Supreme Court

Supreme Court Rules for 'Free Market' Over 'Self-Dealing' State Licensing Board in Teeth-Whitening Case

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The U.S. Supreme Court ruled 6-3 on Tuesday against the North Carolina State Board of Dental Examiners, holding the state board guilty of engaging in "self-dealing" anti-competitive practices aimed at driving non-dentists from the state's lucrative teeth-whitening market.

The case, known as North Carolina State Board of Dental Examiners v. Federal Trade Commission, originated in 2006 when the state board began sending cease-and-desist letters to non-dentists who provided teeth-whitening services to paying customers. But because six of the board's eight members were licensed practicing dentists with a direct financial stake in preventing outside competition, the board's actions were deemed illegal under federal antitrust law. "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."

Credit: C-SPAN

The Supreme Court upheld that verdict yesterday. "Active market participants cannot be allowed to regulate their own markets free from antitrust accountability," declared the majority opinion of Justice Anthony Kennedy. To rule otherwise, Kennedy added, would be to ignore the "risks licensing boards dominated by market participants may pose to the free market."

Writing in dissent, Justice Samuel Alito argued that the risk of occupational licensing abuse was not the point. There is "nothing new," Alito wrote, about a state licensing board "serving the interests of dentists and not the public. Professional and occupation licensing requirements have often been used in such a way." The question for Alito was whether or not the Supreme Court had any business overriding the regulatory judgments made by this duly empowered state licensing board. He maintained that the Court did not. Yesterday's judgment, he complained, "diminishes our traditional respect for federalism and state sovereignty."

The problem with Alito's dissent, however, is that his approach would impose strict federal restrictions on private actors while turning a blind eye to a state board that has been captured by those same private actors and used to advance their own self-interested private agenda—which is clearly what happened here.

To be sure, Alito is right that the states possess broad authority to enact public health and safety regulations under our system of federalism. But that state power is not unlimited and those state regulations must serve a legitimate public health or safety purpose. In this case, the North Carolina dental board wielded public power on behalf of private gain. And that is precisely the sort of illegitimate state action that the Supreme Court should be guarding against.

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  1. You’ve got a purty mouth.

  2. The question for Alito was whether or not the Supreme Court had any business overriding the regulatory judgments made by this duly empowered state licensing board.

    “We’re not here to be a check on anything!”

    1. Not anything the government wants to do, anyway.

    2. This dissent reminds me of the majority opinion in Kelo.

      “As long as there is a ‘comprehensive plan’ for the takings, they’re A-OK. However, this court cannot and will not judge whether or not a plan is comprehensive, because this court cannot divine the intricacies of urban planning. Therefore we leave the judging of the plan to the experts who created it.”

    3. Regulatory capture.

    4. Every nominee for the SCOTUS should be asked this question:

      The 9th amendment states “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Can you name some of the rights retained by the people?

      Alito clearly sees none.

  3. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out. This is wha? I do……

    http://www.wixjob.com

    1. This what I do…I troll for suckers on Internet forums…wait, did I say that out loud?

  4. Wouldn’t it have been better to litigate this as a due process case, because there’s a denial of the right to a fair trial when a judge is a party in his own cause?

    1. I like that angle much better.

    2. One might make the same claim when legislators create laws restricting our freedoms, especially when people voluntarily would engage in such freedoms.

  5. This case involved whether state agencies fell under the federal FTC’s purview under federal anti trust law. It’ll be interesting to see what people here make of it, especially the state’s rights and anti antitrust crowd.

    1. Tough call, since neither the FTC nor NC State Board of Dental Examiners ought to exist.

    2. 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

      What’s the state’s rights problem, again?

      1. Then why didn’t the NC courts handle it, hmmm?

        1. Yeah, I’m not comfortable with the FTC’s expansion of its purview. It also likes to act to ban imports. (The dissent got in some shots at the FTC.)

          Seems like this sort of ended up being a nondelegation case, where the majority said that the legislature could have passed this directly, but leaving it up to a board composed of the self-interested was too much.

    3. Lesseethere …. why didn’t you stop beating your slave with that illegal gun for stealing your illegal pot? Is that about it?

      Idiot.

  6. NC’s been having a tough time lately. First they get smacked down for trying to silence a blogger who offered dietary advice, now this.

    1. NC’s been having a great team lately, having this decades old unconstitutional laws being struck down, you mean. Taxes also got rid of just about all the specialized deductions and the booklet was half the size this year.

      1. Well yeah. The people are having a great time. The government, not so much.

  7. And more good news:
    “Wisconsin Senate passes ‘right to work’ legislation”
    http://www.cnn.com/2015/02/26/…..index.html

    1. Yay. They go from UNIONS GOOD to UNIONS BAD.

      Looks like they skipped the UNIONS NOT GOVERNMENT BUSINESS choice.

      1. Well, I don’t think Wisconsin could repeal the NLRA entirely. It gives them restricted choices within that framework.

      2. Actually if it weren’t for government, people would be free to not join unions and still keep their jobs. Not only that, employers would be free to hire/fire at will for any reason (good or bad). And I’m all for it, having been an employee all my working life, and also having been a business owner part of that time as well.

  8. I just got paid usd6784 working off my laptop this month. And if you think that’s cool, my divorced friend has twin toddlers and made over usd 9k her first month. It feels so good making so much money when other people have to work for so much less. This is what I do,,,,,,
    http://www.work-mill.com

  9. Was Alito the only dissenting vote? When I read an article about a Supreme Court decision, I appreciate a breakdown – saves me having to go somewhere else to find out.

  10. “Active market participants cannot be allowed to regulate their own markets free from antitrust accountability,”

    Well, I guess pretty much every municipal government is illegal now.

    1. I was thinking something along the lines of “Yes, it’s important to maintain an arms-length distance between the regulatory body and the market participants via a team of well-paid lobbyists previously employed by the regulatory body”. You gotta dot your i’s and cross t’s when you’re capturing your market through regulation.

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