14‐1381‐cv Sensational Smiles, LLC v. Jewel Mullen, Dr., et al.
1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ____________________ 4 5 August Term, 2014 6 7 (Argued: April 15, 2015 Decided: July 17, 2015) 8 9 Docket No. 14‐1381‐cv 10 11 ____________________ 12 13 SENSATIONAL SMILES, LLC, d/b/a SMILE BRIGHT 14 15 Plaintiff‐Appellant, 16 17 LISA MARTINEZ, 18 19 Plaintiff 20 21 v. 22 23 JEWEL MULLEN, DR., in her official capacity as Commissioner of Public Health, 24 JEANNE P. SRATHEARN, DDS, in her official capacity as a Member of the 25 Connecticut Dental Commission, ELLIOT BERMAN, DDS, in his official capacity 26 as a Member of the Connecticut Dental Commission, LANCE E. BANWELL, 27 DDS, in his official capacity as a Member of the Connecticut Dental Commission, 28 PETER S. KATZ, DMD, in his official capacity as a Member of the Connecticut 29 Dental Commission, STEVEN G. REISS, DDS, in his official capacity as a Member 30 of the Connecticut Dental Commission, MARTIN UNGAR, DMD, in his official 31 capacity as a Member of the Connecticut Dental Commission, BARBARA B. 32 ULRICH, in her official capacity as a Member of the Connecticut Dental 33 Commission, 1 2 3 Defendants‐Appellees. 4 5 ____________________ 6 7 Before: CALABRESI, CABRANES, and DRONEY, Circuit Judges. 8 9 Plaintiff‐appellant Sensational Smiles, LLC, d/b/a Smile Bright 10 (“Sensational Smiles”) appeals from a March 31, 2014 judgment of the United 11 States District Court for the District of Connecticut (Micheal P. Shea, Judge) 12 granting defendants’ motion for summary judgment. Sensational Smiles is a 13 company that provides teeth‐whitening services that involve shining a low‐ 14 powered LED light into a customer’s mouth for 20 minutes. The Connecticut 15 State Dental Commission has issued a declaratory ruling restricting the use of 16 such lights to licenced dentists. Sensational Smiles now challenges that ruling, 17 arguing that the ruling violates the Equal Protection Clause and the Due Process 18 Clause because it lacks a rational basis. Because we conclude that there are 19 several rational reasons for limiting the use of teeth‐whitening LED lights to 20 licenced dentists, we affirm. 21 22 Judge DRONEY concurs in a separate opinion. 23 ____________________
24 PAUL M. SHERMAN (Dana Berliner, on the brief), 25 Institute for Justice, Arlington, VA, for Plaintiff‐Appellant. 26 27 DANIEL SHAPIRO, Assistant Attorney General, for 28 George Jepsen, Attorney General of Connecticut, for 29 Defendants‐Appellees. 30 31 32 33 34
2 1 GUIDO CALABRESI, Circuit Judge:
2 The question in this case is whether a Connecticut rule restricting the
3 use of certain teeth‐whitening procedures to licenced dentists is unconstitutional
4 under the Due Process or Equal Protection Clauses. Because we conclude that
5 there are any number of rational grounds for the rule, we affirm the judgment of
6 the District Court.
7 BACKGROUND
8 Under Connecticut law, the State Dental Commission (“the
9 Commission”) is charged with advising and assisting the Commissioner of Public
10 Health in issuing dental regulations. See Conn. Gen. Stat. § 20‐103a(a). On June
11 8, 2011, the Commission issued a declaratory ruling that only licensed dentists
12 were permitted to provide certain teeth‐whitening procedures. On July 11, 2011,
13 the Connecticut State Department of Public Health sent Sensational Smiles—a
14 non‐dentist teeth‐whitening business—a letter requesting that it “voluntarily”
15 cease the practice of offering teeth‐ whitening services, and warning that it could
16 otherwise face legal action.
