Today the NFIB Legal Center filed an amicus brief asking the Supreme Court to take up an important case on behalf of a small business owner who has been denied the right to raise a basic defense to a potentially illegal regulation under which he has been sued. At issue in Walburg v. Nack, is the basic right of a defendant to mount a full and adequate defense when charged with violating a potentially ultra vires federal regulation. As we argue in our brief, the right to immediately raise a constitutional ultra vires defense is important to anyone charged with violating federal law.
Since small businesses must navigate through perpetually evolving multifarious regulatory requirements—and usually without resources to hire in-house compliance officers—small business owners are especially vulnerable to civil lawsuits predicated upon alleged violations of obscure federal regulations. In such a case, it is fundamentally important that small business owners be allowed to contest the legality of a regulation that they have been charged with violating. Unfortunately the Eighth has joined with the Seventh Circuit—and now the Sixth Circuit—in holding that defendants, in privately initiated civil suits, are without jurisdiction to raise ultra vires defenses to enforcement of FCC regulations. The result is a miscarriage of justice.
This case raises a matter of grave concern to the small business community, and frankly for any American who might be charged with violating an illegally adopted regulation. For more on the case, check out Karen Harned’s Real Clear Politics op-ed.