Supreme Court

A State Licensing Board Used Government Power for Self-Serving Private Gain? Justice Scalia Can't Believe It

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Federal law forbids private parties from engaging in anticompetitive conduct. But what happens when a state regulatory board is staffed by private market participants who use government power to push anticompetitive measures that advance their own economic interests? Does that also count as an antitrust violation?

The U.S. Supreme Court grappled with those questions on Tuesday when it heard oral argument in North Carolina Board of Dental Examiners v. Federal Trade Commission, a case arising from that board's efforts to prevent non-dentists from offering teeth-whitening services. Because six of the board's eight members are licensed practicing dentists with a direct financial stake in restricting entry to the teeth-whitening market, a lower court deemed the board's anticompetitive conduct to be illegal under federal law.

Arguing against the dental board before the Supreme Court on Tuesday was Deputy Solicitor General Malcolm Stewart, who began his remarks by describing the board's members as possessing "an evident self­-interest in the manner in which the dental profession is regulated and in regulations that might keep other people from competing with dentists."

Credit: Wikimedia Commons

Yet Justice Antonin Scalia dismissed the notion of a self-interested licensing board out of hand. "Do you really think that the financial interest of the individual members of the board is going to be significantly affected? Of each individual member of the board?" Scalia asked. "My goodness. I—I find that hard to believe."

Scalia should give the matter more thought. Better yet, he should devote careful attention to a friend of the court brief submitted in this case on behalf of 45 leading economists who urge the Supreme Court to take seriously the threat posed by occupational licensing abuse. "In the real world," the brief details, "occupational licensing boards routinely use government power to promote the private financial interests of their own members and licensees, rather than to promote any legitimate government interests."

I would also urge Scalia to find himself a copy of economist Walter E. Williams' pioneering 1982 book The State against Blacks, in which Williams reveals the myriad ways that state licensing boards harmed African-Americans who tried to break into such occupations as plumber and electrician. Sometimes those boards were acting out of pure racial animus—entrenched white workers who sat on the boards wanted to keep black workers out. But other times the boards were just seeing green. As Williams explains, once occupational licensing has restricted competition, "incumbent practitioners…can charge higher prices and hence have higher incomes as a result of their monopolized market."

One final point. In its March 2014 decision against the North Carolina Board of Dental Examiners, the U.S. Court of Appeals for the 4th Circuit observed, "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." Scalia should study that one too.

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  1. Fuck their financial interest. What about their social status bias?

    A board composed of dentists will be incredibly predisposed to think that dentists are incredibly important guys whose functions cannot be replaced.

    They will also be predisposed to instinctively reject any change that might reduce the social status of dentists by making what they do less special.

    Priests don’t make any money off transubstantiation. But I bet a board composed of priests would fight tooth and nail against a lay person claiming they could transubstantiate just as well as a priest.

    1. Priests don’t make any money off transubstantiation. But I bet a board composed of priests would fight tooth and nail against a lay person claiming they could transubstantiate just as well as a priest.

      They did – there were several wars fought over the matter between former Members of the College of Cardinals and people who rejected the need to interject clergy. I’m fairly sure one of them lasted thirty years or so.

      1. No protestants denominations believe in transubstantiation no matter who is serving the eucharist.

        1. Well my church strongly emphasizes transfiguralgestation. That’s totally a real thing and not fabricated bullshit with a technical sounding ring to it.

    2. This exactly. That is the point that Scalia misses. He either dishonestly or stupidly thinks that the board is going to be fair just so long as they personally don’t stand to get rich from their decisions. He completely misses the idea that Dentists could ever to act in the best interests of the guild at the expense of everyone else.

      This is another example of Scalia being a smart person who suffers from a genuine lack of experience and the common sense that comes with it. His infamous “the professionalism of law enforcement will prevent abuse” is another example of this. Scalia has spent his entire life in school and on the bench as part of the Con Law Priesthood. He thus often exhibits a very poor understanding of how the rest of the world actually works. This more than anything limits is ability to be a good justice. If only his parents had made him to put off law school for a few years to live in the real world, he and us would be a lot better off.

