Is a New Supreme Court Judge Good News for Small Business?

Date: March 20, 2017

Small business owners will be watching Neil Gorsuch’s upcoming confirmation hearing closely. Here's why.

Supreme Court nominee Neil Gorsuch begins his confirmation hearing today, potentially spelling good news for small business owners.

After eight years of fighting executive overreach in Congress and the courts, small business owners are eager for a judge who respects the separation of powers among branches of government–Judge Gorsuch does just that. NFIB’s review of his record shows a judge who both applies the actual text of the law and the original meaning of that text at the time it became law, rather than changing it to fit personal views.

“Judge Gorsuch has been very firm on confining regulatory agencies to the text of the law,” said Juanita Duggan, NFIB’s president and CEO. “Regulatory agencies often try to expand their own authority by stretching the law beyond what Congress wrote. We are currently fighting against multiple regulatory agencies that did exactly that.”

Specifically, NFIB is challenging several major regulations, including the EPA’s Waters of the U.S. Rule, the Department of Labor’s Overtime Rule, and the EPA’s Clean Power Plan. Each of the respective agencies overstepped their authority in moves that are emblematic of the bureaucratic overreach that “is killing small business,” Duggan said. 

Moving in the Right Direction 

“Judge Gorsuch’s willingness to challenge the Chevron Doctrine, under which the courts often defer to regulatory agencies on the interpretation of statutes, is a very positive signal to small businesses,” Duggan said.

The Chevron deference was the basis for former President Barack Obama’s Clean Power Plan, according to The Atlantic. Gorsuch wrote in a court opinion in August that the Chevron deference permits, “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”  

Gorsuch also represents a numbers game. In NFIB v. Sebelius, the landmark case against Obamacare, the costly healthcare law was upheld by only one vote. Just one additional Supreme Court justice who applies the law as it is written, instead of stretching it to suit policy preferences, could serve as a turning point for future cases.

Gorsuch currently sits on the 10th Circuit Court of Appeals in Denver. He graduated from Harvard, Oxford, and Columbia, and has clerked for two Supreme Court justices, according to Politico. President Donald Trump nominated Gorsuch on Jan. 31 to fill the vacant Supreme Court seat left by Justice Antonin Scalia’s death.

Gorsuch’s hearing is expected to run for at least four days, with a Senate vote to confirm following. Karen Harned, executive director of the NFIB Small business Legal Center, will testify on behalf of small business at the hearing this week. You can watch the proceedings live here.

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