Suzanimal
07-27-2015, 11:07 AM
Could the government prohibit LeBron James from playing professional basketball simply to put more money in the pockets of less talented athletes?
Absolutely, said the Second Circuit Court of Appeals, in a surprising — and appalling — decision last week, upholding a nakedly anticompetitive restriction on non-dentist teeth-whiteners in Connecticut. The decision deepens a split between the federal circuits concerning the constitutionality of economic protectionism — a split that cries out for resolution by the Supreme Court.
The Background
In 2011, the Connecticut Dental Commission issued a ruling that only licensed dentists were permitted to provide certain teeth-whitening procedures. Non-dentist teeth-whiteners were threatened with up to $25,000 in fines and five years in jail per customer.
Tasos Kariofyllis and Steve Barraco, co-owners of Sensational Smiles LLC, brought suit, arguing that this prohibition (like similar prohibitions in other states) does nothing to promote the state’s legitimate interests in public health and safety; instead, the prohibition is plainly designed to protect dentists from having to compete with cheaper, more convenient non-dentist teeth-whiteners.
The parties agreed that only one rule applied to Sensational Smiles — a rule stating that only licensed dentists can shine an LED lamp at the mouth of a customer during a teeth-whitening procedure. These lights are no more powerful than a household flashlight and it is perfectly legal to make these lights available for customers to position in front of their own mouths.
The Ruling
Writing for himself and another judge on the Second Circuit panel, Senior Judge Guido Calabresi conceded that the would-be teeth-whiteners “forcefully argue[d] that the true purpose of the Commission’s LED restriction is to protect the monopoly on dental services enjoyed by licensed dentists.”
However, he concluded that a “simple preference for dentists over teeth-whiteners” on the government’s part would be a “rational” justification, even if the challenged rule was neither meant to nor actually did anything to protect public health. “Even if the only conceivable reason for the LED restriction was to shield licensed dentists from competition,” explained Calabresi, the rule would stand.
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http://fee.org/anythingpeaceful/detail/federal-court-rules-naked-government-favoritism-is-constitutional
Absolutely, said the Second Circuit Court of Appeals, in a surprising — and appalling — decision last week, upholding a nakedly anticompetitive restriction on non-dentist teeth-whiteners in Connecticut. The decision deepens a split between the federal circuits concerning the constitutionality of economic protectionism — a split that cries out for resolution by the Supreme Court.
The Background
In 2011, the Connecticut Dental Commission issued a ruling that only licensed dentists were permitted to provide certain teeth-whitening procedures. Non-dentist teeth-whiteners were threatened with up to $25,000 in fines and five years in jail per customer.
Tasos Kariofyllis and Steve Barraco, co-owners of Sensational Smiles LLC, brought suit, arguing that this prohibition (like similar prohibitions in other states) does nothing to promote the state’s legitimate interests in public health and safety; instead, the prohibition is plainly designed to protect dentists from having to compete with cheaper, more convenient non-dentist teeth-whiteners.
The parties agreed that only one rule applied to Sensational Smiles — a rule stating that only licensed dentists can shine an LED lamp at the mouth of a customer during a teeth-whitening procedure. These lights are no more powerful than a household flashlight and it is perfectly legal to make these lights available for customers to position in front of their own mouths.
The Ruling
Writing for himself and another judge on the Second Circuit panel, Senior Judge Guido Calabresi conceded that the would-be teeth-whiteners “forcefully argue[d] that the true purpose of the Commission’s LED restriction is to protect the monopoly on dental services enjoyed by licensed dentists.”
However, he concluded that a “simple preference for dentists over teeth-whiteners” on the government’s part would be a “rational” justification, even if the challenged rule was neither meant to nor actually did anything to protect public health. “Even if the only conceivable reason for the LED restriction was to shield licensed dentists from competition,” explained Calabresi, the rule would stand.
...
http://fee.org/anythingpeaceful/detail/federal-court-rules-naked-government-favoritism-is-constitutional