      1. Top. Men.

        And when a court has topmenitis, we are done with rule of law and back under rule of man.

        Jeebus, Scalia. First “new professionalism” and now this.

        In all seriousness, the difference between Dem-appointed Justices and Rep-appointed Justices is, well, not as great as advertised. Other than the Dem’s boner for sub rosa repeal of the 2A, its barely visible to the naked eye.

        1. Topmenitis? Did you just come up with that? I like it. I’m using it from now on.

      2. I was thinking the other day on why academics are so lefty, and it dawned on me (I am often late to the thinking game 🙂 that they have little contact with the outside world. Their workplaces interactions are with other academics and students. Compare that to, say, retail, where you meet all kinds of people, or plumbers, or even ordinary office workers, where sales people, technical, admin, and all ages meet and work together. Academics are so isolated, and then they have to brainwash all those ignorant pliable students …. no wonder they are so ignorant yet so full of themselves.

        1. That is exactly it. It is that and that they generally have huge egos and inflated sense of self importance. The ego and self importance stands in stark contrast to their actual importance to the world. In a market economy the people who matter are people who run businesses and make things, not faculty lounge intellectuals. This causes them to not only not understand how the world works but also be angry and bitter towards it for not recognizing their genius and instead letting all sorts of vulgar tradesman call the shots.

          Put all of that together and it is no wonder socialism is so appealing to them.

        2. I’m in the lumber business. You’d be hard pressed to find and industry more practical and less theoretical – and libertarian – than this one.

          Almost every single person involved in the production supply of our industry is conservative to libertarian. The only liberals in the industry are on the demand side and are, you guessed it, trying to force their nonsense “sustainability and green” requirements on the rest of us through legislation and LEEDS requirements in public buildings (coming soon to your house). If you’re not familiar with this nastily little scheme it requires builders to purchase materials only from “certified” suppliers. That means members of the certification cartels.

          They can’t get what they want through persuasion so they get their ideological fellow travelers and useful idiots in the legislature to codify the requirements that only they can supply.

    3. Scalia sucks my dick, my pussy, my epandrium, and my 45-chambered gizzard in more ways than Horatio can imagine, on Earth, or in Heaven! WHO in the Bloody Fuck appointed HIM to such a position where He & His Frickin’ Opinion is something that we have to bleed and die by? Can we replace these 9 bahstahds with some software, PLEASE?!?! We’d be MUCH better off!!!

  2. Why not? Scalia also gives deference to overbroad police powers because of “new professionalism”.

    1. My question is, has Scalia ever been in the real world? Was he born so entitled he’s never seen what goes on in the parks and grocery stores of America? Or has he just been away so long he’s forgotten?

  3. Presumably the members of the board are elected by members of the dental profession, all of whom have a financial interest in preventing others from competing with dentists. Thus even if the individual board members aren’t directly financially impacted, they have a political interest in staying on the board, and that interest is directly linked to the financial interests of dentists in general.

    1. Wha’….what? *bluff – bluster – pshaw*

      Why – I find that hard to BELIEVE, Hazel! Surely these good people wouldn’t be motivated by crass self interest!

      /Scalia

  4. I knew Scalia was stupid, but I didn’t think he was THIS stupid.

    These guys need to get out in the real world once in awhile….HAAAAAAAAAAAAAAAAAAAAHAHAHAHAHAHAHA! I know, I know…ain’t happenin’…

  5. “Welcome to the party, pal.”

  6. It’s like he has never even filed for a building permit ever.

    1. He’s a judge. They approve them onsite for federal judges.

      1. He’s a judge. They approve them onsite for federal judges.

        You’ve got it backwards; like saying the wine for communion with Christ is blessed onsite.

        Every municipality within 20 mi. of his house knows who owns the property and they chuckle at the slovenly contractors who call them up asking for a permit.

  7. I am not the biggest Scalia fan, but I’d bet he was being sarcastic.

    1. after reading the article(I know) I think I would agree with you, it seems to me that the justices often ask rhetorical questions and make statements to make a political point to their peers.

