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.