food that are injurious to public health. Does that mean that the legislature can prohibit any food or product simply by attaching a declaration of it is dangerous? Or, must the legislature have a record with factual evidence of a risk? If the latter, how deferentially should courts review that evidence? On the Court's reasoning, if there is no factual basis for a finding of risk, then the statute would be/might be (?) beyond the scope of legislative authority. On this view, the scope of the authority granted to the legislature by virtue of the Commerce Clause is marked by factual findings, perhaps reviewable or perhaps unreviewable by courts. In the above passage, the Court suggests that a statute finding a product dangerous, but not allowing affected to disprove the risk in court, would be unconstitutional. Perhaps?</p> <p>6. Footnote Four. The following paragraph adds:</p> <p>Even in the absence of such aids, the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.</p> <p>The famous footnote four follows.</p>
  5. 5 Show/Hide More Hebe Co. v. Shaw
    Original Creator: jgersen

    <p>1. Hebe. Hebe is skimmed milk condensed by evaporation to which six per cent. of cocoanut oil is added by a process that combines the two.</p> <p>2. Condensed Milk in Ohio. 12725 of the General Code of Ohio requires that &#8220;Whoever manufactures, sells, exchanges, exposes or offers for sale or exchange, condensed milk unless it has been made from . . . unadulterated . . . milk, from which the cream has not been removed and in which the proportion of milk solids shall be the equivalent of twelve per cent. of milk solids in crude milk, twenty-five per cent. of such solids being fat, and unless the package, can or vessel containing it is distinctly labeled, stamped or marked with its true name, brand, and by whom and under what name made.&#8221; Violations of the statute are criminal.</p> <p>3. Statutory Meaning. Justice Holmes reasons that Hebe is really just condensed milk in a cheaper, less good form. As such, it is prohibited by the terms of the statute. How would you characterize Justice Holmes' interpretive method? Is it textualist? Purposivist? Is he searching for the likely legislative intent? The dissent notes that the statute is a criminal statute. When interpreting criminal statutes, courts at the time often explicitly or implicitly invoked the rule of lenity&#8212;an ambiguous criminal statute should be interpreted narrowly to resolve ambiguities in favor of the accused. Here, that would mean that the statute should not be read to cover conduct not clearly within its scope.</p> <p>4. Fourteenth Amendment. The Fourteenth Amendment challenge sought to have the Ohio Statute declared unconstitutional because it prohibited the sale of a wholesome, which is to say not harmful, product. Justice Holmes squarely rejects this argument. Can you discern on what grounds? His opinion raises a number of possibilities. First, to serve a legitimate end, the legislature may prohibit a class of articles or conduct, some of which are innocent or not harmful. Must some portion of the prohibited conduct be harmful? Second, the statute must be reasonable and not arbitrary. The Ohio statute is reasonable and not arbitrary because . . . ? Third, if it is not clear whether the prohibited article is harmful, then the legislature should get deference from the courts. Does Holmes think it is debated or debatable that Hebe is harmful? Note that Hebe did not seek to confuse or deceive. Hebe was clearly labeled as precisely what it was.</p> <p>5. Compounds and Criminality. One of the issues in the case involves how to think about compound foods. Condensed milk, in the dissent's view, is a pure food. Hebe, by contrast, is a compound food. That is, consists of condensed milk plus some other ingredients. The dissent views the statute as prohibited the sale of bad condensed milk, but allowing for compounds of condensed milk and other things, as Hebe does. Justice Holmes views Hebe as a bad form of condensed milk. Is there a right answer to this question? Is there even a better answer? Does the answer depend on chemistry or agriculture or does it depend on anthropological or sociological questions about how we understand certain foods and the meaning that we attach to different food products?</p> <p>6. Ice Cream. In Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916) involve da challenge to an Iowa statute requiring that ice cream sold must contain a certain proportion of butter fat. It was held to be a constitutional exercise of the police power of the State.</p>
  6. 6 Show/Hide More Gallagher v. Crown Kosher Supermarkets
    Original Creator: jgersen
    Gallagher v. Crown Kosher Supermarkets entails two constitutional challenges to a Massachusetts statute requiring that supermarkets be closed on Sunday. Note that the Constitution regulates how states and local governments themselves regulate the sale and distribution of food.
