When the Supreme Court ruled in 2012 that the Affordable Care Act is constitutional, the decision dealt a major blow to the National Federation of Independent Business, the lead plaintiff in the case challenging President Obama’s signature health-care law.
Although it lost, the small-business group considered its role in the landmark case, NFIB v. Sebelius, a milestone for the organization — a sign it could hold sway in the legal community as well as the lobbying world.
So when Justice Antonin Scalia died last month, opening the door to a potential shakeup on the high court, the NFIB was ready.
The group, which lobbies for the interests of small businesses in Washington, is the first notable business association to openly oppose the nomination of Judge Merrick Garland, Obama’s choice to replace Scalia. It marks the first time in its 73-year-old history that the NFIB, now under the leadership of new president Juanita Duggan, is weighing in on the Supreme Court nomination process.
“Our experience in the Obamacare suit taught us an important lesson,” Duggan said. “We can’t sit on the sidelines. It’s time for us to get into this game because we’re going to be the plaintiff many times before the Supreme Court. That’s where all our policy decisions seem to be made.”
The NFIB announced its opposition to Garland in an op-ed last week in the Wall Street Journal. But it had been researching Garland and the other reported finalists for weeks. The research indicates Garland consistently rules in favor of regulatory agencies or unions, Duggan said.
The group will continue opposing Garland on social media and plans to issue a “scorecard” on his rulings next week.
“We’re amplifying this message through all our platforms,” Duggan said.
The partisan deadlock in Congress in recent years has heightened the importance of how federal agencies oversee a variety of industries. NFIB, like other lobbying powers, now views litigation against regulations it opposes as integral to its ability to represent its members in Washington.
The NFIB is a plaintiff in three cases that it views as particularly important and that may ultimately be decided by the Supreme Court.
One case challenges the Environmental Protection Agency’s Waters of the United States rule, which expands the definition of which lakes, rivers and other bodies of water fall under the jurisdiction of the EPA or U.S. Army Corps of Engineers. Business and agriculture groups oppose the rule, saying it would greatly limit their ability to make minor changes to their land. There are numerous cases challenging the regulation that are pending in courts throughout the country, and the U.S. Court of Appeals for the 6th Circuit ruled last month that it has jurisdiction to hear them.
Another suit challenges the legality of the EPA’s Clean Power Plan rule, which requires power plants to reduce emissions significantly by 2030 and which businesses say would drive up their energy costs. The Supreme Court last month ruled 5 to 4 to temporarily halt the rule as lawsuits challenging it proceed through the appeals court. The U.S. Court of Appeals for the District of Columbia Circuit is expected to begin hearing arguments in June.
A third suit challenges a National Labor Relations Board rule that businesses worry would speed up union elections. A federal court in Texas upheld the rule last year, but the NFIB appealed the ruling. The U.S. Court of Appeals for the 5th Circuit has heard the case but has yet to issue a decision.
With these legal fights potentially landing at the Supreme Court, NFIB is eager to now play a major role in the lobbying battle over Garland and future nominees.
“The onus was on us this time,” Duggan said. “It would’ve been an omission for us if we had not decided to do this.”