17 Sensational Smiles sued, challenging several aspects of the
3 1 declaratory ruling. The parties before the District Court eventually agreed,
2 however, that just one rule constrained the services offered by Sensational
3 Smiles—specifically, the rule stating that only a licensed dentist could shine a
4 light emitting diode (“LED”) lamp at the mouth of a consumer during a teeth‐
5 whitening procedure.1 Sensational Smiles asserted that this rule violates the
6 Equal Protection and Due Process Clauses, because no rational relationship exists
7 between the rule and the government’s legitimate interest in the public’s oral
8 health. Accordingly, Sensational Smiles sought a declaratory judgment from the
9 District Court that the rule was unconstitutional as applied, as well as a
10 permanent injunction barring the rule’s enforcement. The District Court (Michael
11 P. Shea, Judge) rejected Sensational Smiles’ arguments and granted defendants’
12 motion for summary judgment. Sensational Smiles appealed.
13 DISCUSSION
1 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).
4 1 We review the District Court’s grant of summary judgment de novo,
2 construing the evidence in the light most favorable to the non‐moving party.
3 Delaney v. Bank of America Corporation et al., 766 F.3d 163, 167 (2d Cir. 2014).
4 The claims at issue—that the declaratory ruling violated the Constitution’s
5 Equal Protection and Due Process Clauses—are both subject to rational‐basis
6 review. See Heller v. Doe, 509 U.S. 312, 320 (1993) (“[A] classification neither
7 involving fundamental rights nor proceeding along suspect lines . . . cannot run
8 afoul of the Equal Protection Clause if there is a rational relationship between the
9 disparity of treatment and some legitimate government purposes.”); Molinari v.
10 Bloomberg, 564 F.3d 587, 606 (2d Cir. 2009) (“The law in this Circuit is clear that
11 where, as here, a statute neither interferes with a fundamental right nor singles
12 out a suspect classification, we will invalidate that statute on substantive due
13 process grounds only when a plaintiff can demonstrate that there is no rational
14 relationship between the legislation and a legitimate legislative purpose.”)
15 (citations, internal quotation marks, and brackets omitted).
16 As the Supreme Court has stated on multiple occasions, rational‐basis
17 review “is not a license for courts to judge the wisdom, fairness, or logic of
5 1 legislative choices.” Heller, 509 U.S. at 319. Rather, we are required to uphold the
2 classification “if there is any reasonably conceivable state of facts that could
3 provide a rational basis for the classification.” Id. at 320 (internal quotation
4 marks omitted). Accordingly, to prevail, the party challenging the classification
5 must “negative every conceivable basis which might support it.” Id. (citation and
6 internal quotation marks omitted).
7 Reviewing the record de novo, we agree with the District Court that a
8 rational basis, within the meaning of our constitutional law, existed for
9 Connecticut’s prohibition on non‐dentists pointing LED lights into their
10 customers’ mouths. All sides agree that the protection of the public’s oral health
11 is a legitimate governmental interest. The parties, however, strongly dispute
12 whether the rule at issue rationally relates to this interest. Here, the Commission
13 received expert testimony indicating that potential health risks are associated
14 with the use of LED lights to enhance the efficacy of teeth‐whitening gels.2 While
2 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
6 1 Sensational Smiles disputes this evidence, it is not the role of the courts to
2 second‐guess the wisdom or logic of the State’s decision to credit one form of
3 disputed evidence over another.
4 Sensational Smiles argues that even if there was some basis for believing
5 that LED lights could cause harm, there was still no rational basis for restricting
6 the operation of LED lights to licensed dentists. This is so because dentists are not
7 trained to use LED lights or to practice teeth whitening, and are not required to
8 have any knowledge of LED lights in order to get dental licenses. The
9 Commission, however, might have reasoned that if a teeth‐whitening customer
10 experienced sensitivity or burning from the light, then a dentist would be better
11 equipped than a non‐dentist to decide whether to modify or cease the use of the
12 light, and/or to treat any oral health issues that might arise during the procedure.
