A Matter of Grave Concern: NFIB Legal Speaks-Up for the Right to Raise a Constitutional Defense

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.

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About Luke Wake

Luke A. Wake is a senior staff attorney at the NFIB Small Business Legal Center. Wake has particular expertise on environmental and land use issues, and has worked on numerous other constitutional issues and matters of importance to small business owners. He is an ardent defender of private property rights, which he believes are essential to the free enterprise system and the foundation of American liberty. As a strong advocate of individual rights and economic liberties, he has built his career defending small business interests. Since joining the NFIB Legal Center, Wake has focused on a whole host of issues, from employment law matters to regulatory compliance. In addition to serving as a resource for small business owners, Wake remains committed to the Legal Center’s pledge to ensure that the voice of small business is heard in the nation’s courts. He is also working to advance small business interests in law review articles, including publications in the Berkeley Journal of Law & Ecology, the Texas Journal of Law and Politics, and Competition Magazine. See R.S. Radford & Luke A. Wake, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q. 731, 746-747 (2011); Damien M. Schiff, Luke A. Wake, Leveling the Playing Field in David v. Goliath: Remedies to Agency Overreach, 17 Tex. L. Rev. & Pol. 97 (2012); Jarod M. Bona and Luke A. Wake, The Market-Participant Exception to State-Action Immunity From Antitrust Liability, J. of Antitrust and Unfair Competition of the State Bar of Ca., Vol. 23, No. 1, 156 (Spring 2014); James S. Burling and Luke A. Wake, Takings and Torts: The Role of Intention and Foreseeability in Assessing Takings Damages, in Condemnation 101: Making the Complex Simple in Eminent Domain 449-51 (ALI-ABA Committee on Continuing Professional Education eds. 2011). Before joining the Legal Center’s team, Wake completed a prestigious two-year fellowship as an attorney in the Pacific Legal Foundation’s (PLF) College of Public Interest Law. Wake is a graduate of Case Western Reserve University School of Law in Cleveland Ohio. He is a member of the California Bar, the District of Columbia Bar, and the U.S. Supreme Court Bar. He completed his undergraduate studies at Elon University in North Carolina in 2006 where he focused on political theory and corporate communications.
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