    2. I would hope so, but like I said above, he also believes in the “new professionalism” of the police.

    3. That is a fair point. Without being there and hearing exactly how he said it, it is impossible to tell for sure. But now that you say that, he may have been. We will find out when the decision comes down I guess.

    4. The problem with his sarcasm — which I’m personally finding tiring — is that it’s used both ways. You can’t tell if he’s sarcastic to support his position in a “fun” manner or whether it’s being used to imply those who disagree with him are idiots.

      I guess we’ll find out when the opinion is released.

      1. You can’t tell if he’s sarcastic to support his position in a “fun” manner or whether it’s being used to imply those who disagree with him are idiots.

        Can’t it be both?

    5. Have to agree with you on this one. His actual language looks pretty sarcastic, which I’m to understand is Scalia’s preferred form of humor. Moreover, whatever you want to say about him, Scalia isn’t a stupid guy.

    6. Since sarcasm, by definition, is not indicated in the original text, we must assume he is not.

      1. “Since sarcasm, by definition, is not indicated in the original text, we must assume he is not.”

        Why?

  8. Wasn’t Scalia the one who couldn’t understand what motivation police would have to signal their dog to indicate presence of drugs?

    1. After reading your comment if it’s true I rescind my comment made @ 10:37 in response to BO.

      1. I’m going to have to look it up, and if it is the case, I suppose it’s possible he was joking then. Though as I recall he didn’t rule like he was.

  9. How is it possible for this guy to have served on the court 28 years when he was only born last night?

    Does he really not believe that, or is he just pretending?

    1. He has only 6 years of non-government/academic work experience in his life. His law firm experience was Jones Day, one of the top corporate firms in the world, not exactly a street lawyer…

    2. It’s a common tactic of judges and the Supreme Court has deployed it more than once in defense of some nonsensical or tyrannical bit of legislation or use of government power.

      When confronted by rational criticism of something and no amount of sophistry can depense with it, the court refers to the criticism as “unpersuasive” or “unfounded speculation.” When confronted by naked tyranny and actual victims of that tyranny, they pass it over an “overwhelming state interest” or “more good than harm” statement.

  10. Well, I hope it’s 8-1. Fuck him.

  11. Scalia is getting annoying. He’s all over the place. While it is fun having him on “your” side, he’s just as likely not to be. His insulting sarcasm, belittling those who disagree with him as brain dead fools living in la-la land, is tiring.

    I’m not sure how he can even doubt that regulatory agencies are captured by the industries they’re meant to regulate, passing regulations and executing enforcement actions only intended to protect incumbent players. This dental board is only a blatantly obvious example. But in his world, this is unimaginable? Please, either he’s an effing fool or he’s been completely bought and paid for; I can think of no other option.

    1. I think John nails it above, he has never had to actually live in the real world and lacks knowledge of any experience outside of academia and the courts.

    2. He has a ginormous ego. I have heard him speak a couple of times. He is a funny guy and would probably make an entertaining dinner companion. That said he is sarcastic as hell and is a first rate know it all. Being one of those too, I am especially sensitive to sniffing out others of the species. Its okay to be a know it all if you have a decent amount of humility. Scalia, however, doesn’t. He honestly thinks he is just smarter and more fit to have opinions on things the us groundlings. It would be bad enough if he thought that about Constitutional Law. Scalia, however, thinks that about every subject. He is a great example of someone knowing just enough to be dangerous about everything.

      1. But, he’s one of our Top.Men.

  12. Scalia is a narcissistic, authoritarian asshole. He knows there is no reasoned justification for his fore-drawn conclusion so he just pretends to believe this shit.

  13. Yet Justice Antonin Scalia dismissed the notion of a self-interested licensing board out of hand. “Do you really think that the financial interest of the individual members of the board is going to be significantly affected? Of each individual member of the board?” Scalia asked. “My goodness. I?I find that hard to believe.”

    Next thing you know, somebody will try to claim police officers who know they will never be held accountable for their misdeeds will actively disregard the Constitutional rights of the citizenry.

  14. Is this similar to Dr. Bonham’s case, when Judge Coke suggested that non even Parliament could authorize someone (in this case a medical board with licensing and enforcement powers over physicians) to be a judge in his own cause?