13 The Commission might also have rationally concluded that, in view of the health
14 risks posed by LED lights, customers seeking to use them in a teeth‐whitening
15 procedure should first receive an individualized assessment of their oral health
cannot be absolutely excluded and has to be taken into consideration, especially when high power LED’s are used for a longer time period.” Wolfgang Buchalla & Thomas Attin, External bleaching therapy with activation by heat, light or laser – a systematic review, 23 DENTAL MATERIALS 586, 590‐91 (2007).
7 1 by a dentist. Indeed, the Commission explicitly found that “[t]he decision of
2 whether to recommend or apply bleaching agents and/or bleaching lights to a
3 particular person’s teeth requires significant diagnostic expertise and skills, in
4 part, to allow the provider to distinguish between pathological versus non‐
5 pathological causes of tooth discoloration.” App’x at 201. There were thus
6 rational grounds for the Dental Commission to restrict the use of these lights to
7 trained dentists.
8 Sensational Smiles further argues that the rule is irrational because it
9 allows consumers to shine the LED light into their own mouths, after being
10 instructed in its use by unlicensed teeth‐whitening professionals, but prohibits
11 those same teeth‐whitening professionals from guiding or positioning the light
12 themselves. The law, however, does not require perfect tailoring of economic
13 regulations, and the Dental Commission can only define the practice of dentistry;
14 it has limited control over what people choose to do to their own mouths.
15 Moreover, and perhaps more importantly, individuals are often prohibited from
16 doing to (or for) others what they are permitted to do to (or for) themselves.
17 Thus, while one may not extract another’s teeth for money without a dental
18 license, individuals can remove their own teeth with pliers at home if they so
8 1 choose, and a failure to ban the latter practice would not render a ban on the
2 former irrational. The same is true of legal services, where individuals may
3 proceed pro se, but may not represent others without a law license.
4 In sum, given that at least some evidence exists that LED lights may cause
5 some harm to consumers, and given that there is some relationship (however
6 imperfect) between the Commission’s rule and the harm it seeks to prevent, we
7 conclude that the rule does not violate either due process or equal protection.
8 This would normally end our inquiry, but appellant, supported by amicus
9 Professor Todd J. Zywicki , forcefully argues that the true purpose of the
10 Commission’s LED restriction is to protect the monopoly on dental services
11 enjoyed by licensed dentists in the state of Connecticut. In other words, the
12 regulation is nothing but naked economic protectionism: “rent seeking . . .
13 designed to transfer wealth from consumers to a particular interest group.”3
3 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.’”).
9 1 Zywicki Br. at 3. This raises a question of growing importance and also permits
2 us to emphasize what we do not decide, namely, whether the regulation is valid
3 under the antitrust laws. See N. Carolina State Bd. of Dental Examiners v. F.T.C., 135
4 S. Ct. 1101 (2015) (holding that dental board was not sufficiently controlled by the
5 state to claim state antitrust immunity).
6 In recent years, some courts of appeals have held that laws and regulations
7 whose sole purpose is to shield a particular group from intrastate economic
8 competition cannot survive rational basis review. See St. Joseph Abbey v. Castille,
9 712 F.3d 215, 222 (5th Cir. 2013) (“[N]either precedent nor broader principles
10 suggest that mere economic protection of a particular industry is a legitimate
11 governmental purpose[.]”); Merrifield v. Lockyer, 547 F.3d 978, 991, n.15 (9th Cir.
12 2008) (“[M]ere economic protectionism for the sake of economic protectionism is
13 irrational with respect to determining if a classification survives rational basis
14 review.”); Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) (“[P]rotecting a
15 discrete interest group from economic competition is not a legitimate
16 governmental purpose.”). The Tenth Circuit, on the other hand, has squarely
17 held that such a protectionist purpose is legitimate. See Powers v. Harris, 379 F.3d
18 1208, 1221 (10th Cir. 2004) (“[A]bsent a violation of a specific constitutional
10 1 provision or other federal law, intrastate economic protectionism constitutes a
2 legitimate state interest.”). We join the Tenth Circuit and conclude that
3 economic favoritism is rational for purposes of our review of state action under
4 the Fourteenth Amendment.
