Today at SCOTUS: Occupational Licensing Abuse on Trial

The U.S. Supreme Court will hear oral argument
today in the case of North Carolina Board of Dental Examiners
v. Federal Trade Commission. At issue is whether that state
board engaged in illegal anticompetitive practices when it used its
powers to drive non-dentists from the teeth-whitening market.

The matter arose in 2006 when the state board, purportedly
acting in a public health capacity, started cracking down on
non-dentists who offered teeth-whitening services. But on closer
examination, this action turned out to be the opposite of a
legitimate government regulation. In fact, the board had a clear
conflict of interests. Six of its eight members are licensed
practicing dentists (elected to the board by other practicing
dentists), meaning that the board’s controlling majority had a
direct financial stake in preventing outsiders from entering the
teeth-whitening market and competing for customers. “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.”

Today’s case also represents a welcome departure from the
Court’s recent habit of dodging occupational licensing disputes.
For example, in 2012 the Court turned down a legal challenge to
Florida’s
preposterous law forbidding the unlicensed practice of interior
design. Despite the fact that Florida’s own attorney general’s
office admitted that “neither the defendants nor the state of
Florida have any evidence that the unregulated practice of interior
design presents any bona fide public welfare concerns,” the Supreme
Court refused to get involved. Similarly, in 2004 and again in
2013, the Court refused to settle whether or not “dishing out
special economic benefits to certain in-state industries” (in the

approving words of the 10th Circuit) justified a state’s
occupational licensing scheme.

The North Carolina Board of Dental Examiners should get no such
pass. The Supreme Court should affirm the 4th Circuit and rule
against the abusive state agency.