Supreme Court

SCOTUS Asked to Decide Whether Special-Interest 'Economic Favoritism' Counts as Legitimate Government Interest

Connecticut teeth-whitening monopoly lands at Supreme Court.

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Credit: Phil Roeder / Flickr.com / CC-BY

In July the U.S. Court of Appeals for the 2nd Circuit upheld a Connecticut regulation "whose sole purpose is to shield a particular group from intrastate economic competition." Last week the Institute for Justice, a public interest law firm, petitioned the U.S. Supreme Court to review that questionable ruling. The Supreme Court should take the case.

At issue in Sensational Smiles, LLC v. Mullen is a regulatory rule promulgated by the Connecticut Dental Commission forbidding non-dentists from shining low-powered LED lights into the mouths of paying customers during the course of teeth-whitening services. Violation of this rule is a felony punishable by up to five years in jail or $25,000 in fines.

The state claims that its rule is essential to protecting the health and safety of the public. But that rationale falls apart under scrutiny. Why? Because it's legal in Connecticut to buy teeth-whitening kits and LED lights (the equivalent of household flashlights), and then to use those two products together in the hopes of achieving a brighter smile. Sensational Smiles (and other businesses like it) basically replicated that legal activity in their shops. The only "crime" was that non-dentists happened to help some customers place the LED lights in front of the customers' mouths. In short, the state's overreaching actions served no conceivable public health or safety purpose. The 2nd Circuit got it wrong.

In its July ruling, the 2nd Circuit came close to admitting the flimsiness of the state's public-health stance. But then the court upheld the regulation anyway. "Even if the only conceivable reason for the LED restriction was to shield licensed dentists from competition," the 2nd Circuit declared, "economic favoritism" is a sufficient justification all by itself. "Much of what states do is to favor certain groups over others on economic grounds," the court said. "We call this politics."

That judgment is in direct conflict with comparable rulings by the 5th Circuit, the 6th Circuit, and the 9th Circuit, all of which have flatly rejected the dangerous notion that naked economic protectionism is a legitimate government interest. As the 5th Circuit observed in March 2013, "The great deference due state economic regulation does not demand judicial blindness to the history of a challenged rule or the context of its adoption nor does it require courts to accept nonsensical explanations for regulation."

The 2nd Circuit should have heeded this excellent advice. Instead it gave its stamp of approval to a special-interest scheme that does nothing to protect the health or safety of the public while doing everything to protect a politically favored industry from healthy competition. That flawed judgment deserves swift and fatal review by the U.S. Supreme Court.

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72 responses to “SCOTUS Asked to Decide Whether Special-Interest 'Economic Favoritism' Counts as Legitimate Government Interest

  1. Yeah, this is an easy call.

    Kelo was decided on this very premise- even though the particulars were different.

    It was in a ‘government interest’ to develop the area to increase tax revenues, and in doing so, they favored a certain industry (biotech).

    It seems that in this day and age, this is one of the central things governments do. Take it away, and everything other than the basic core functions of government will function. Which is racist.

    1. This. The only thing that matters with regards to this case is that the government didn’t come up with a better excuse than the debunked issue of public safety. But a ton of regulations stand based on irrational public safety issues.

      Even if the Supreme Court rules correctly here, which there is no guarantee they will given its current make-up, it’s a very small victory if not entirely useless.

    2. Kelo was different. The state argued (and the court accepted) that the property seizures were part of a wider plan intended to increase economic growth, which is a legitimate govt interest, and that the benefit to private parties receiving the seized properties was incidental to the plan. It was plausible that New London was not simply using its coercive power to benefit a favored interest which reliably donates to campaigns, which is the only conclusion in this case.

  2. whose sole purpose is to shield a particular group from intrastate economic competition

    Under current SCOTUS doctrine, there really isn’t such a thing as purely intrastate anything.

    This particular rule is clearly “affecting” the interstate market in the tooth-whitening gizmos.

    1. Light from stars billions of miles away eventually reaches Earth, so I think we can assume light from an LED in Connecticut could conceivably find its way to New York or Rhode Island.

