Robert M. Langer
Publications

North Carolina State Board of Dental Examiners v. FTC - What Hath the Supreme Court Wrought?

May 8, 2015 Published Work
Antitrust & Trade Regulation Report, Bloomberg BNA

The federalism debate has continued to serve as a point of controversy and division in American politics and jurisprudence.1 The balance of power between the states and the federal government has shifted over time reflecting the realities of this debate. Historically, the states were thought to possess the exclusive power to regulate ‘‘their purely internal affairs'' through the exercise of their police powers.2 However, in the wake of the New Deal,3 the second Reconstruction of the 1960s, and the advent of the Warren Court, a new era, which favored the primacy of the federal government, arose.4 In this era, both Congress and the Courts significantly expanded the scope and reach of federal power into arenas traditionally reserved to the states in part by leveraging Congress's authority to regulate interstate commerce.5 However, the tides turned against federal power in the 1970s and the primacy of states' rights was championed under the Rehnquist Court.6 Today, a sharp divide has emerged in the current Supreme Court between those justices who favor enhanced states' rights and those justices who favor the primacy of federal power.

The United States Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade Commission (‘‘NC Dental'')7 was recently given the opportunity to revisit the federalism debate in deciding whether the protections of the state action immunity doctrine shielded a state agency from antitrust liability. Directly at issue in NC Dental was a quintessential question of federalism: Could a state agency's conduct in regulating its internal affairs be subject to the federal government's commerce power as embodied in the Sherman Act, 26 Stat. 209, as amended 15 U.S.C. § 1 et seq.? A majority of Supreme Court Justices answered this question in the affirmative and in a manner that appears calculated to broaden the scope of the federal government's power.8 Not surprisingly, and emblematic of the current divide, Justices Alito, Scalia and Thomas filed a vigorous dissent championing a states' rights approach to the question and concluding that a state agency will always be immune from federal antitrust law.9

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1 See Geoffrey R. Stone, et al., CONSTITUTIONAL LAW 147-48 (3rd ed. 1996).
2 Leisy v. Hardin, 135 U.S. 100, 122 (1890).
3 See generally Akhil Reed Amar, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998).
4 See, e.g., National League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
5 See Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW § 5-20, at 378 (2d ed. 1988).
6 See, e.g., Marie L. Garibaldi, The Rehnquist Court and State Constitutional Law, 34 TULSA L. J. 67, 69-70 (1998).
7 N. Carolina State Bd. of Dental Examiners v. F.T.C., 135 S. Ct. 1101, 191 L. Ed. 2d 35 (2015) .
8 Id. at 1107-17.
9 Id. at 1117-23.

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