What Other Small Business Issues Will the Supreme Court Take-Up in the 2018-19 Term?

Date: November 16, 2018

So far, NFIB has weighed in on three cases pending before the Supreme Court this term, two of which will affect the rights of small business landowners, and the other concerning potential liabilities for manufactures.

We have also filed amicus briefs asking the Court to take up the following cases:

  • State National Bank of Big Spring v. Mnuchin – In asking for review, we argued that the Consumer Financial Protection Bureau (CFPB) is unconstitutional as currently structured with a single agency head. Congress made CFPB an “independent agency,” and while the Supreme Court has upheld the constitutionality of independent agencies in the past it has never suggested that Congress can vest regulatory power in one person. By contrast independent agencies like the Federal Trade Commission and National Labor Relations Board are governed by a board of members from different political parties, with at least some semblance of political balance. Accordingly, we argue the CFPB structure violates the separation of powers to create a totally unaccountable regulatory czar.
  • Yovino v. Rizo – As we explained in a previous post, the Ninth Circuit Federal Court of Appeals shocked employers this spring with its decision in Rizo—which overturned longstanding case law on which many employers relied in establishing pay structures. In conflict with other federal courts of appeal, the Ninth Circuit ruled that employers could not rely on an employee’s wage or salary history as a defense in a federal Equal Pay Act lawsuit. We’ve asked the Supreme Court to take this case to clarify that employers may not be held liable for their reliance on wage or salary history.
  • Bernard Parish v. United States – In this case we’ve asked the Supreme Court to clarify under what circumstances government owes a duty to provide compensation for destruction of private property, resulting as a foreseeable consequence of government conduct. As we’ve argued in the past, the Fifth Amendment guarantees a right to just compensation where the government is responsible for destruction of private property—as in this case, where the Army Corps of Engineers built a canal that predictably flooded private property.
  • Leone v. Maui County, Hawaii – This is yet another property rights case of consequence to small business landowners facing draconian regulation. While the Supreme Court has said that government must pay just compensation when denying an owner economically beneficial uses, numerous courts have held that an owner must also suffer a complete loss of all value in the land before government will be required to pay compensation for a “taking.” We’ve asked the Supreme Court to rule that compensation is required whenever the owners have been denied the fundamental right to build on their land—regardless of whether their property retains some residual value.

While the Supreme Court only accepts review in a handful of cases every year, we will continue to flag issues of the greatest concern to small business.

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