Latest News

The Supreme Court’s NOT Top 10: Cases the Justices Wrongly Rejected Last Term

WLF Legal Pulse - Fri, 07/31/2015 - 3:59pm
The usual spate of articles by Supreme Court scribes pronouncing the Roberts Court staunchly pro-business were noticeably sparser as the latest term ended. When journalists are reduced to using the Obamacare and same-sex marriage cases as their main exhibits to prove the Supreme Court’s supposed pro-business tilt, you know it wasn’t a banner year for […]
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Ninth Circuit Decision Allowing Appeal of Right from Order Denying Class Certification Is Ripe for Supreme Court Review

WLF Legal Pulse - Thu, 07/30/2015 - 5:00pm
Rule 23(f) of the Federal Rules of Civil Procedure gives appeals courts unfettered discretion in deciding whether to permit an interlocutory appeal from a class certification decision. Most circuits have exercised that discretion sparingly. But a U.S. Court of Appeals for the Ninth Circuit decision issued last week affirmed that circuit’s unique rule: plaintiffs (but […]
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Kline Statement: Hearing on "Reviewing the Policies and Priorities of the U.S. Department of Health and Human Services"

Education & the Workforce Committee - Tue, 07/28/2015 - 12:00am
As is often the case when an agency secretary appears before the committee, we have a lot of ground to cover in a short period of time. That is especially true for an agency as big, powerful, and costly as the Department of Health and Human Services.


By the end of the current fiscal year, HHS is expected to spend approximately $1 trillion administering numerous programs affecting millions of Americans, including child care, welfare, health care, and early childhood development. At a time when families are being squeezed by a weak economy and record debt, we have an urgent responsibility to make sure the federal government is operating efficiently and effectively. It is a responsibility we take seriously, which is why this hearing is important and why we intend to raise a number of key issues.

For example, we are interested to learn about the department’s progress implementing recent changes to the Child Care and Development Block Grant program. Last year, the committee helped champion bipartisan reforms of the program to strengthen health and safety protections, empower parents, and improve the quality of care. This vital program has helped countless moms and dads provide for their families, and we hope the department is on track to implement these changes quickly and in line with congressional intent.

Another vital program for many low-income families is Head Start. Earlier this year, the committee outlined a number of key principles for strengthening the program, such as reducing regulatory burdens, as well as encouraging local innovation and better engagement with parents. The committee then solicited public feedback that would help turn these principles into a legislative proposal. 

It was in the midst of this effort to reform the law that the department decided to launch a regulatory restructuring of the program. Some of the department’s proposed changes will help improve the program; however, the sheer scope and cost of the rulemaking raises concerns and has led to some uncertainty among providers who serve these vulnerable children. Strengthening the law is a better approach than transforming a program through regulatory fiat, and we urge the administration to join us in that effort.

These two areas alone could fill up most of our time this morning, and I haven’t even mentioned services provided under the 1996 welfare reform law and the Older Americans Act. Of course, as you might expect, Secretary Burwell, on the minds of most members are the challenges the country continues to face because of the president’s health care law. Families, workers, and employers are learning more and more about the harmful consequences of this flawed law. For example:

  • Patients have access to fewer doctors. To control costs, it is estimated that insurance plans on the health care exchanges have 34 percent fewer providers than non-exchange plans, including 32 percent fewer primary care doctors and 42 percent fewer oncologists and cardiologists.

  • The law is plagued by waste and abuse. In 2014, investigators with the nonpartisan Government Accountability Office used fake identities to enroll 12 individuals into subsidized coverage on a health care exchange. Just this month, GAO announced 11 of the 12 fake individuals are still enrolled and receiving taxpayer subsidies.

  • More than seven million individuals paid a penalty for failing to purchase government-approved health insurance, roughly 25 percent more than the administration expected under the worst case scenario.

  • According to the Associated Press, at least 4.7 million individuals were notified that their insurance plans were cancelled because they did not abide by the rigid mandates established under the health care law.

  • The nonpartisan Congressional Budget Office estimates the law will result in 2.5 million fewer full-time jobs. This reflects what we’ve heard over and over again from employers who have no choice but to cut hours or delay hiring because of the law’s burdensome mandates.

  • Health care costs continue to skyrocket. According to the New York Times, health insurance companies are seeking rate increases of “20 percent to 40 percent or more,” suggesting markets are still adjusting to the “shock waves set off by the Affordable Care Act.”

