Alaska has a huge stake in the next U.S. Supreme Court nominee.
The state is a plaintiff in two very important cases that could soon be heard by the highest court in the land.
In one, the nation's largest small-business association, the National Federation of Independent Business, is challenging the federal Environmental Protection Agency's new Waters of the United States rule, which would require local business owners to seek federal approval for even the smallest property improvements if there is water nearby. The applications will cost thousands; the delays will be endless; the threat of litigation will hang over every project.
Another very important case for Alaska is Sturgeon v. Frost, which deals with the state's right to regulate its navigable waters under the Alaska National Interest Lands Conservation Act. Although the U. S. Supreme Court just sent it back to lower courts to address unique Alaska issues, it could well find its way back to the Supreme Court. A decision in Alaska's favor is critical to blocking federal overreach aimed at controlling more of Alaska resources.
These are just two reasons why President Barack Obama's nomination of Merrick Garland to fill the vacancy on the Supreme Court left by the passing of Antonin Scalia warrants intense scrutiny. If confirmed, he could serve on the court for at least a decade and tip the balance in favor of the liberal bloc of justices who routinely side with government over employers.
NFIB's legal experts have been poring over Judge Garland's decisions, rulings, and public statements related to hundreds of cases. He currently sits on the U.S. Court of Appeals for the District of Columbia Circuit. And after studying his record, the small-business group 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, which struggle with the costs of regulations. In fact, according to the U.S. 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 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.
On the Circuit Court, Judge 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 for 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.
Small business knows where he stands. NFIB is firmly opposed to this nominee.
Denny DeWitt is Alaska state director for the National Federation of Independent Business.
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