March 18, 2016
March 18, 2016
President Obama on Wednesday formally nominated Merrick Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to the U.S. Supreme Court. After studying his extensive record, the National Federation of Independent Business believes that Judge Garland would be a strong ally of the regulatory bureaucracy, big labor and trial lawyers. On behalf of the hundreds of thousands of members we represent, the NFIB opposes Judge Garland’s confirmation.
In NAHB v. EPA, Judge Garland in 2011 refused to consider a Regulatory Flexibility Act (RFA) claim by the National Association of Home Builders against the Environmental Protection Agency despite the law’s clear language. The RFA is one of the few federal statutes that explicitly require certain agencies to take into account the effect of their actions on small employers. Consider that the federal government itself estimates that the typical small business must spend $12,000 per worker annually just to be compliant with federal regulations. With Judge Garland on the Supreme Court, the EPA and other regulators would have a freer hand to impose even more costs on small businesses.
In another case, Rancho Viejo, LLC v. Norton, in 2003, Judge Garland argued that the Commerce Clause, which regulates economic activity between the states, applies to an animal species found in only one state and which has no economic value. In doing so he foreshadowed the creative reasoning that the Obama administration used to defend the Affordable Care Act in NFIB v. Sebelius. We fear that as a pivotal justice on the Supreme Court, Judge Garland could apply his elastic view of the Commerce Clause to almost anything else.
In two other cases involving the National Labor Relations Board, Judge Garland didn’t just side with the government—he argued that business owners should be personally liable for labor violations. In other words, their personal assets, including their homes and their savings, would be exposed to government penalties. What worries us is that Judge Garland has been consistently wrong on labor law. In fact, in 16 major labor decisions of Judge Garland’s that we examined, he ruled 16-0 in favor of the NLRB.
With more than 320,000 members, our organization is the country’s largest advocate for small-business owners. When we asked members on Wednesday whether they wanted to fight the Garland confirmation, the response was overwhelming. More than 90% urged us to take action.
It is especially important that we get involved now because this year and in future sessions, the Supreme Court will hear cases in which NFIB is a plaintiff. We are challenging the Waters of the United States rule, an unprecedented expansion of the EPA’s power to regulate water. The Clean Power Plan, another massive expansion of federal power that we are challenging, threatens to drive up energy costs for consumers—and for small businesses.
Given Judge Garland’s record on the D.C. Circuit Court, is there any question about which side he would take in these cases? When it comes to big government versus small business, we know where he would stand.
This is the first time in the NFIB’s 73-year history that we will weigh in on a Supreme Court nominee. As the plaintiff in NFIB v. Sebelius, which upheld the Affordable Care Act, our members know the power that a single Supreme Court justice can wield. We cannot support his elevation to the Supreme Court.
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