    <p>1. Equal Protection. Ours is not a course in Constitutional law, but the basic idea of equal protection analysis is that a government law may distinguish among different classes of citizens for a good reason. How good a reason the government needs to survive legal challenge depends on the nature of the of hte classification. If the law distinguishes on the basis of race, for example, the law receives strict scrutiny from the court and may be sustained only if the law is narrowly tailored to accomplish a compelling government interest. If the law distinguishes on the basis of sex, an intermediate level of scrutiny is applied. If the law distinguishes between groups that are not specially protected, then the law is Constitutional so long as has a rational basis. Supermarket owners are clearly not a protected class and the Court in Crown Kosher Supermarkets found plenty of justifications for the Sunday ban. Religion has long been a protected class and had the law expressly targeted supermarkets owned by Orthodox Jews, the government's interest would have had to be much stronger. <br /> 2. Religion &amp; Free Exercise. The plaintiffs argued that the law impinged on the free exercise of their religion in violation of the First Amendment. Because the owners could not operate on Saturday because of their own faith, the prohibition on operating on Sunday precluded the owners from selling their goods all weekend and jewish consumers from obtaining kosher goods all weekend. Relying on precedent, the Court found these arguments unavailing. Why? <br /> 3. Food &amp; Religion. The regulation of food has long deeply entwined with religious practice. Rules specified in the Old Testament and the Qur'an are just two examples. Many, if not most, religions contain restrictions on diet, rules governing which foods may never be eaten and which may be eaten only in certain circumstance. How hard should the State have to work to respect these rules. Should the government be required to provide Kosher or Halal meals to prisoners? To students in public schools? In government cafeterias?</p> <p>4. Prisons and the First Amendment. A prisoner may sue under the First Amendment. Prisoners do not lose their right to free exercise of their religion because of their incarceration, but the circumstances of prison life may require<br /> some restrictions on prisoners' exercise of their religious beliefs. In judging free exercise claims based on the First Amendment, courts have tended to be highly deferential to prison authorities. The standard under the First Amendment requires only that there be a “valid, rational connection” between the prison regulation and the underlying legitimate government interest. The government's objective must be legitimate and neutral. For instance, in O'Lone v. Estate of<br /> Shabazz, 428 U.S. 342 (1987), Muslim inmates challenged a prison policy that prevented some Muslim inmates assigned to outside work detail from attending a weekly Friday prayer service. The Court found a valid, logical connection between the policy of requiring inmates to remain with their work details and the goal of simulating work conditions and responsibilities in society. The Court also found that accommodating the inmates' desire to return for Friday prayers would<br /> have unduly affected other inmates, prison personnel, and the allocation of prison resources. The Court rejected a strict or heightened standard, explaining: “To ensure that courts afford appropriate deference to prison officials, we have determined that prison regulations alleged to infringe constitutional rights are judged under a ‘reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.” Courts will often construe a pro se claim for a religious diet as a <span class="caps">RLUIPA</span> claim, but not always, and where the prisoner asserts only a free exercise claim, (s)he will usually lose.</p>
  7. 7 Show/Hide More Library of Congress Guide to Administrative Law
    Original Creator: jgersen
    Administrative Law—the law governing what government agencies may do and how they must do it—is discussed throughout the book. This section provides a brief topical overview. There are many useful administrative law primers. This one, from the Library of Congress, is a particularly good (and short) summary of non-judical nuts and bolts.
