Sensational Smiles, LLC v. Mullen

Judge DRONEY concurs in a separate opinion.

GUIDO CALABRESI, Circuit Judge:

The question in this case is whether a Connecticut rule restricting the use of certain teeth-whitening procedures to licensed dentists is unconstitutional under the Due Process or Equal Protection Clauses. Because we conclude that there are any number of rational grounds for the rule, we affirm the judgment of the District Court.

BACKGROUND

Under Connecticut law, the State Dental Commission (“the Commission”) is charged with advising and assisting the Commissioner of Public Health in issuing dental regulations. See Conn. GemStat. § 20-103a(a). On June 8, 2011, the Commission issued a declaratory ruling that only licensed dentists were permitted to provide certain teeth-whitening procedures. On July 11, 2011, the Connecticut State Department of Public Health sent Sensational Smiles — a non-dentist teeth-whitening business — a letter requesting that it “voluntarily” cease the practice of offering teethwhitening services, and warning that it could otherwise face legal action.

Sensational Smiles sued, challenging several aspects of the declaratory ruling. The parties before the District Court eventually agreed, however, that just one rule constrained the services offered by Sensational Smiles — specifically, the rule stating that only a licensed dentist could shine a light emitting diode (“LED”) lamp at the mouth of a consumer during a teeth-whitening procedure.1 Sensational Smiles as*284serted that this rule violates the Equal Protection and Due Process Clauses, because no rational relationship exists between the rule and the government’s legitimate interest in the public’s oral health. Accordingly, Sensational Smiles sought a declaratory judgment from the District Court that the rule was unconstitutional as applied, as well as a permanent injunction barring the rule’s enforcement. The District Court (Michael P. Shea, Judge) rejected Sensational Smiles’ arguments and granted defendants’ motion for summary judgment. Sensational Smiles appealed.

DISCUSSION

We review the District Court’s grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. Delaney v. Bank of America Corporation et al, 766 F.3d 168, 167 (2d Cir.2014).

The claims at issue — that the declaratory ruling violated the Constitution’s Equal Protection and Due Process Clauses — are both subject to rational-basis review. See Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (“[A] classification neither involving fundamental rights nor proceeding along suspect lines .... cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate government purposes.”); Molinari v. Bloomberg, 564 F.3d 587, 606 (2d Cir.2009) (“The law in this Circuit is clear that where, as here, a statute neither interferes with a fundamental right nor singles out a suspect classification, we will invalidate that statute on substantive due process grounds only when a plaintiff can demonstrate that there is no rational relationship between the legislation and a legitimate legislative purpose.”) (citations, internal quotation marks, and brackets omitted).

As the Supreme Court has stated on multiple occasions, rational-basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Heller, 509 U.S. at 319, 113 S.Ct._ 2637. Rather, we are required to uphold the classification “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 320, 113 S.Ct. 2637 (internal quotation marks omitted). Accordingly, to prevail, the party challenging the classification must “negative every conceivable basis which might support it.” Id. (citation and internal quotation marks omitted).

Reviewing the record de novo, we agree with the District Court that a rational basis, within the meaning of our constitutional law, existed for Connecticut’s prohibition on non-dentists pointing LED lights into their customers’ mouths. All sides agree that the protection of the public’s oral health is a legitimate governmental interest. The parties, however, strongly dispute whether the rule at issue rationally relates to this interest. Here, the Commission received expert testimony indicating that potential health risks are associated with the use of LED lights to enhance the efficacy of teeth-whitening gels.2 While Sensational Smiles disputes *285this evidence, it is not the role of the courts to second-guess the wisdom or logic of the State’s decision-to credit one form of disputed evidence over another.

Sensational Smiles argues that even if there was some basis for believing that LED lights could cause harm, there was still no rational basis for restricting the operation of LED lights to licensed dentists. This is so because dentists are not trained to use LED lights or to practice teeth whitening, and are not required to have any knowledge of LED lights in order to get dental licenses. The Commission, however, might have reasoned that if a teeth-whitening customer experienced sensitivity or burning from the light, then a dentist would be better equipped than a non-dentist to decide whether to modify or cease the use of the light, and/or to treat any oral health issues that might arise during the procedure. The Commission might also have rationally concluded that, in view of the health risks posed by LED lights, customers seeking to use them in a teeth-whitening procedure should first receive an individualized assessment of their oral health by a dentist. Indeed, the Commission explicitly found that “[t]he decision of whether to recommend or apply bleaching agents and/or bleaching lights to a particular person’s teeth requires significant diagnostic expertise and skills, in part, to allow the provider to distinguish between pathological versus non-pathological causes of tooth discoloration.” App’x at 201. There were thus rational grounds for the Dental Commission to restrict the use of these lights to trained dentists.

