Credit: OZinOH / Foter.com / CC BY-NC
Today the U.S. Supreme Court declined to intervene in a case asking whether state governments may enact "laws and regulations whose sole purpose is to shield a particular group from intrastate economic competition." By refusing to hear arguments in the case of Sensational Smiles, LLC v. Mullen, the Supreme Court left standing a lower court judgment that explicitly recognizes "economic favoritism" as a legitimate government interest.
At issue in Sensational Smiles is a regulatory scheme promulgated by the Connecticut Dental Commission that forbids non-dentists from shining low-powered LED lights into the mouths of paying customers while those customers sit in chairs and use teeth-whitening kits at places like beauty salons and mall kiosks. Violation of this rule is a felony punishable by up to five years in jail or $25,000 in fines.
Connecticut claims its regulation is necessary to protect public health and safety. But the evidence says otherwise. Bear in mind that it's perfectly legal (not mention perfectly safe) in Connecticut to use teeth-whitening kits in conjunction with low-powered LED lights in the hopes of achieving a brighter smile. It's only a crime when non-dentists charge people for assisting them in this otherwise permissible activity. What's really going on here is that the state's Dental Commission adopted a special-interest rule to protect the state's dental lobby from unwelcome economic competition.
Regrettably, the U.S. Court of Appeals for the 2nd Circuit saw nothing wrong with that. "Even if the only conceivable reason for the LED restriction was to shield licensed dentists from competition," the 2nd Circuit declared in a July 2015 decision, "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 declared. "We call this politics."
Other federal circuits have a different word for it. In 2002, for instance, the U.S. Court of Appeals for the 6th Circuit explicitly rejected "economic protectionism" as a legitimate government interest. The U.S. Court of Appeals for the 5th Circuit ruled likewise in 2013.
Yet despite this clear circuit split, and despite strong evidence that Connecticut was acting in an illegitimate fashion, the Supreme Court refused to get involved. The protectionist Connecticut rule gets to remains the books while the Supreme Court remains a passive observer in the nationwide legal battle over the proper reach of government regulatory power.
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