Today at SCOTUS: Occupational Licensing Abuse on Trial

Credit: Library of Congress

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.

Comments

[Free Society]

Today at SCOTUS: Occupational Licensing Abuse on Trial

All occupational licensing is abuse. Just abolish that entire prerogative of government already.

[The Late P Brooks]

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.

It’s not the Court’s job to protect the people from the adverse results of their political decisions. Judicial deference

[Jerryskids]

It’s not the Court’s job to protect the people from the adverse results of their political decisions. Judicial deference.

I strongly suspect that is going to be the nut of the decision but SCOTUS will take 160 pages to say it. If the regulatory body is constitutional, SCOTUS is going to say that it’s up to the voters to keep a check on what they’re doing. As a voter, I vote for a short rope and a tall lamppost.

[Anonymous Coward]

It’s not the Court’s job to protect the people from the adverse results of their political decisions.

Oliver Wendell Holmes Jr. rises from the depths of Tartarus to torment the American people once more.

[Malvolio]

Is that sarcasm? Jeez, I hope so. In fact, the Court’s only job is to protect the people from the adverse results of their political decisions.

[Joec578]

That was Roberts’ reasoning in the Obamacare case. I don’t think this always holds true. Occupational license laws violate a person’s liberty to contract (yes, Lochner was correctly decided) that is protected by the Constitution. The Courts are obligated to strike down laws that violate the Constitution.

[AlgerHiss]

Every time this gaggle gets together, more often than not, government expands and the individual contracts.

[MamaLiberty]

It is not greed or hatred, or any of theother emotions or ideas that are usually blamed for the evils of society. Instead, most of the violence, theft, assault and murder in the world is the result of a mere superstition ? a belief which, though almost universally held, runs contrary to all evidence and reason
(though, of course, those who hold the belief do not see it that way). The “punch line” of this book is easy to express, albeit difficult for most people to accept, or even to calmly and rationally contemplate:

The belief in “authority,” which includes all belief in “government,” is irrational and self- contradictory; it is contrary to civilization and morality, and constitutes the most dangerous, destructive superstition that has ever existed. Rather than being a force for order and justice, the belief in “authority” is the arch-enemy of humanity.

http://www.freeyourmindaz.com/…..e-2011.pdf

[SQRLSY One]

But… But… BUT, your beliefs are WRONG, and MINE are GAWD-given!

Scienfoology Song? GAWD = Government Almighty’s Wrath Delivers

Government loves me, This I know,
For the Government tells me so,
Little ones to GAWD belong,
We are weak, but GAWD is strong!
Yes, Guv-Mint loves me!
Yes, Guv-Mint loves me!
Yes, Guv-Mint loves me!
My Nannies tell me so!

GAWD does love me, yes indeed,
Keeps me safe, and gives me feed,
Shelters me from bad drugs and weed,
And gives me all that I might need!
Yes, Guv-Mint loves me!
Yes, Guv-Mint loves me!
Yes, Guv-Mint loves me!
My Nannies tell me so!

DEA, CIA, KGB,
Our protectors, they will be,
FBI, TSA, and FDA,
With us, astride us, in every way!
Yes, Guv-Mint loves me!
Yes, Guv-Mint loves me!
Yes, Guv-Mint loves me!
My Nannies tell me so!

[Fist of Etiquette]

Today’s case also represents a welcome departure from the Court’s recent habit of dodging occupational licensing disputes.

If the people choose to regulate any given marketplace, who is SCOTUS to stand in the way of citizen ennui about unelected bureaucracy putting competition out of business?

[BiMonSciFiCon]

My Con Law professor thought economic protectionism was a legitimate use of government power. He clerked for one of the four “liberal” justices.

I think it’s wrong, but I wouldn’t be surprised to see this come down 8-1 or 7-2 in favor of the government (Thomas, maybe Alito and maybe Scalia). Hope I’m wrong.

[nicmart]

Small potatoes. Nothing short of the abolition of licensing will do.

[Bill Dalasio]

While I certainly don’t have any sympathy for the dentists in this case, can anyone explain the legal reasoning on this case? It strikes me as strange to say that the problem is the fact that many of the board members are in the industry with a conflict. Would this all have been okay if it were done by politicians or lawyers?

[LessIsMore]

+1

It’s infuriating when these types of things are argued on the wrong grounds – at best it gets you a battle won, at the expense of conceding more in the long-term war.

So often I observe the right struggles being fought on the wrong grounds. But that is not going to change. This should serve as a reminder that, if libertarians want to achieve anything, they are going to have to be willing to cooperate with temporary fellow-travelers on specific issues, even if libertarians disagree with them on everything else.

[wpamela80]

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[Byron]

Ooooohhhhhh USD86h? Ya don’t say?!?!

[Marktaylor]

Licensing is the reason doctors don’t murder us.

[San Diego]

Very funny!

[MarthaForthibu]

my friend’s sister makes $83 an hour on the laptop . She has been fired for ten months but last month her payment was $12435 just working on the laptop for a few hours
Find Out More. ???????????? http://www.jobsfish.com

[cbunix23]

I think you’re confusing interior design with interior decorating.

[Joec578]

Occupational licensing is just another example of corporate welfare. While it might not be a direct subsidy from taxpayers to the business, it is probably an even bigger giveaway to private interests than any direct subsidy that a government can dish out.

[Kefka]

An argument or perhaps better put as an accusation I often get regarding Libertarians is we just want to let big business have its way or a Libertarian government would be so weak it would not interfere in cases just such as this. People should be free to live there lives how they wish but they have the respect that same right in others.

Some group of citizens can’t just ban another group of citizens from doing what they want to do. Even if what they want to do might impact your business.