The
selection of a new Supreme Court justice following the death of Antonin
Scalia on Saturday is shaping up to be a protracted struggle. Until a
new candidate is confirmed, the high court's conservative and liberal
members will remain pretty much deadlocked. And that means several cases
important to small business--dealing with issues including
health care,
immigration, unions, and
small business contracting--may leave lower court rulings standing
for some time.
Here are five cases that affect business that could be deadlocked until a ninth justice is confirmed.
1. United States vs. Texas
In late 2014, President Obama signed an
executive order
that would give legal status to approximately 11 million undocumented
immigrants who reside in the U.S. Texas and 25 other states immediately
sued to overturn the order. Last May the U.S. Court of Appeals for the
Fifth Circuit sided with the plaintiffs and issued an injunction against
the order. A split decision would keep the injunction in place, and
potentially send the case back to the lower courts for yet more legal
wrangling. Businesses seeking an expanded pool of workers will continue
to be in limbo.
2. Zubik vs. Burwell
This is the most recent salvo by religious organizations against the
Affordable Care Act's mandate for comprehensive health care coverage,
which includes some forms of birth control. In 2014, in
Burwell v. Hobby Lobby Stores,
the Supreme Court granted a strengthened religious exclusion for
private companies that objected to the ACA's coverage of birth control.
An evenly split decision in
Zubik is likely to leave the high
court's most recent ruling, which allows for a religious accommodation
to the mandate, without taking it further.
3. Friedrichs vs. California Teachers Association
The case involves free speech issues related to whether public-sector
unions can collect fees from non-union members. Lower courts let stand
previous case law that allow public unions to do so. Scalia, in initial
questioning in January,
showed his antipathy to such protections. A split court would let the
lower court judgments stand, which would be a win for unions. That could
filter into the private sector, and affect small business labor
relations, particularly in so-called
right to work states.
4. Halo Electronics v. Pulse Electronics
It's possible
patent troll
cases might not split the high court along ideological lines. In fact,
in 2014 when the last major cases involving such infringements were
decided, the court ruled unanimously against patent trolls. (Sometimes
called non-practicing entities, patent trolls purchase rights to expired
or soon-to-expire patents and then sue businesses for infringement,
with no other goal than a quick monetary settlement.) But without a
majority decision on Halo, it could be more difficult for district
courts to award attorneys' fees to prevailing parties in patent troll
cases, which every year sap billions of dollars in such fees.
5. Kingdomware Technologies, Inc. v. United States
The U.S. government is the
largest supplier
to small businesses in the U.S., doling out hundreds of billions of
dollars worth of contracts each year. Iin recent years, various federal
agencies have strengthened efforts to award more contracts to
economically disadvantaged businesses, including veteran-owned
companies. This case gets to the heart of what are often called
set-asides in government contracting for small business. Kingdomware is a
small, veteran-owned company based in Waldorf, Maryland, whose owner
sued the Department of Veteran Affairs in 2012 for awarding a contract
to a non-veteran-owned business. A split court might leave
unsettled questions of how contracts are offered.
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