      1. Also, those teeth are going to eventually cross state lines… at least around the Holidays.

        1. Doesn’t even have to do that. The wickard ruling is a most egregious error.

  3. In the LED teeth-whitening case exposes the ridiculousness of “rational basis” review: it is way way way too deferential to the government. If there is some somewhat conceivable reason why a law/regulation was passed — and as long as the regulation isn’t otherwise unconstitutional — it will be upheld (even if that reason was formulated after the law/reg was passed).

    1. Still seems to violate equal protection.

      1. I don’t see it. This seems to prohibit anyone, gay or straight, from doing teeth-whitening unless they are a dentist.

        1. Teeth whitening isn’t dentistry.

          It discriminates against non-dentists, which I happen to be.


            1. Q: What’s wrong with lawyer jokes?
              A: Lawyers don’t think they’re funny and other people don’t think they’re jokes.

              1. I think some lawyer jokes are funny, most of them a pretty lame though.

                1. + lawyers shingling a roof

          1. Are non-dentists a protected class?

              1. They’ll even get their own schools.

                1. +1 Anti-Dentite

      2. Still seems to violate equal protection.

        Nobody needs more than 2500 mw/cm2 of 460-510 nm radiation!

        #whiteteethmatter

  4. Violation of this rule is a felony punishable by up to five years in jail or $25,000 in fines.

    Are you fucking kidding me?

    1. It’s
      For
      The
      Children

      1. Of
        Dentists.

        [FIFY]

    2. A toothless regulation helps no one.

  5. Violation of this rule is a felony punishable by up to five years in jail or $25,000 in fines.

    WTF?

    1. I will 3rd the wtf.

      Seems perfect for jury nullification.

      1. I can walk up to somebody and knock their teeth out with a closed fist (without being a licensed dentist!!!) and plead it down to probation and anger management.

        However, if I consensually shine an LED light in someone’s mouth….

        1. shine an LED light in someone’s mouth…

          Is that what you tell her it is?

          1. Her?

            It’s all about the thrill of getting away with it. It doesn’t matter who the victim is.

            Unless it’s Epi’s mom. That’s a twofer.

      2. Rational basis review, because the Government can never get it wrong.

        1. It’s like the Divine Right of Kings. Only now the rulers get their power from Almighty Democracy instead. This is a government by and for the People, so by definition, everything the Government does is for the benefit of the People and therefore is fully justified.

    2. You really need your punishment to have some bite.

      1. Do you need us to post more WTF comments so you can come up with more puns?

        1. White Teeth Forever!

  6. I just want to be able to pump my own gas in New Jersey. Is that too much to ask?

    1. A gas-pumping license would ensure the public that you have the necessary skills, and are taking appropriate safety precautions. Because the children.

      1. I’ve been successfully pumping gas since I was about 8 years old. Now, I know the average Jersey driver is dumb, but dumber than an 8 year old?

    2. It is in Oregon.

      1. That’s the other state with this ridiculous rule. I couldn’t remember. I’m going to call it Left Jersey from now on.

        1. The town of Milford, Mass, also has an ordinance forbidding self-serve.

          1. Huh-huh, MILFord, huh-huh.

    3. Do you have any idea how dangerous that is??

      1. If there is anything that this horrible tragedy can teach us, it’s that a male model’s life is a precious, precious commodity. Just because we have chiseled abs and stunning features, it doesn’t mean that we too can’t not die in a freak gasoline fight accident.

      2. If there is anything that this horrible tragedy can teach us, it’s that a male model’s life is a precious, precious commodity. Just because we have chiseled abs and stunning features, it doesn’t mean that we too can’t not die in a freak gasoline fight accident.

  7. In July the U.S. Court of Appeals for the 2nd Circuit upheld a Connecticut regulation “whose sole purpose is to shield a particular group from intrastate economic competition.”

    it’s becoming apparent that the 2nd Circuit is quite the useless entity.

