Supreme Court declines to answer important economic liberty question

Today, the United States Supreme Court denied review in Sensational Smiles, LLC. v. Mullen. PLF, with the Cato Institute, filed a brief asking the Court to take up the case. As a result, the question remains open as to whether protecting favored groups from economic competition is a legitimate government interest, and constitutional.

The case involved a group of Connecticut teeth-whiteners who were ordered to stop serving their customers because they were not licensed dentists. In response, Sensational Smiles, a company that provides teeth-whitening services, sued because they believed the requirement to become fully licensed dentists before being allowed to offer teeth-whitening was irrational. After all, the risks associated with teeth-whitening are minimal, and anyone can buy a simple kit in their local pharmacy to administer to themselves at home.

Rather than protecting the public from harm, the real story is that licensed dentists complained about the competition from teeth-whitening companies and successfully lobbied the legislature to shut them down. Unfortunately, the 2nd Circuit endorsed this self-serving use of the law as rational and constitutional. Calling legislative picking of winners and losers “politics,” the court upheld bare economic protectionism under the rational basis test.

The 2nd Circuit’s decision enlarged the already existing circuit split on the question, and the Supreme Court’s denial of review only serves to continue the confusion among lower courts on the rational basis test’s application to cases involving challenges to economic regulations. So, for now, protections for entrepreneurs who lack clout in state legislatures largely depends on geography, and the need for clarity on the important question of whether the law exists to protect the general public or discreet interest groups remains.