Property Rights and Environmental Concerns Highlight Supreme Court 2022-23 Term

October 4, 2023

The NFIB Small Business Legal Center secured victories in the 2022-23 SCOTUS term and previewed cases to watch in the upcoming term

Property Rights and Environmental Concerns Highlight Supreme Court 2022-23 Term

The U.S. Supreme Court decided cases during its last term that will have an immediate effect on small businesses throughout the country. NFIB Legal Center Executive Director Elizabeth Milito joined the Small Business Rundown to discuss key cases from the term and preview the cases of concern to watch in the new Supreme Court session that began on October 2. During the previous term, NFIB filed amicus briefs in seven cases including Sackett v. EPA, concerning the reach of the federal government in regulating water permits (WOTUS), and Glacier Northwest, Inc. v. International Brotherhood of Teamsters concerning private property rights for businesses. “Property rights are a big deal, and small businesses had a great term at the Supreme Court,” said Milito. “Our guiding principle is what impact these cases have on small business.” The NFIB Small Business Legal Center has filed five amicus briefs and oral arguments were heard in two cases the first week of the U.S. Supreme Court’s new term. Loper Bright Enterprises v. Raimondo NFIB filed an amicus brief in the case Loper Bright Enterprises v. Gina Raimondo at the U.S. Supreme Court. The case concerns whether federal courts should stop deferring to agency interpretations of law simply because they are “reasonable.” NFIB argued the Court should abandon what is commonly referred to as Chevron deference, a concept established in Chevron v. Natural Resources Defense Council. “Small business owners consistently rank unreasonable government regulations as a top problem in running their businesses,” said Milito. “This case presents an opportunity for the Court to relieve some of that regulatory hardship on small businesses by overturning Chevron. We urge the Supreme Court to abandon Chevron deference and reverse the lower court’s decision.” NFIB’s brief argues five main points:

The burden of unchecked and unexamined regulation crushes small businesses;
Decisions from prior cases should not deter the Court from abandoning Chevron;
States have led the charge in abandoning Chevron deference by demonstrating a more constitutionally appropriate path forward;
Chevron has led to agencies acting to gain power, legislative indifference, and judicial passivity; and
Courts already have the skills and interpretive rules to replace Chevron

Acheson Hotels LLC v. Laufer NFIB joined a coalition of business groups in filing an amicus brief in the case Acheson Hotels, LLC v. Laufer at the U.S. Supreme Court. The case asks whether, under the Americans with Disabilities Act (ADA), a self-appointed “tester” has the legal standing under Article III of the Constitution to challenge a business’s website accessibility, even though the tester lacks any intention of physically visiting that business. NFIB previously filed an amicus brief urging the Court to hear the case. “This case highlights the uncertainty for small businesses when complying with the ADA and the applicability of websites,” said Milito. “Unfortunately, small businesses who are doing their best to comply with numerous government regulations and compliance requirements, are at risk of costly and time-consuming litigation due to ‘tester’ lawsuits like the one in this case. Small businesses urge the Court to limit the practice of distant parties weaponizing the ADA to harm small businesses.” NFIB filed the amicus brief with the Restaurant Law Center, American Hotel and Lodging Association, Rhode Island Hospitality Association, Puerto Rico Restaurant Association, New Hampshire Lodging & Restaurant Association, Massachusetts Restaurant Association, and HospitalityMaine. Consumer Financial Protection Bureau v. Community Financial Services Association of America NFIB joined an amicus brief in the case Consumer Financial Protection Bureau v. Community Financial Services Association of America, Limited at the U.S. Supreme Court. The case concerns whether the funding structure of the Consumer Financial Protection Bureau (CFPB) violates the Constitution. “The CFPB has a direct impact on small businesses as it has wide enforcement power and authority over those who engage in specified consumer financial activities in the economy,” said Milito. “Currently, the CFPB is funded without Congressional oversight through the appropriations process, which is unconstitutional and leads to the Bureau overstepping its bounds. Small businesses are at risk of costly penalties and burdensome inspections. We ask the Court to provide limited and meaningful relief and affirm the lower court’s ruling.” The brief argues three main points:

The Bureau’s funding mechanism violates the Constitution;
A decision affirming the judgment will provide targeted and meaningful relief for those subject to the CFPB; and
The Court can mitigate disruptions in the marketplace by crafting a narrow remedy.

Culley v. Marshall NFIB filed an amicus brief in the case Culley v. Steven Marshall, Attorney General of Alabama at the U.S. Supreme Court. The case concerns civil asset forfeitures and whether the due process clause requires a post-seizure probable cause hearing. “Small business owners who rent, sell, and conduct cash transactions are particularly vulnerable to seizures like the one highlighted in this case,” said Milito. “Without a hearing, small business owners are forced to go through a lengthy and costly forfeiture process, where they may not recover their property for years. NFIB urges the Court to reverse the Eleventh Circuit’s ruling and establish that innocent small business owners are entitled to a prompt post-deprivation hearing.” NFIB’s brief describes how small businesses are targeted and injured in the absence of clear constitutional guardrails around civil asset forfeiture. The brief highlights three distinct harms to small businesses:

Civil asset forfeiture subjects people who drive vehicles, many of them small business owners, to roadside seizures.
The financial burden for the public’s illegal conduct is often passed onto businesses through civil asset forfeiture.
Civil asset forfeiture punishes business owners for the conduct of employees, even when the employee acts outside of the scope of employment.

Moore v. U.S. NFIB filed an amicus brief in the case Moore v. United States at the U.S. Supreme Court, arguing that the Court should clarify the proper interpretation of the Sixteenth Amendment and restore the limitation on Congress’ taxing power. The case questions whether the Sixteenth Amendment authorizes Congress to tax unrealized sums without apportionment among the states. “The Ninth Circuit’s current ruling will negatively impact small businesses,” said Milito. “If reinvestment into a small business is considered ‘income,’ then small business owners will face an increased tax on unrealized gains. The current ruling would also greatly expand Congress’ power by allowing Congress to directly tax property interests without apportionment. We ask the Supreme Court to reverse the lower court’s decision and clarify the proper limits on Congress’s taxing power.” NFIB filed the amicus brief with The Buckeye Institute, making two main arguments:

The Court of Appeals’ decision is erroneous and displaces settled constitutional limits on federal taxation, and
The Mandatory Repatriation Tax is severable from the remainder of the Tax Cuts and Jobs Act.

The NFIB Small Business Legal Center protects the rights of small business owners in the nation’s courts. NFIB is currently active in more than 40 cases in federal and state courts across the country and in the U.S. Supreme Court. More information and analysis are available on the newest Small Business Rundown podcast episode. To follow updates on these cases, visit the

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Property Rights and Environmental Concerns Highlight Supreme Court 2022-23 Term

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