President. Plaintiff concludes that this undermined the
President's opportunity to consider the legislation in the same
way depriving the President of the full ten-day period of review
would. Defendant argues that the President's signature should be
taken as conclusive proof that, the President had an adequate
opportunity to consider the bill.
The Court agrees with defendant that the President's decision
Whether to sign a bill is a non-justiciable political question.
See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663
(1962). The Constitution provides no guidance for judicial
review of the adequacy of the President's consideration of a
bill. Unlike the previous Presentment Clause cases, here
plaintiff is attacking the significance of the President's
signature and arguing that despite the President's signature, he
did not have an adequate opportunity to review the bill.
However, regardless of whether the adequacy of the President's
signature is subject to judicial review, defendant asserts that
the President did adequately review the bill. The incorporated
bill (H.R. 3428) was published in the Congressional Record, and
the final rule was issued by a Cabinet Department under the
President's supervision. Both were public documents available to
the President before the Appropriations Act was even passed.
Plaintiff argues that the alleged Presentment Clause problems
were exacerbated because the bill was confusing. However, the
Constitution does not allow the President additional time for
review when a proposed bill is complicated or confusing.
Laws containing cross-references do not appear to be uncommon.
While no case has addressed the Presentment Clause challenge,
several courts have upheld laws containing cross-references.
See e.g., United States v. Sharpnack, 355 U.S. 286, 293, 78
S.Ct. 291, 2 L.Ed.2d 282 (1958) ("Whether Congress sets forth
the assimilated laws in full or assimilates them by reference,
the result is as definite and as ascertainable as are the state
laws themselves."); United States v. Menominee Indian Tribe of
Wisconsin, 694 F. Supp. 1373, 1375 (E.D.Wis. 1988) ("It is well
established that Congress may incorporate by reference state
criminal laws in federal criminal statutes."); Robertson v.
Seattle Audubon Soc'y, 503 U.S. 429, 433 n. 1, 112 S.Ct. 1407,
118 L.Ed.2d 73 (1992) (involving an appropriations act in which
Congress incorporated by reference, among other things, a list
of spotted owl habitat areas contained in a Forest Service
environmental impact statement).
For the foregoing reasons, the Court is not persuaded by
plaintiffs interpretation of the Presentment Clause. Congress
may incorporate by cross-reference in its bills if it chooses to
legislate in that manner. Nothing in the Presentment Clause, or
elsewhere in the Constitution, demands otherwise.
B. The Due Process Clause of the Fifth Amendment
Plaintiff asserts that the Appropriations Act deprives
plaintiff of the equal protection of the laws. Both plaintiff
and defendant agree that the Court should apply a rational basis
standard in reviewing plaintiffs equal protection claim.
Plaintiff correctly points out that while the rational basis
standard is a low standard that the government can usually meet,
victory for the government is not automatic. See e.g., Romer v.
Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).
Plaintiff asserts that this case does not present an ordinary
equal protection question. Plaintiff argues that since, under
its theory, neither Congress nor the
President considered the full text of the final rule, the Court
should not apply the extremely deferential standard of review
normally afforded rational basis review. This argument is
without merit. The Court shall apply rational basis review: "In
areas of social and economic policy, a statutory classification
that neither proceeds along suspect lines nor infringes
fundamental constitutional rights must be upheld against equal
protection challenge if there is any reasonably conceivable
state of facts that could provide a rational basis for the
classification." FCC v. Beach Communications, 508 U.S. 307,
313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Plaintiffs who
"attack the rationality of [a] legislative classification have
the burden `to negative every conceivable basis which might
support it.'" Id. at 315, 113 S.Ct. 2096 (quoting Lehnhausen
v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001,
35 L.Ed.2d 351 (1973)).
Plaintiffs essential complaint is that neither the
classification of milk plaintiff uses to make milk chocolate,
nor the price differential between classifications of milk, has
any rational basis. Plaintiff submits an affidavit of Audrey
Throne, who has been employed by plaintiff since 1979 and has
spent her entire career in plaintiffs milk operations. Throne
states that plaintiffs milk making process is different from
that of plaintiffs competitors. Plaintiff sweetens fresh fluid
milk, mixes it with chocolate, and then dries it as the first
step in making milk chocolate. Plaintiffs competitors purchase
dried milk from independent milk drying plants which they then
use to make chocolate milk. Dried milk and fluid milk are
classified differently and the price of fluid milk is more than
that of dried milk. Dried milk is placed in Class IV while fluid
milk is placed in Class II. The price of Class II milk is 70¢
per cwt. more than Class IV milk. Thus, plaintiff argues that
since it purchases fluid milk, but plaintiffs competitors
purchase dried milk, the classification imposes a substantial
price penalty on plaintiff.
Plaintiff argues that the classification system is irrational
because all milk starts out as fluid milk and that all milk used
in making chocolate milk must be dried in the process of making
chocolate milk. Since all the milk must be dried, the only
difference between plaintiff and plaintiff's competitors is
where the milk is dried and who dries it.
Defendant asserts that the milk classifications are supported
by a rational basis. Class IV is reserved for surplus uses of
milk, such as powdered milk, while higher classes, such as Class
II, correspond to milk uses which command a higher value on the
market. Milk powder, by virtue of having been reduced to that
form, is a surplus milk product which usually commands the
lowest price on the market. Defendant argues that even though
plaintiff and plaintiffs competitors produce a similar finished
product, they utilize milk that, for rational reasons, has
different market values. Defendant points out that plaintiff may
even reap the benefit of this difference by advertising its
product as containing "real milk."
Defendant also asserts that the 70¢ price differential between
Class II milk and Class IV milk is supported by a rational
basis. The differential is designed to approximate the
difference in value of fluid milk used to classify Class II
products and the alternative to fluid milk used to manufacture
such products, such as dried milk products. The 70¢ figure,
therefore, is "an estimate of the cost of drying condensed milk
and re-wetting the solids to be used in Class II products." 64
Fed. Reg. 16104. This analysis is logical and scientific, and
thus satisfies the minimal requirements of rational basis
This Court agrees with defendant and finds that there is
clearly a rational basis for the different milk classifications
and the price differential. Congress may adopt an economic
policy which is tailored to dealing with the majority of
situations, even though the policy may disadvantage a few. See
e.g., Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125
L.Ed.2d 257 (1993) ("[C]ourts are compelled under rational-basis
review to accept a legislature's generalizations even when there
is an imperfect fit between means and ends."). The
Appropriations Act does not violate the Due Process Clause of
the Fifth Amendment.
For the foregoing reasons, it is hereby ORDERED that
defendant's motion to dismiss is GRANTED and plaintiffs motion
for summary judgment is DENIED; and it is
FURTHER ORDERED that, in accordance with the Court's March
30, 2001 Order, the Clerk of the Clerk shall enter Final
Judgment for the defendant and against the plaintiff.