Sensational Smiles further argues that the rule is irrational because it allows consumers to shine the LED light into their own mouths, after being instructed in its use by unlicensed teeth-whitening professionals, but prohibits those same teeth-whitening professionals from guiding or positioning the light themselves. The law, however, does not require perfect tailoring of economic regulations, and the Dental Commission can only define the practice of dentistry; it has limited control over what people choose to do to their own mouths. Moreover, and perhaps more importantly, individuals are often prohibited from doing to (or for) others what they are permitted to do to (or for) themselves. Thus, while one may not extract another’s teeth for money without a dental license, individuals can remove their own teeth with pliers at home if they so choose, and a failure to ban the latter practice would not render a ban on the former irrational. The same is true of legal services, where individuals may proceed pro se, but may not represent others without a law license.

In sum, given that at least some evidence exists that LED lights may cause some harm to consumers, and given that there is some relationship (however imperfect) between the Commission’s rule and the harm it seeks to prevent, we conclude that the rule does not violate either due process or equal protection.

This would normally end our inquiry, but appellant, supported by amicus Professor Todd J. Zywicki, forcefully argues that the true purpose of the Commission’s LED restriction is to protect the monopoly on dental services enjoyed by licensed dentists in the state of Connecticut. In other words, the regulation is nothing but naked economic protectionism: “rent seeking ... designed to transfer wealth from consumers to a particular in*286terest group.”3 Zywicki Br. at 3. This raises a question of growing importance and also permits us to emphasize what we do not decide, namely, whether the regulation is valid under the antitrust laws. See N. Carolina State Bd. of Dental Examiners v. F.T.C., — U.S.-, 135 S.Ct. 1101, 191 L.Ed.2d 35 (2015) (holding that dental board was not sufficiently controlled by the state to claim state antitrust immunity).

In recent years, some courts of appeals have held that laws and regulations whose sole purpose is to shield a particular group from intrastate economic competition cannot survive rational basis review. See St. Joseph Abbey v. Castille, 712 F.3d 215, 222 (5th Cir.2013) (“[N]either precedent nor broader principles suggest that mere economic protection of a particular industry is a legitimate governmental purpose!)]”); Merrifield v. Lockyer, 547 F.3d 978, 991, n. 15 (9th Cir.2008) (“[M]ere economic protectionism for the sake of economic protectionism is irrational with respect to determining if a classification survives rational basis review.”); Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir.2002) (“[PJrotecting a discrete interest group from economic competition is not a legitimate governmental purpose.”). The Tenth Circuit, on the other hand, has squarely held that such a protectionist purpose is legitimate. See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004) (“[AJbsent a violation of a specific constitutional provision or other federal law, intrastate economic protectionism constitutes a legitimate state interest.”). We join the Tenth Circuit and conclude that economic favoritism is rational for purposes of our review of state action under the Fourteenth Amendment.

Our decision is guided by precedent, principle, and practicalities. As an initial matter, we note that because the legislature need not articulate any reason for enacting its economic regulations, “it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Accordingly, even if, as appellants contend, the Commission was in fact motivated purely by rent-seeking, the rational reasons we have already discussed in support of the regulation would be enough to uphold it.

But even if the only conceivable reason for the LED restriction was to shield licensed dentists from competition, we would still be compelled by an unbroken line of precedent to approve the Commission’s action. The simple truth is that the Supreme Court has long permitted state economic favoritism of all sorts, so long as that favoritism does not violate specific constitutional provisions or federal statutes. See, e.g., Fitzgerald v. Racing Ass’n of Cent. Iowa, 539 U.S. 103, 109, 123 S.Ct. 2156, 156 L.Ed.2d 97 (2003) (upholding state tax scheme that favored riverboat gambling over racetrack gambling); Nordlinger v. Hahn, 505 U.S. 1, 12, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (upholding state property tax scheme that favored long term owners over new owners); New Or*287leans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (upholding New Orleans city ordinance that banned street vendors, with an exception made for existing vendors in operation for more than eight years); Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563, (1955) (upholding regulation that prohibited “any person purporting to do eye examination or visual care to occupy space in [a] retail store”).4

These decisions are a product of experience and common sense. Much of what states do is to favor certain groups over others on economic grounds. We call this politics. Whether the results are wise or terrible is not for us to say, as favoritism of this sort is certainly rational in the constitutional sense. To give but one example, Connecticut could well have concluded that higher costs for teeth whitening (the possible effect of the Commission’s regulation) would subsidize lower costs for more essential dental services that only licensed dentists can provide, such as oral surgery or tooth extraction— much as the high cost of a law or business degree at a given university may allow other students at the same university to pursue poetry on the (relatively) cheap. Even such an arguably consumer-friendly rationale is unnecessary, however, as a simple preference for dentists over teeth-whiteners would suffice. To hold otherwise would be to interpret the Fourteenth Amendment in a way that is destructive to federalism and to the power of the sovereign states to regulate their internal economic affairs. As Justice Holmes wrote over a century ago, “[t]he 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Lochner v. New York, 198 U.S. 45, 75, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Holmes, J., dissenting). Nor does it endorse Sidney and Beatrice Webb’s Fabianism. Choosing between competing economic theories is the work of state legislatures, not of federal courts.