    I know this is under the antitrust statute, but why not a due process question?

  15. It’s a good thing there’s no real world implications of Scalia’s credulity.

    1. of based on

    2. I know, God forbid people rot in jail for life because he thinks it’s stupid for them to have an innocence hearing to examine evidence the state hid for years.

  16. “My goodness. I?I find that hard to believe.”

    Sounds sarcastic to me.

    But then, Poe’s Law.

  17. And dare I ask what’t the link to interstate commerce here?

    1. It involves money which at some point traveled across state lines? I think that’s roughly the standard these days.

      1. If I blow my nose, it will affect the inter-state commerce in booger rags, therefor Guv-Mint Almighty MUST be allowed to tell me when I can, and cannot, honk on my schnonker… THAT, my friend, is the going standard!

  18. If Scalia were to be hit by a bus, I doubt the Constitutional-Scholar-in-Chief could find somebody substantively worse to replace him.

    1. Eric Holder is on the line and would like to speak with you about that.

    2. Hopefully he wouldn’t get pregnant.

    3. You underestimate Obama if you don’t think he could find someone lots worse.

  19. OT: health insurance premiums going up by 20% next year.

    Thanks to Obamacare, this is something every one of my company’s tens of thousands of employees will blame, rightly or not, on Democrats.

    1. Your premiums won’t go up. However, your current plan will be canceled and the cheapest Legally Acceptable plan will cost 20% more than you’re paying now.

      COMPLETELY DIFFERENT. I wouldn’t expect someone with substandard coverage to understand.

  20. Whenever libertarians point to Government Oppressing the Black Man Blacks see a much simpler solution, just cry about racism, take over the government(in alliance with other aggrieved groups), and then use it to discriminate against White people.

  21. but I’d bet he was being sarcastic.

    Why? Do you seriously believe Scalia is some sort of closet libertarian? That he believes in economic freedom? You can bet your pimply ass he is a hard core believer in professional licensing. If you let store clerks whiten teeth, the next thing you know, the lousy unwashed masses will question the need for a gatekeeping priesthood of lawgivers. And you know THEY never subjugate justice to personal or professional gain.

    1. In fairness I think Bo just believes Scalia is an asshole prone to dismissing anything he doesn’t like with sarcasm. And I can’t really argue with him there.

      Scalia might have been being sarcastic. You don’t have to be a Libertarian to see that licensing boards act to protect their guild

  22. Justice Scalia remembers the old way, where if you want to allege in a court of law that someone is doing something wrong, you have to have convincing evidence for it.

  23. “But he’s so SMART! Smarter than you!”

    Bullshit. Anybody who’s so completely out to lunch on how the world actually works isn’t smart, he’s a fucking retard. I could possibly accept “idiot savant” or “bicycling monkey” but that’s as far as I’m willing to go.

    1. There is “smart” and there is “clever”.

  24. So Scalia is unfamiliar with the entire history of guilds?

  25. Scalia is so awful. I have a hard time deciding if I hate him more than Roberts and the Wise Latina. It’s such a toss up

    1. I’ve actually been pleasantly suprised by Sotomayor. She’s the best justice on the court when it comes to Fourth Ammendment and prosecution/police power issues.

  26. For a constitutionalist, Scalia sure hates the constitution.

    1. He claims to be an originalist, not the same thing. Though he’s oddly blind to originalism when it is a particularly politically unpopular stance or goes against his moral beliefs.

      1. He’s neither a constitutionalist nor an originalist. He’s maddeningly inconsistent on his legal thinking and application of precedent.

        He’s no idiot, but he’s fickle, which is rarely a good quality in a judge.

  27. I say let’s let him vote before we crucify him… The justices often answer questions oddly to force the lawyers to expand on a concept. Let’s hope that was the case this time..

  28. I think Scalia is accused of bias often enough that he probably bristles at seeing it thrown around. But even if you assume all the dentists are people of integrity working in good faith, a board of a bunch of dentists will see the world a certain way and be subtly driven to think that they possess the critical skills people need. It doesn’t take bad faith, which is why bias is such a problem.

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