Garland likely would be no friend of business on high court

Date: April 03, 2016 Last Edit: April 05, 2016

As published in the Orange County Register March 31, 2016.

Garland likely would be no friend of business on high court

by Tom Scott, State Executive Director, NFIB California

President Obama has nominated District of Columbia Circuit Judge Merrick Garland to replace the late Justice Antonin Scalia on the Supreme Court. 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.

The consequences for the economy, and especially for small businesses, could be harsh and long-lasting. That’s why legal experts for the National Federation of Independent Business, the country’s leading advocate for small-business owners, 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.

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 Constitution’s 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.

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. 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 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.

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 U.S. 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 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.

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.

Tom Scott is California executive director for the National Federation of Independent Business.

Subscribe For Free News And Tips

Enter your email to get FREE small business insights. Learn more

Get to know NFIB

NFIB is a member-driven organization advocating on behalf of small and independent businesses nationwide.

Learn More

Or call us today

© 2001 - 2022 National Federation of Independent Business. All Rights Reserved. Terms and Conditions | Privacy