5 Our decision is guided by precedent, principle, and practicalities. As an
6 initial matter, we note that because the legislature need not articulate any reason
7 for enacting its economic regulations, “it is entirely irrelevant for constitutional
8 purposes whether the conceived reason for the challenged distinction actually
9 motivated the legislature.” F.C.C. v. Beach Commcʹns, Inc., 508 U.S. 307, 315 (1993).
10 Accordingly, even if, as appellants contend, the Commission was in fact
11 motivated purely by rent‐seeking, the rational reasons we have already discussed
12 in support of the regulation would be enough to uphold it.
13 But even if the only conceivable reason for the LED restriction was to
14 shield licensed dentists from competition, we would still be compelled by an
15 unbroken line of precedent to approve the Commission’s action. The simple
16 truth is that the Supreme Court has long permitted state economic favoritism of
17 all sorts, so long as that favoritism does not violate specific constitutional
18 provisions or federal statutes. See, e.g., Fitzgerald v. Racing Assʹn of Cent. Iowa, 539
11 1 U.S. 103, 109 (2003) (upholding state tax scheme that favored riverboat gambling
2 over racetrack gambling); Nordlinger v. Hahn, 505 U.S. 1, 12 (1992) (upholding
3 state property tax scheme that favored long term owners over new owners); New
4 Orleans v. Dukes, 427 U.S. 297 (1976) (upholding New Orleans city ordinance that
5 banned street vendors, with an exception made for existing vendors in operation
6 for more than eight years);Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483,
7 (1955) (upholding regulation that prohibited “any person purporting to do eye
8 examination or visual care to occupy space in [a] retail store”).4
9 These decisions are a product of experience and common sense. Much of
10 what states do is to favor certain groups over others on economic grounds. We
11 call this politics. Whether the results are wise or terrible is not for us to say, as
12 favoritism of this sort is certainly rational in the constitutional sense. To give but
13 one example, Connecticut could well have concluded that higher costs for teeth
14 whitening (the possible effect of the Commission’s regulation) would subsidize
15 lower costs for more essential dental services that only licensed dentists can
4 At oral argument, appellant pointed us to the Supreme Court’s decision in Metro. Life Ins. Co. v. Ward, 470 U.S. 869 (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.
12 1 provide, such as oral surgery or tooth extraction–much as the high cost of a law
2 or business degree at a given university may allow other students at the same
3 university to pursue poetry on the (relatively) cheap. Even such an arguably
4 consumer‐friendly rationale is unnecessary, however, as a simple preference for
5 dentists over teeth‐whiteners would suffice. To hold otherwise would be to
6 interpret the Fourteenth Amendment in a way that is destructive to federalism
7 and to the power of the sovereign states to regulate their internal economic
8 affairs. As Justice Holmes wrote over a century ago, “[t]he 14th Amendment
9 does not enact Mr. Herbert Spencerʹs Social Statics.” Lochner v. New York, 198 U.S.
10 45, 75 (1905) (Holmes, J., dissenting). Nor does it endorse Sidney and Beatrice
11 Webb’s Fabianism. Choosing between competing economic theories is the work
12 of state legislatures, not of federal courts.
13 We are buttressed in our decision by the difficulty in distinguishing
14 between a protectionist purpose and a more “legitimate” public purpose in any
15 particular case. Often, the two will coexist, with no consistent way to determine
16 acceptable levels of protectionism. Cf. N. Carolina State Bd. of Dental Examiners,
17 135 S. Ct. at 1123 (Alito, J., dissenting). And a court intent on sniffing out
18 “improper” economic protectionism will have little difficulty in finding it. Thus,
13 1 even the law at issue in Lochner—the paradigm of disfavored judicial review of
2 economic regulations—might well fail the sort of rational basis scrutiny
3 advocated by Sensational Smiles and its amicus. See Rebecca L. Brown,
4 Constitutional Tragedies: The Dark Side of Judgment, in Constitutional
5 Stupidities, Constitutional Tragedies 139, 142 (William N. Eskridge, Jr. & Sanford
6 Levinson eds., 1998) (“[S]ubsequent analysts . . . . have demonstrated that the law
7 at issue in Lochner, despite its guise as a health regulation, was probably a rent‐
8 seeking, competition‐reducing measure supported by labor unions and large
9 bakeries for the purpose of driving small bakeries and their large immigrant
10 workforce out of business.”).