  8. 8 Show/Hide More Chocolate Mfrs. Ass'n of United States v. Block
    Original Creator: jgersen
    <p>1. <span class="caps">USDA</span> and Nutrition. Historically, the <span class="caps">USDA</span> has administered a host of child nutrition programs pursuant to the National School Lunch Act and the Child nutrition Act. The <span class="caps">WIC</span> program was created in 1972 to assist pregnant, postpartum, and breastfeeding women, infants, and young children from families with low income and whose health was at risk because of inadequate nutrition.</p> <p>2. Supplemental Foods. As discussed in the case, Congress subsequently (1975) defined supplemental foods to mean &#8220;foods containing nutrients known to be lacking in the diets of populations at nutritional risk and, in particular, those foods and food products containing high-quality protein, iron, calcium, vitamin A, and vitamin C&#8230;&#8221; The Department issued new regulations specifying that flavored milk was an acceptable substitute for fluid whole milk in packages of food distributed to women and children, but not infants. That is, the program helped provide supplemental foods&#8212;foods containing nutrients that are lacking in the diets of the relevant populations. And, the Secretary concluded that favored milk could be considered a supplemental food for women and children, but not infants.</p> <p>3. Substitute Foods. In 1978, Congress amended its statutory definition of supplemental foods. The amendment stated the Secretary could approve state agency decision to &#8220;substitute different [supplemental] foods providing the nutritional equivalent of foods prescribed by the Secretary, to allow for different cultural eating patterns.&#8221; The department then redrafted its regulations to comply. The proposed rule contained extensive discussions of sugar and nutrition, particularly in cereal.</p> <p>4. Proposed Rules and Final Rules. The proposed rule allowed for food packages for women and children to include milk that could be flavored or unflavored. After receiving 78 comments requesting that flavored milk be deleted on grounds that it contained too much sugar to be healthy, extensive comments, the final rule deleted flavored milk from the approved list of substitute supplemental foods.</p> <p>5. Adequate Notice. Chocolate Mfrs. Ass'n is primarily a case about the adequacy of notice. If the Notice of Proposed Rulemaking does not adequately inform the pubic about the potential range of decisions, then the public cannot meaningfully participate. As the court says, the final rule must be able to differ from the proposed rule or else the agency cannot learn from the comments it receives. At the same time, adopting a completely different final rule means that the public could not know on what to comment. The notice must be sufficiently descriptive to give parties a fair opportunity to comment.</p> <p>6. Logical Outgrowth. The test adopted by the court is known as the logical outgrowth test. If the final rule is a logical outgrowth of the notice and comments given, then the Notice is adequate and the final rule valid. Although difficult to specify with linguistic precision, the court concluded the final rule in <span class="caps">CMA</span> was not a logical outgrowth of the proposed rule.</p>
  9. 9 Show/Hide More U.S. v. Nova Scotia Food Products Corp.
    Original Creator: jgersen
    1. Statutory Authority. An administrative agency only has as much authority as its organic statute grants. If the statute giving the agency authority does not grant rulemaking authority, the agency cannot issue rules. If the statute does not allow the agency to regulate milk producers, the agency force milk producers to do anything. As the court said in this case, “the argument that the regulation is not supported by statutory authority cannot be dismissed out of hand.” The provision of the statute relied on <span class="caps">FDA</span> was the adulteration provision. The categories of adulteration prohibited in section 342 refer to food as an adulterated product rather than to the process of preparing food, except section (a)(4). The appellants argued that the prohibition on “unsanitary conditions” applies to the plant, not “conditions which merely inhibit the growth of organisms already in the food when it enters the plant in a raw state.” What is the court’s answer? At first glance, the court seems to agree with appellants, yet nevertheless sustain the regulation as within the grant of statutory authority. As the court says “when we are dealing with the public health, the language of the Food, Drug and Cosmetic Act should not be read too restrictively, but rather as ‘consistent with the Act's overriding purpose to protect the public health.’” That is, the <span class="caps">FDCA</span> seeks to protect public health. Even though the most natural reading of the statute does not really address risks that inhere in the raw food product, protecting the health is important enough to justify stretching the text of the statute to allow the agency to address this particular underling risk. <br /> 2. Notice and Comment Rulemaking. The agency pronouncement at issue in Nova Scotia Food is known as a Rule or equivalently a Regulation. The Administrative Procedure Act establishes four default categories of agency action, formal rulemaking, informal rulemaking, formal adjudication, and informal adjudication. The last is a residual category. If an agency decision is not one of the first three categories, then it is informal adjudication. At the risk of sacrificing clarity for accuracy, a Rule resembles legislation. It establishes a set of general legal obligations on all regulated parties on a forward-going basis. An order more closely resembles a judicial decision, a backward-looking resolution of obligations for particular parties before the court. There are many nuances, but this classification is usually correct. An order must result for an adjudication. A Rule must result from a rulemaking. For a variety of reasons, most agencies have shifted to using informal rulemaking when they enact policy. Notwithstanding its name, informal rulemaking, otherwise known as notice-and-comment rulemaking involves the following steps: (1) The agency issues a Notice of Proposed Rulemaking which explains what the agency is considering doing; (2) Public Comments, today usually submitted via the internet, offering input on what the agency should do and why a particular course of action is good or bad; (3) issuance of a Final Rule together with a “concise statement of basis and purpose.” The statement of basis and purpose contain the agency’s responses to the comments it receives and an explanation of why it chose one particular course of action rather than another. When the new Rule is challenged in court, the litigation may involve several related claims.