Federal regulation touches nearly every aspect of our democracy, but this Supreme Court term the far-right legal movement has regulatory agencies—and their ability to deliver for people and communities—in its crosshairs.
Corner Post v. Federal Reserve is the latest salvo by special interest efforts to undermine the government’s ability to deliver for people and communities by way of a radical legal argument that, if accepted, could dramatically expand the scope of legal challenges to our regulatory framework.
In April 2021, two North Dakota trade associations—the North Dakota Retail Association and the North Dakota Petroleum Marketers Association—filed this case under the name North Dakota Retail Association v. Board of Governors of the Federal Reserve System. The Federal Reserve Board filed a motion to dismiss the case for lack of jurisdiction, saying that the six-year statute of limitations had elapsed. In response, the trade associations added a third plaintiff, Corner Post, Inc., a truck stop which had first opened in 2018. Nevertheless, the district court dismissed the suit with respect to all three plaintiffs, saying that their claims accrued at the time that the rule was enacted in 2011. The Court of Appeals for the Eighth Circuit affirmed the decision of the district court.
In September 2023, the Supreme Court agreed to review the case—specifically the question about the statute of limitations under the Administrative Procedure Act (APA). The APA provides for a snapshot-in-time review of an agency’s decision-making process, and affords potential plaintiffs six years in which to bring a challenge to those decisions. Corner Post could have broad consequences for regulators if the Supreme Court agrees that litigants can challenge rules that have been on the books for years beyond the APA’s six-year time limit.
A harmful ruling in this case—coupled with bad decisions in other Supreme Court cases Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo—could open up a Pandora’s box of extremist attacks on a wide swath of regulations.
A coalition of small business interests urge the Supreme Court to refute arguments in Corner Post v. Federal Reserve that could open the door for extremists to expand their legal threats against longstanding, proven regulations.
If successful, the far-right legal movement’s affront to government agencies would be particularly destabilizing to small businesses who rely on regulatory certainty to grow, thrive, and compete. Small businesses are uniquely vulnerable to regulatory uncertainty, because they don’t have huge legal or compliance departments, easy access to finance, or lobbyists to consistently push for more favorable legal changes.
On December 20, 2023, Democracy Forward filed a brief on behalf of Small Business Majority, Main Street Alliance, American Sustainable Business Council (ASBC), South Carolina Small Business Chamber of Commerce, and Businesses for Conservation and Climate Action (BCCA) urging the Court to decline the invitation to dramatically widen the playing field for legal challenges against regulations that seek disruptive outcomes.
Facial challenges to agency regulations that result in eliminating the regulation or injunctions against their enforcement can have substantial immediate effects that give businesses and agencies little-to-no time to adapt. Our brief notes that expanding the scope of potential legal challenges to regulations leaves many longstanding, settled regulatory regimes vulnerable to attack—fueling a state of uncertainty and instability for small businesses that could be fatal. If the Court agrees that litigants can challenge regulations that have been on the books for years and that the statute of limitations is meaningless, extremists can attack long standing regulations that govern a range of issues across our democracy.