11 Of course, if economic favoritism by the states violates federal law, then,
12 like any state action that contravenes stated federal rules, it falls under the
13 Supremacy Clause. This can happen if—whether motivated by rent‐seeking or
14 by libertarian ideals—state action, though rational, violates the dormant
15 Commerce Clause, or if a state licensing board that is insufficiently controlled by
16 the state creates a monopoly in violation of the Sherman Act. See 15 U.S.C. § 1 et
17 seq.; N. Carolina State Bd. of Dental Examiners, 135 S. Ct. at 1114. Accordingly, we
18 emphasize that we take no position on the applicability of the antitrust laws to
14 1 the regulation at issue here. That is a separate and distinct inquiry that was not
2 argued and is not before us. All we hold today is that there are any number of
3 constitutionally rational grounds for the Commission’s rule, and that one of them
4 is the favoring of licensed dentists at the expense of unlicensed teeth whiteners.
7 CONCLUSION
8 For the foregoing reasons, the judgment of the District Court is AFFIRMED.
15 1 DRONEY, Circuit Judge, concurring in part and concurring in the judgment:
2 I join the majority opinion in its conclusion that the Dental Commission’s
3 declaratory ruling is rationally related to the state’s legitimate interest in
4 protecting the public health. Because this is sufficient to resolve the appeal, I
5 would not reach the question of whether pure economic protectionism is a
6 legitimate state interest for purposes of rational basis review. The majority
7 having chosen to address that issue, I write separately to express my
8 disagreement.
9 In my view, there must be at least some perceived public benefit for
10 legislation or administrative rules to survive rational basis review under the
11 Equal Protection and Due Process Clauses. As the majority acknowledges, only
12 the Tenth Circuit has adopted the view that pure economic protectionism is a
13 legitimate state interest. See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004).
14 Two of the circuits that reached the opposite conclusion expressly rejected the
15 Tenth Circuit’s approach. See St. Joseph Abbey v. Castille, 712 F.3d 215, 222‐23 (5th
16 Cir. 2013); Merrifield v. Lockyer, 547 F.3d 978, 991 n.15 (9th Cir. 2008).
17 I agree with the Fifth Circuit’s reasoning in St. Joseph Abbey, particularly
18 insofar as it disputes the Tenth Circuit’s reliance in Powers on the very Supreme
1 1 Court cases that the majority cites in support of its holding here. See St. Joseph
2 Abbey, 712 F.3d at 222 (“[N]one of the Supreme Court cases Powers cites stands
3 for that proposition [that intrastate economic protectionism is a legitimate state
4 interest]. Rather, the cases indicate that protecting or favoring a particular
5 intrastate industry is not an illegitimate interest when protection of the industry
6 can be linked to advancement of the public interest or general welfare.”
7 (emphasis in original)); see also Powers, 379 F.3d at 1226 (Tymkovich, J.,
8 concurring) (“Contrary to the majority . . ., whenever courts have upheld
9 legislation that might otherwise appear protectionist . . ., courts have always
10 found that they could also rationally advance a non‐protectionist public good.”
11 (emphasis in original)).
12 A review of the Supreme Court decisions confirms the Fifth Circuit’s
13 conclusion that some perceived public benefit was recognized by the Court in
14 upholding state and local legislation. In Williamson v. Lee Optical of Oklahoma,
15 Inc., 348 U.S. 483 (1955), the Supreme Court reviewed an Oklahoma statute that,
16 inter alia, forbade opticians from replacing eyeglass lenses without a prescription
17 from an optometrist or ophthalmologist, even when an optician could easily and
18 safely have done the work. See id. at 485‐87. In concluding that the legislation
2 1 passed rational basis review, the Court recognized that the requirement of a
2 prescription could advance the public interest in an eye examination by a doctor
3 before the lens replacement. See id. at 487‐88.
