51:2 Don’t Cry over Spilt Milk: Hettinga v. United States


The Framers of the Constitution recognized the protection of property rights as “the first object of government.” Included in these guaranteed rights is an individual’s economic liberty to have “free use of his faculties and free choice of the objects on which to employ them. Accordingly, when creating the political structure, the Framers intended for judicial review to protect against the rise of factionalism and the excesses of majoritarian government that would otherwise thwart an individual’s use of this natural privilege. However, the Supreme Court’s current standard of judicial review as applied to regulations that impinge upon an individual’s guaranteed economic liberty has corroded its role as primary protector against these potentially harmful factions. As evidenced by the United States Court of Appeals for the District of Columbia Circuit’s opinion in Hettinga v. United States, judicial review has lost sight of its purpose when it comes to protecting individual economic liberties. Consequently, this misinterpretation of rational review has allowed for the narrow interests of politically powerful market participants to inhibit the financial freedoms of weaker industry competitors, as well as consumers. This Note explores the problems inherent in this degree of legislative deference toward economic regulation and identifies solutions for strengthening rational basis review to better protect against this adverse factional control.