It is frequently said that, unfortunately, Americans disdain government. It is more usefully said that, unfortunately, they have abundant reasons for doing so. In coming days, the Supreme Court, by deciding to hear a case from Connecticut, can begin limiting a contemptible government abuse that the court’s passive deference to legislatures has encouraged.
The case concerns a minor economic activity, teeth whitening, but a major principle: Can a state limit Americans’ opportunities by restricting access to particular professions for no reason other than the enrichment of people entrenched in those professions? If the court refuses to hear the case, or if it hears it and decides it incorrectly, the “rational basis” test for judging government regulations of economic activities will no longer test anything — it will be completely severed from reasoning based on evidence.
Teeth whitening is a simple, safe procedure that people can perform on themselves with materials — a peroxide-based whitener and an LED “activating light” — bought without prescriptions. Or they can pay whitening salons to do it for them. The salons charge much less, often $150 or less, compared with $350 or more charged by dentists, many of whom regard the salons as competitors to be crushed by political power. Dentists are organized, salons are not, so at least 30 states have defended the strong by giving government-licensed dentists and dental hygienists a whitening monopoly. The Connecticut State Dental Commission, which is run by and for dentists, is empowered by law to write whitening regulations. They can subject salon operators to fines up to $25,000 or up to five years in prison — per customer — for the crime of giving customers assistance (applying the whitener, positioning the LED light in front of the customers’ mouths). This is pure rent seeking — a politically connected faction bending public power for its private benefit by crippling competitors.
The 10th U.S. Circuit Court of Appeals has complacently said of other people’s injuries from government favoritism: “While baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.” Echoing this in the Connecticut case, the 2nd Circuit has dismissively said, “Much of what states do is to favor certain groups over others on economic grounds. We call this politics.”
Yes, and if states violate, say, the First Amendment ban on abridging freedom of speech, that, too, would be politics — unconstitutional politics. Much of what deferential courts do is connive with state governments in the pretense that there is some explainable public good beyond transferring wealth to the politically connected. We call this dereliction of the judicial duty to enforce the Constitution’s Due Process and Equal Protection clauses.
The rational basis test already is extremely permissive. Courts administering it defer to government restrictions on economic activity whenever legislatures enunciate any reasons for the restrictions. And courts occasionally concoct reasons the legislatures have neglected to imagine. This vast judicial deference is a consequence of the Supreme Court distinguishing, without warrant in the Constitution’s text or history, between “fundamental” rights, infringements of which must survive strict judicial scrutiny, and economic rights that receive lackadaisical scrutiny.
In the Connecticut whiteners case, the 2nd Circuit held that courts can render summary judgment on behalf of the government even when plaintiffs in rational basis cases produce undisputed evidence that the challenged regulations cannot plausibly be said to advance governmental interests in public health or safety. The 5th, 6th and 9th Circuits, however, have held that naked economic protectionism — protecting an economic faction from competition — is not a legitimate governmental purpose. The Supreme Court must referee this dispute.
Connecticut’s whiteners are represented by the Institute for Justice, America’s foremost defender of economic liberty and of the entrepreneurial, often minority individuals whose progress up the ladder of social mobility is blocked by cartels such as Connecticut’s dentists.
The institute reduces the case to its essence: “It is unconstitutional to require someone to have eight years of higher education (college and dentistry school) before they can point a flashlight at someone’s teeth.” If the Supreme Court rejects this patent truth by allowing the 2nd Circuit’s conclusion to stand, the rational basis test will become a charade, which will effectively mean the end of judicial review of economic regulations. This will become an unlimited license for government to impede access to professions, reward rent seekers and punish consumers, thereby validating Americans’ deepening disdain for government.
George Will is a columnist for The Washington Post.