Today at SCOTUS: Occupational Licensing Abuse on Trial
The U.S. Supreme Court will hear oral argument today in the case of North Carolina Board of Dental Examiners v. Federal Trade Commission. At issue is whether that state board engaged in illegal anticompetitive practices when it used its powers to drive non-dentists from the teeth-whitening market.
The matter arose in 2006 when the state board, purportedly acting in a public health capacity, started cracking down on non-dentists who offered teeth-whitening services. But on closer examination, this action turned out to be the opposite of a legitimate government regulation. In fact, the board had a clear conflict of interests. Six of its eight members are licensed practicing dentists (elected to the board by other practicing dentists), meaning that the board's controlling majority had a direct financial stake in preventing outsiders from entering the teeth-whitening market and competing for customers. "At the end of the day," declared the U.S. Court of Appeals for the 4th Circuit, which ruled against the state board in March 2014, "this case is about a state board run by private actors in the marketplace taking action outside of the procedures mandated by state law to expel a competitor from the market."
Today's case also represents a welcome departure from the Court's recent habit of dodging occupational licensing disputes. For example, in 2012 the Court turned down a legal challenge to Florida's preposterous law forbidding the unlicensed practice of interior design. Despite the fact that Florida's own attorney general's office admitted that "neither the defendants nor the state of Florida have any evidence that the unregulated practice of interior design presents any bona fide public welfare concerns," the Supreme Court refused to get involved. Similarly, in 2004 and again in 2013, the Court refused to settle whether or not "dishing out special economic benefits to certain in-state industries" (in the approving words of the 10th Circuit) justified a state's occupational licensing scheme.
The North Carolina Board of Dental Examiners should get no such pass. The Supreme Court should affirm the 4th Circuit and rule against the abusive state agency.