    1. Worse than useless. It’s wasting ink and paper.

  8. That judgment is in direct conflict with comparable rulings by the 5th Circuit, the 6th Circuit, and the 9th Circuit, all of which have flatly rejected the dangerous notion that naked economic protectionism is a legitimate government interest.

    So the actual purpose of the Interstate Commerce Clause is moot, while it serves as a general Enabling Act for the feds.

  9. “Much of what states do is to favor certain groups over others on economic grounds,” the court said. “We call this politics.”

    Finally, some straight talk.

  10. I don’t call it a woodchipper, I call it an economic favoritism device.

  11. We call this politics.

    Seriously? That’s what they went with?

    1. BFYTW was already taken by the Obama Administration.

  12. I don’t think this is so clear cut. States, as permitted by the supreme court, constantly engage in economic favoritism. Whole industries depend on it. The 2nd Circuit opinion points out the difficulty of deciding whether a regulation responds to a “legitimate” public interest or is only protectionist in nature. These will and do overlap.

    Sure it sounds nice if legislatures are forbidden by courts to enact regulations that seem only to serve the financial motives of a private interest. But, as the opinion also points out, it’s easy enough to find a public interest in there somewhere, and it’s just as easy for a court to poke around and find improper favoritism.

    That opinion is actually punctuated by a states’ rights argument. “Choosing between competing economic theories is the work of state legislatures, not of federal courts.” Who’s the judiciary to say that a state cannot believe that even pure naked protectionism is serving the public? It does in fact seem to be a prevailing economic model in this country.

    1. So here’s Tony arguing for big business in government to get their fair share. Stay tuned for the next episode where Tony bemoans corporate welfare.

      Here’s a hint Tony if it’s easy enough to find a public interest somewhere it just depends who has done the best lobbying then it probably isn’t something that should be decided by government AT ALL.

      1. Courts are part of government. The question to me is whether courts or the people’s representatives get to make the policy.

    2. Pure naked protectionism violates equal protection. If it’s wrong for the government to offer marriage benefits to only straight couples, then why is it ok for them to offer certain benefits (such as the right to perform tooth whitening services) to only dentists? I see no significant difference. If equal protection means regulations and tax benefits must be neutral, the government cannot craft regulations that arbitrarily favor one group over another. They must have some compelling rationale, such as pubic safety, to justify it.

    3. Tony wants infinite and arbitrary for the government.

      Well I am *shocked* I tell you, simply *shocked*.

  13. Another opportunity for Roberts to bend over.

  14. “Much of what states do is to favor certain groups over others on economic grounds,” the court said. “We call this politics.”

    We used to call it corruption.

  15. “Much of what states do is to favor certain groups over others on economic grounds,” the court said. “We call this politics.”

    I suspect this judge would gum up a woodchipper.

    1. Sacrifices must be made.

  16. “We call this politics.”

    We sure as hell don’t call it Rule of Law.

  17. This is the medical mafia at it’s most innocuous.

    Usually they’re mugging you for your health or your life – this time it’s just shiny white teeth. Get upset about something real some time.

    1. First they come for your teeth. Then a kidney, or a lung and pretty soon they want livers and hearts.

  18. So, if my wife is whitening her teeth,then happens to ask me to look in her mouth. If I use a LED flashlight…..my god!!

  19. OK, so let me get this straight. The Connecticut law in question only applied to dentists in Connecticut, and the federal court rightly judged that it was none of the feds’ business, and Reason is saying that actually it is the job of the federal courts to strike down state laws that only affect state residents just because they are economically unsound? Just more evidence that Reason is flying off the rails in their zealotry for expanded federal powers. I guess we should just abolish state governments completely and centralize all power in Washington. Heck, why stop there? Why not abolish the US and establish a world government?

    Libertarianism should not be bought at the price of sovereignty.

  20. Now all we need to bring it full-circle is a liberal citing this government-enforced monopoly as an example of free market failure and calling for even more regulation of the industry…

  21. 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.buzznews99.com

  22. White Teeth Matter.

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