George Leef’s latest column for Forbes focuses on the U.S. Supreme Court’s recent ruling against the N.C. dental board’s teeth-whitening restrictions.
If the North Carolina General Assembly had ever directed the Board to reserve the business of teeth whitening for licensed dentists only, the case would have been different. But it had never done anything to approve the Board’s aggressive campaign to scare away others from competing against dentists, so there really was no state action involved, and therefore no immunity.
Justice Kennedy also brushed off the desperate, laughable claim made by the state that if the FTC prevailed, that would “discourage dedicated citizens from serving on state agencies that regulate their own occupation.” Kennedy’s retort: “This holding is not inconsistent with the idea that those who pursue a calling must embrace ethical standards that derive from a duty separate from the dictates of the State.” Indeed so. Dentists will still be willing to serve on the Board even if they are not allowed to use their power for the unethical purpose of preventing competition.
Justice Alito wrote a dissenting opinion, joined by Justices Scalia and Thomas. He argued that the precedent North Carolina relied on, Parker v. Brown, applied in this case; even though the Dental Board was acting in a way that prevented competition, because it was a governmental agency, it was shielded against antitrust action.
Sometimes the “conservative” wing of the Court is just too conservative. Standing on the Parker precedent would allow state agencies composed of practitioners in a field to continue to use their power for anticompetitive ends that are neither in the public interest nor approved by elected officials in the state. There is simply no good in that.
Not long after the Court issued its rebuke to the Dental Board, a report by the State Auditor found that it had not been doing its true job of protecting public health very well because it had issued sedation permits to dentists before inspecting their facilities and had not conducted compliance checks to ensure that practitioners can safely deliver anesthesia.
What a double-whammy for the administrative state: stop stifling competition and instead, do your job.