<br /> 3. Notice. If the final Rule deviates too much from the proposed rule, regulated parties may challenge the initial Notice as inadequate. In order to obtain meaningful public input, the public must have a sense of what the agency might do. If the Notice details one course of action and the Final Rule another course of action entirely, the Notice may be found inadequate and the Final Rule struck down as invalid. <br /> 4. Replying to Comments. If the statement of basis and purpose does not contain and adequate response to public comments, the final rule may be invalid. Indeed, if the Final Rule does not vary at all in response to comments, the agency, again, risks losing in court. <br /> 5. Data and the Record. In order for public comments to be meaningful, regulated parties must be able to evaluate, critique, and respond to scientific studies and data on which the agency relies. Inadequate disclosure of those data may also render an agency decision vulnerable in litigation. <br /> 6. Arbitrary and Capricious. Even if all of the above requirements are met, an agency rule resulting from informal rulemaking will be struck down if it is “) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. 706(2)(a). The administrative law literature contains many articles about what this standard of review does or ought to mean. At a minimum, however, the arbitrary and capricious standard requires that the agency explain the relationship between the facts in ther record and its ultimate conclusion. See Motor Vehicles Man. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29 (1983). <br /> 7. Food Law &amp; Administrative Law. Just as many canonical constitutional law cases involve food, so too do many canonical administrative law cases involve food. Nova Scotia Foods is one of many.
  10. 10 Show/Hide More Block v. Community Nutrition Institute
    Original Creator: jgersen
    The parties challenging the decision in Nova Scotia Food were producers directly affected by the agency's regulation. That is, the plaintiffs were so-called “objects of the regulation.” Directly regulated parties like these rarely have difficulty meeting the requirements for standing to sue. What if the agency had specified safety requirements for botulism that consumers felt were not stringent enough? Would those consumers have standing? Would those consumers have a valid cause of action for bringing suit? This next case grapples with these challenges.
    <p>1. Competition, Price, Stability, and Food. As Justice O'Connor explains, the 1937 Act authorized the Secretary of Agriculture to issue &#8220;milk market orders&#8221; that set a minimum price that dairy processors must pay to dairy farmers for milk. This regime was part of a very common legal reforms undertaken in the aftermath of the great depression to keep prices high. Most modern economists and policy-makers today believe that market competition is desirable precisely because it reduces prices and increases consumer welfare. Like the industry code at issue in Schechter Poultry, however, the dairy statute sought to avoid what was called &#8220;ruinous competition.&#8221; If, for example, producers produced too much milk in a given year, the increase in supply would cause prices to drop, which in turn would lower profits to dairy farmers. Sometimes the price drop would be so severe that farmers would go out of business. Lower supply due to fewer farmers the next year might bring prices up, but there might also not be enough milk supply for the public. By ensuring a minimum price, such government programs &#8220;stabilized&#8221; the industry, ensuring fewer farms would collapse and therefore enough food would be produced for the country. Price controls and stabilization programs were remarkably common and remain in force for many segments of the food industry, notwithstanding our background principles of a free market economy in which prices are set by supply and demand.</p> <p>2. Private Approval. Before the market order becomes effective, it must be approved by the handlers of 50 percent of the milk covered by the order and 2/3 of the dairy producers in th region. Does the regime amount to delegation run riot&#8212;a scheme in which private actors can veto the decision of an administrative agency? Or, is the regime a sensible approach that requires approval of both producers and consumers just as any individual contract for milk would do?</p> <p>3. Preclusion of Judicial Review. Section 702 of the <span class="caps">APA</span> confers a cause of action on persons &quot;adversely affected or aggrieved by agency action within the meaning of a relevant statute, unless the statute precludes review. Litigation often requires interpreting a statute to ascertain whether it &#8220;precludes&#8221; review. Block v. Community Nutrition Institute, the majority concluded that Congress made clear an intention &#8220;to limit the classes entitled to participate in the development of market orders.&#8221; Handlers and producers participate, but not consumers. Therefore, consumers may not sue. Are consumers not affected by the milk market orders? Why should some parties in the food production, distribution, and consumption chain be allowed to participate and not others affected by the price controls?</p>
  11. 11 Show/Hide More Nix v. Hedden
    Original Creator: jgersen
    Nix v. Hedden is a classic of staturoy interpretation.  It presents the court squarely with the age-old question in life and law: is the tomato a fruit or a vegetable?

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