High court nominee has record of siding against small business

President Obama has nominated Merrick Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to replace Justice Antonin Scalia on the U.S. Supreme Court. If confirmed, he could serve on the court for at least a decade and tip the balance in favor of the liberal block of justices who routinely side with government over employers.

The consequences for the economy, and especially for small businesses, could be harsh and long-lasting. That’s why the National Federation of Independent Business, the country’s leading advocate for small-business owners, has been vetting Judge Garland’s record for weeks. Our legal experts have been pouring over his decisions, rulings and public statements related to hundreds of cases.

After studying his record, NFIB found that Garland has sided overwhelmingly with regulators, labor unions, trial lawyers and environmental activists. Small employers have been almost always on the losing end of his decisions.

For example, in NAHB v. EPA, Judge Garland in 2011 rejected a Regulatory Flexibility Act claim by the National Association of Home Builders against the Environmental Protection Agency. He did so despite the fact that the RFA is unambiguous. It requires certain agencies to analyze the effect of their actions on small employers. That’s an important protection for small businesses, who struggle with the costs of regulations. In fact, according to the Small Business Administration, the typical small business must spend $12,000 per worker annually to comply with federal regulations. There’s little doubt that Judge Garland would defer to regulators as a Supreme Court justice.

In another case, Rancho Viejo, LLC v. Norton, in 2003, Garland argued that the federal government can regulate private property in California under the Commerce Clause because of the presence of a unique species of toad. The Commerce Clause applies to interstate commerce. The toad wasn’t part of any interstate commercial activity. Nevertheless, Garland twisted the Commerce Clause into a pretzel in order to rationalize federal regulation. Would he be just as creative as a Supreme Court justice in giving regulators more power over private property? NFIB believes that’s very likely.

Pause

Current Time 0:00

Duration Time 0:00

Loaded: 0%Progress: 0%0:00

You have free articles remaining.

Fullscreen

00:00

Unmute

On the Circuit Court, Garland ruled in many cases involving the National Labor Relations Board. The NLRB is supposed to be a neutral arbiter of labor disputes. Often, however, it acts more as an agent of the labor unions. That’s been especially true under President Obama. Garland ruled in two cases that when employers are found guilty of violations, not only should their business assets be penalized but their personal assets as well. In other words, according to Garland, a business owner’s personal assets, like homes and retirement savings, are fair game for regulators.

In fact, in 16 major labor decisions, Garland ruled in favor of the NLRB in all but one case. In that case, he voted with the union. That’s the pattern throughout his long tenure on the bench. He strongly favors government power over private enterprise. He has deep sympathies for labor unions over employers. And he is certain to bring those views to the Supreme Court, where big decisions affecting the economy are likely to be made in the future.

NFIB is a plaintiff in two very important cases that could land at the Supreme Court soon. It is challenging the EPA Waters of the United States rule, which would require local business owners to seek federal approval for even the smallest property improvements as long as there is water nearby. The applications will cost thousands; the delays will be endless; the threat of litigation will hang over every project.

The EPA Power Plan rule is just as potentially damaging. It forces states to switch from coal as a source of electricity to more expensive alternatives. Even the EPA predicts it will significantly increase the cost of electricity. That means higher fixed costs and lower profits for small businesses that are already struggling.

After examining his record, it’s a fair assumption that Judge Garland would readily side with the government in both of these major cases. Small business knows where he stands. NFIB is firmly opposed to this nominee.

-- Riley Johnson is Montana state director for the National Federation of Independent Business, and writes from Helena.

(2) comments

Fred Brewer Mar 29, 2016 12:02pm

My thanks to Mr O'Brien for providing clear, well-supported facts regarding the origins and background of this letter. Ultra-conservative "think tanks" like this one try to conceal their agendas with warm-and-fuzzy names, and disingenuous mission statements that claim they're all about "the little guy."

As in this letter, purportedly by a writer in Montana, they're nationally organized and funded, cranking out propaganda and flooding local, hometown media with it over a local (false) signature.

That sort of dishonesty destroys any pretense of credibility for their claims.

john obrien Mar 28, 2016 2:38am

The NFIB was first exposed in 2012 by Bill Moyers, Huffington Post, CNN, Source Watch, PR Watch, and Bloomberg, who separately documented assertions that the NFIB are NOT the grass roots organization they pretend to be, as their main purpose (not visible to the general public) does not include small business interests.

NFIB claims 350,000 members, chapters in all 50 states, and a $95 million budget, is supported almost entirely by membership dues, but the dues paying members are dominated by the large donors, specifically the Koch and Crossroads network. The Center for Media and Democracy (CMD), the group who helped expose ALEC, has documented NFIB articles, IRS filings and lobbying activity. CFMD shows us that NFIB is NOT the "voice of small business,” it is the voice of banks and mega-corporations, and is motivated by the same wealthy, right-wing fanatics who are determined to end Donald Trump's presidential ambitions.

The National Federation of Independent Business is not a grassroots organization of small businesses... NFIB is managed top-down by a dominant group of wealthy donors who control its agenda... The small members who donate to the NFIB are therefore not "independent", nor do the small business members determine the overall agenda of the NFIB, which has become another one of the political 'false fronts' established by and for the Koch Brothers' State Policy Network, and Karl Rove's Crossroads America.

NFIB was the lead plaintiff in the unsuccessful lawsuit that brought the Affordable Care Act to the Supreme Court. NFIB's ad budget and guest editorial efforts crank out ads and newspaper articles (such as this rubbish provided by Riley Johnson) which support radical Republican initiatives and oppose any, every, and ALL initiatives and political appointments proposed by Democrats. The group is funded by millions of dollars from conservative groups like Karl Rove’s Crossroads GPS and the Koch brothers’ Donors Trust.

To recap: The NFIB takes instruction from the its major donor-controllers who direct the activities of the organization while peddling the idea that the NFIB is a grass roots small business movement. NFIB is a modern version of the John Birch doctrine machine: "No Taxes" - "No Regulation" - "No Government"... and their real message?: "Its best for everyone if businessmen and lobbyists govern the country" - Women can be a part of it also if they play by the Koch/Rove rules.

This is a sham and a scam - NFIB serves the interests of large banks and corporations while pimping the idea they are somehow primarily engaged in defending the small business owner. It's a dirty dammnn lie.