We are buttressed in our decision by the difficulty in distinguishing between a protectionist purpose and a more “legitimate” public purpose in any particular case. Often, the two will coexist, with no consistent way to determine acceptable levels of protectionism. Cf. N. Carolina State Bd. of Dental Examiners, 135 S.Ct. at 1123 (Ali-to, J., dissenting). And a court intent on sniffing out “improper” economic protectionism will have little difficulty in finding it. Thus, even the law at issue in Lo-chner — the paradigm of disfavored judicial review of economic regulations — might well fail the sort of rational basis scrutiny advocated by Sensational Smiles and its amicus. See Rebecca L. Brown, Constitutional Tragedies: The Dark Side of Judgment, in Constitutional Stupidities, Constitutional Tragedies 139, 142 (William N. Eskridge, Jr. & Sanford Levinson eds., 1998) (“[Subsequent analysts.... have demonstrated that the law at issue in Lo-chner, despite its guise as a health regulation, was probably a rent-seeking, competition-reducing measure supported by labor unions and large bakeries for the purpose of driving small bakeries and their large immigrant workforce out of business.”).

Of course, if economic favoritism by the states violates federal law, then, like any state action that contravenes stated federal rules, it falls under the Supremacy *288Clause. This can happen if — whether motivated by rent-seeking or by libertarian ideals — state action, though rational, violates the dormant Commerce Clause, or if a state licensing board that is insufficiently controlled by the state creates a monopoly ■ in violation of the Sherman Act. See 15 U.S.C. § 1 et seq.; N. Carolina State Bd. of Dental Examiners, 135 S.Ct. at 1114. Accordingly, we emphasize that we take no position on the applicability of the antitrust laws to the regulation at issue here. That is a separate and distinct inquiry that was not argued and is not before us. All we hold today is that there are any number of constitutionally rational grounds for the Commission’s rule, and that one of them is the favoring of licensed dentists at the expense of unlicensed teeth whiteners.

CONCLUSION

For the foregoing reasons, the judgment of the District Court is AFFIRMED.

. According to Sensational Smiles, the LED light was used to "enhance” the teeth whitening process. See Appellant’s Br. at 3-4 (“To enhance the whitening process, after the mouthpiece was inserted and the customer was reclined in the chair, a Smile Bright employee would then position a low-powered LED light that was attached to an adjustable arm in front of the customer's mouth. Then the customer would simply relax for 20 minutes and listen to music until the light automatically shut off, indicating the end of the whitening process.”) (internal citations omitted).

. The Commission heard from Dr. Jonathan C. Meiers, DMD, who testified about several scientific articles that appeared in dental journals and that discussed the safety of lights used for teeth whitening. In particular, he testified, and the Commission adopted as a finding of fact, that bleaching lights (though not specifically LED lights) can lead to an increased risk of pulpal irritation, tooth sensitivity, and lip burns. One article referenced by Dr. Meiers dealt specifically with LED lights, and noted that “Thermal pulp damage from LED-systems cannot be absolutely excluded and has to be taken into consideration, *285especially when high power LED’s are used for a longer time period.” Wolfgang Buchal-la & Thomas Attin, External bleaching therapy with activation by heat, light or laser — a systematic review, 23 Dental Materials 586, 590-91 (2007).

. In the field of public choice economics, "rent-seeking” means the attempt to increase one’s share of-existing wealth through political activity. See Anne O. Krueger, The Political Economy of the Rent-Seeking Society, 64 Am. Econ. Rev. 291 (1974); Jagdish Bhagwati, Directly Unproductive, Profit Seeking Activities, 90 J. Pol. Econ. 988 (1982); see also Dist. Intown Properties Ltd. P’ship v. D.C., 198 F.3d 874, 885 (D.C.Cir.1999) ("While the resulting proposals are naturally advanced in the name of the public good, many are surely driven by interest-group purposes, commonly known as ‘rent-seeking.’ ”).

. At oral argument, appellant pointed us to the Supreme Court’s decision in Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985), contending that it stands for the proposition that economic protectionism is not a legitimate government interest. Ward is inapposite, however, because it deals with economic discrimination based on out-of-state residence, not with purely intrastate economic regulation.