By Karen R. Harned
September 9, 2019 at 5:00 am ET
The Supreme Court’s latest term ended earlier this summer, and its upcoming session is set to start this fall. This lull is the perfect time to focus on something that’s often overlooked during the rest of the year: How does the Supreme Court affect the engine of our economy — American small business?
This important question is usually drowned out by the big-ticket political and social issues that dominate the press. That’s even true in cases that deal most with small businesses. For example, the National Federation of Independent Business took the fight against ObamaCare to the Supreme Court in 2012, in NFIB v. Sebelius. Health care costs have been our members’ top concern for more than 30 years, and when five Justices upheld Obamacare, they struck a blow against small businesses nationwide.
Small businesses don’t ask for the headlines, but they do ask for the highest court in the land to do what’s right. Their voices deserve to be heard, and at NFIB, we make sure the Justices are listening to the concerns of our members. The Supreme Court needs to know who its actions help or hurt: More than 30 million American small businesses employing nearly 60 million workers.
These businesses and workers are especially affected by government regulations — our members’ second-biggest concern. The Court dips into this broad bucket more than any other, hearing dozens of regulatory cases every year.
Consider the 2018 term. NFIB closely watched and participated in several cases, and the results were generally positive. Whereas in previous years the Court let regulators run amok, now a majority of Justices are making bureaucrats accountable again.
For example: Should courts defer to government agencies when interpreting regulations? The Court used to say “yes,” even though it led to rules and mandates that are too numerous and too vague, imposing burdensome costs on companies and workers alike. In Kisor v. Wilkie, we told the Court as much, showing how deference to regulators damages small businesses. The Justices partially agreed, telling judges that they have an obligation to decide upon the best meaning of ambiguous regulation, and that deference is only appropriate in extremely limited circumstances.
While we wanted even more, small businesses see this as a win.
The same is true in the Court’s recent ruling on whether bureaucrats can impose regulations without weighing the costs against the benefits. In Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, the U.S. Fish and Wildlife Service thought it could essentially ignore the costs when designating “critical habitat under the Endangered Species Act” — an action that triggers tremendous restrictions for affected small business landowners. The government’s action cost companies millions of dollars, with little-to-no discernible benefit for endangered animals.
Fortunately, the Supreme Court told the bureaucrats to go back and take a careful look at the damage they did — another win for small business.
The Court also ruled in favor of property rights last term in Knick v. Township of Scott. The justices opened the federal courthouse doors for small business landowners fighting for their right to receive just compensation for regulatory takings. For nearly 35 years, small businesses were denied access to the federal courts when seeking to defend their property rights — now they’re free to do so, and vindicate their rights. And finally, in yet another underappreciated case, the Court ruled in favor of small business privacy. The justices ruled, in the case of Food Marketing Institute v. Argus Leader, that confidential business information cannot be released to the public. Chalk up two more wins for small business.
It’s heartening to see the Supreme Court take the side of small business in so many cases. The victories of the past are hopefully a preview of the future. The next term is likely to see even more causes that will affect millions of small businesses’ ability to succeed and contribute to their communities.
As the Justices decide which cases to hear, the success of America’s small businesses should factor into their deliberations — and their decisions. They may not always drive the legal headlines, but small businesses do drive the economy, day in and day out. We’ll continue to advocate for their rights at the highest court in the land, because the Supreme Court is a big deal for small business.
Karen R. Harned is executive director of the National Federation of Independent Business Small Business Legal Center.
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