4 In City of New Orleans v. Dukes, 427 U.S. 297 (1976) (per curiam), the Court
5 reviewed a New Orleans ordinance that prohibited food venders from operating
6 pushcarts in the French Quarter. See id. at 298. A grandfather clause exempted
7 existing vendors from the ban if they had been operating continuously in the
8 French Quarter for at least eight years. See id. The Supreme Court held that the
9 exemption survived rational basis review, observing that New Orleans may have
10 concluded that “newer businesses were less likely to have built up substantial
11 reliance interests in continued operation” and that the grandfathered vendors
12 may have “themselves become part of the distinctive character and charm” of the
13 French Quarter. Id. at 305.
14 The two more recent decisions cited by the majority upheld differential
15 rates of state taxation. Nordlinger v. Hahn, 505 U.S. 1 (1992), considered a
16 California property tax regime that tied the assessment of property values to the
17 value of the property at the time it was acquired, as opposed to its current value.
18 See id. at 5. This approach benefitted long‐term property owners over newer
3 1 owners. See id. at 6. However, the Court identified the state’s “legitimate interest
2 in local neighborhood preservation, continuity, and stability” and the “reliance
3 interests” of existing property owners as rational bases for the law. Id. at 12‐13.
4 In Fitzgerald v. Racing Association of Central Iowa, 539 U.S. 103 (2003), the
5 Court reviewed an Iowa law that imposed higher taxes on racetrack slot machine
6 revenues than it imposed on riverboat slot machine revenues. See id. at 105.
7 Again finding the differential tax treatment rational, the Court suggested that the
8 state legislature “may have wanted to encourage the economic development of
9 river communities or to promote riverboat history.” Id. at 109. And it again
10 emphasized “reliance interests,” observing that the law preserved the historical
11 tax rate for riverboats, whereas racetracks had not previously been permitted to
12 operate slot machines at all. Id. at 105, 109.
13 It may be that, as a practical matter, economic protectionism can be
14 couched in terms of some sort of alternative, indisputably legitimate state
15 interest. Indeed, the majority suggests as much when it observes that, in this
16 case, the state may have concluded that protectionism “would subsidize lower
17 costs for more essential dental services that only licensed dentists can provide.”
18 Maj. Op., ante, at 12. But it is quite different to say that protectionism for its own
4 1 sake is sufficient to survive rational basis review, and I do not think the Supreme
2 Court would endorse that approach. Accord Merrifield, 547 F.3d at 991 n.15 (“We
3 do not disagree that there might be instances when economic protectionism
4 might be related to a legitimate governmental interest and survive rational basis
5 review. However, economic protectionism for its own sake, regardless of its
6 relation to the common good, cannot be said to be in furtherance of a legitimate
7 governmental interest.”).
8 Nor do I believe that rejecting pure economic protectionism as a legitimate
9 state interest requires us to resurrect Lochner. Accord St. Joseph Abbey, 712 F.3d at
10 227 (“We deploy no economic theory of social statics or draw upon a judicial
11 vision of free enterprise. . . . We insist only that Louisiana’s regulation not be
12 irrational—the outer‐most limits of due process and equal protection—as Justice
13 Harlan put it, the inquiry is whether ‘[the] measure bears a rational relation to a
14 constitutionally permissible objective.’ Answering that question is well within
15 Article III’s confines of judicial review.” (second alteration in original) (footnote
16 omitted)); Craigmiles v. Giles, 312 F.3d 220, 229 (6th Cir. 2002) (“We are not
17 imposing our view of a well‐functioning market on the people of Tennessee.
