494
Souter, J., dissenting
Here, the AMAA's authorization of compelled advertising programs is so random and so randomly implemented, in light of the Act's stated purposes, as to unsettle any inference that the Government's asserted interest is either substantial or even real. First, the Act authorizes paid advertising programs in marketing orders for 25 listed fruits, nuts, vegetables, and eggs, but not for any other agricultural commodity. See 7 U. S. C. § 608c(6)(I).8 The list includes onions but not garlic, tomatoes but not cucumbers, Tokay grapes but not other grapes, and so on. The selection is puzzling. The only thing the limited list unambiguously shows is that a need for promotional control does not go hand-in-hand with a need for market and economic stability, since the authorization for marketing orders bears no such narrow restriction to specific types of produce. But no general criterion for selection is stated in the text, and neither Congress nor the Secretary has so much as suggested that such a criterion exists. Instead, the legislative history shows that from time to time Congress has simply amended the Act to add particular commodities to the list at the request of interested producers or handlers, without ever explaining why com-8 Section 608c(6)(I) currently provides that marketing orders may include terms "[e]stablishing or providing for the establishment of production research, marketing research and development projects designed to assist, improve, or promote the marketing, distribution, and consumption or efficient production of any such commodity or product, the expense of such projects to be paid from funds collected pursuant to the marketing order: Provided, That with respect to orders applicable to almonds, filberts (otherwise known as hazelnuts), California-grown peaches, cherries, papayas, carrots, citrus fruits, onions, Tokay grapes, pears, dates, plums, nectarines, celery, sweet corn, limes, olives, pecans, eggs, avocados, apples, raisins, walnuts, tomatoes, or Florida-grown strawberries, such projects may provide for any form of marketing promotion including paid advertising and with respect to almonds, filberts (otherwise known as hazelnuts), raisins, walnuts, olives, and Florida Indian River grapefruit may provide for crediting the pro rata expense assessment obligations of a handler with all or any portion of his direct expenditures for such marketing promotion including paid advertising as may be authorized by the order . . . ."
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