18 Instead, we invalidate only the General Assembly’s naked attempt to raise a
5 1 fortress protecting the monopoly rents that funeral directors extract from
2 consumers. This measure to privilege certain businessmen over others at the
3 expense of consumers is not animated by a legitimate governmental purpose and
4 cannot survive even rational basis review.”); see also Cass R. Sunstein, Naked
5 Preferences and the Constitution, 84 Colum. L. Rev. 1689, 1692 (1984) (“The
6 minimum requirement that government decisions be something other than a raw
7 exercise of political power has been embodied in constitutional doctrine under
8 the due process clause before, during, and after the Lochner era.”).
9 The majority, by contrast, essentially renders rational basis review a nullity
10 in the context of economic regulation. See Powers, 379 F.3d at 1226 (Tymkovich,
11 J., concurring) (“The end result of the majority’s reasoning is an almost per se
12 rule upholding intrastate protectionist legislation.”); cf. Ranschburg v. Toan, 709
13 F.2d 1207, 1211 (8th Cir. 1983) (“Although states may have great discretion in the
14 area of social welfare, they do not have unbridled discretion. They must still
15 explain why they chose to favor one group of recipients over another. Thus, it is
16 untenable to suggest that a state’s decision to favor one group of recipients over
17 another by itself qualifies as a legitimate state interest. An intent to discriminate
18 is not a legitimate state interest.”). If even the deferential limits on state action
6 1 fall away simply because the regulation in question is economic, then it seems
2 that we are not applying any review, but only disingenuously repeating a
3 shibboleth. Cf. Windsor v. United States, 699 F.3d 169, 180 (2d Cir. 2012) (“[W]hile
4 rational basis review is indulgent and respectful, it is not meant to be ‘toothless.’”
5 (citation omitted)), aff’d, 133 S. Ct. 2675 (2013).
6 I acknowledge that the deference afforded by courts to legislative
7 enactments is significantly greater in the context of economic regulation than it is
8 “in matters of personal liberty.” St. Joseph Abbey, 712 F.3d at 221 (citing United
9 States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938)); see also Allison B.
10 Kingsmill, Note, Of Butchers, Bakers, and Casket Makers: St. Joseph Abbey v.
11 Castille and the Fifth Circuit’s Rejection of Pure Economic Protectionism as a
12 Legitimate State Interest, 75 La. L. Rev. 933, 936 (2015) (“The [Supreme] Court has
13 not invalidated a single piece of economic legislation on due process or equal
14 protection grounds since [the 1930s], opting for a more deferential, rational basis
15 review of state laws.”). But this difference in degree does not compel the
16 conclusion that our deference in the economic sphere must be absolute. Nor will
17 an insistence on some legitimate, non‐protectionist state interest result in
18 sweeping judicial entanglement in the legislative process.
7 1 For this reason, I am not troubled by the majority’s surmise that “even the
2 law at issue in Lochner—the paradigm of disfavored judicial review of economic
3 regulations—might well fail the sort of rational basis scrutiny advocated by
4 Sensational Smiles.” Maj. Op., ante, at 13‐14. First, I doubt that this would
5 actually be the case; even if, as a matter of historical fact, the Lochner law was
6 intended to be a protectionist measure, such intent is not dispositive of the
7 rational basis inquiry. See id. at 10‐11. And, in the highly unlikely event that the
8 evidence showed that the law was entirely untethered to any conceivable
9 legitimate state purpose (including protection of the public health), I do not see
10 why the law should survive. Lochner is “the paradigm of disfavored judicial
11 review of economic regulations” because it imposed exacting limits on state
12 action, in stark contrast to the deferential standard applied under modern
13 rational basis review. See Lochner v. New York, 198 U.S. 45, 59 (1905) (“There must
14 be more than the mere fact of the possible existence of some small amount of
15 unhealthiness to warrant legislative interference with liberty.”). Our aversion to
16 Lochner’s flawed approach is well founded, but we should not respond to that
17 aversion by abandoning the minimum requirements of due process and equal
18 protection.
8 1 In short, no matter how broadly we are to define the class of legitimate
2 state interests, I cannot conclude that protectionism for its own sake is among
3 them.