Finally, after all the mandates, fraud, loss of coverage, fewer jobs, higher costs, and nearly $2 trillion in new government spending, it’s estimated more than 25 million individuals will still lack basic health care coverage. And yet, just last month, President Obama said the law “worked out better than some of us anticipated.” Of course, for those who opposed this government takeover of health care, this is precisely what we anticipated and it is precisely why the American people deserve a better approach.


Applying High Court Jurisdiction Rulings, Federal Judge Shuts Out Suit Against Foreign Soccer Federation

WLF Legal Pulse - Mon, 07/27/2015 - 12:37pm
Guest Commentary By Ashley Snell, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law. After finding some success in its concussion-related class actions against professional and amateur football associations, noted plaintiffs’ firm Hagens Berman has taken aim at the world’s most popular sport—soccer. The firm […]
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Ninth Circuit Adds to Landowners’ Woes with Another Endangered Species Act Litigation Loss

WLF Legal Pulse - Mon, 07/27/2015 - 12:08pm
Guest Commentary By Rachael Stein, a summer law clerk at Washington Legal Foundation who is entering her third year at the University of Georgia School of Law this fall. The U.S. Court of Appeals for the Ninth Circuit recently decided that the National Marine Fisheries Service (NMFS) need not perform a thorough balancing of the […]
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Walberg Statement: Hearing on "Examining the Costs and Consequences of the Administration's Overtime Proposal"

Education & the Workforce Committee - Thu, 07/23/2015 - 12:00am
Just over a month ago, this subcommittee convened to discuss the need to modernize the confusing and outdated regulations implementing federal wage and hour standards. At the time, the administration had not yet released its overtime proposal, but several of our witnesses were already worried about what the proposal would look like and the consequences for workers and job creators.


Recognizing this administration’s propensity for executive overreach, I shared many of those concerns. But I was still hopeful that somehow, this time might be different – that somehow the administration would listen to all of the concerns, consider all of the data, and put forward a proposal that would help do some good without doing any harm. As it turns out, that optimism was misguided, much like the rule the administration eventually proposed.

In the weeks since the administration unveiled its overtime proposal, even more concerns have been raised about the impact it would have on both employees and employers. Various studies and analyses have shown the administration’s plan would result in billions of new costs for employers annually – a reality that is tough for many employers in this economy, but even tougher on small businesses and nonprofits. Unfortunately, the proposal’s anticipated consequences extend far beyond added costs and could have much more serious implications for many Americans.

Of all the concerns we’ve heard about this proposal, the ones I find most alarming are those that it will limit flexibility and opportunity in the workplace. As employers struggle to cope with the added costs of these new overtime rules, many salaried employees will be demoted to hourly workers with lower pay and stricter schedules. With that shift comes fewer opportunities for on-the-job training, talent development, and managerial experience. All of which leads to fewer opportunities to advance up the economic ladder.

One of the most inspiring things about the American workforce is that a crew member at a fast-food restaurant can work hard, earn a spot in management, and eventually go on to become a leader at a major U.S. business. That’s the American Dream, one that all policymakers should work to encourage, not stifle. I’m sure Mr. Williams will have more to say on that topic. Unfortunately, if the administration’s proposal has the effect many anticipate it will, stories like that of Mr. Williams will become harder to come by.

In as much as the administration’s proposal is flawed for what it would do, it’s equally disappointing in what it doesn’t do. It doesn’t address the complexity of current regulations, and it doesn’t reduce unnecessary litigation. As Chairman Kline and I said when the proposal was first unveiled, it’s a missed opportunity. What we need instead – and what the American people deserve – is a balanced approach that will strengthen employee safeguards, eliminate employer confusion and uncertainty, and encourage growth and prosperity for those working hard to make a living. From what we’ve heard so far, the administration’s proposal is not that approach.

This committee has held numerous hearings and explored various efforts over the years to improve the rules and regulations guiding federal wage and hour standards. We’ve heard from employees and employers alike that the current system is too complex, burdensome, and outdated. And we’ve seen studies that show related litigation is on the rise. For all these reasons, we will continue to urge the administration to improve these rules and regulations responsibly and in a way that doesn’t destroy opportunities for hardworking Americans.

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Update: New Jury Again Exonerates KC Royals’ Mascot in Hot-Dog Incident

WLF Legal Pulse - Wed, 07/22/2015 - 5:17pm
Almost exactly a year ago in the WLF Legal Pulse,  WLF general counsel Mark Chenoweth (a Kansas native and Royals fan) called foul on the Missouri Supreme Court for ordering a new trial in the case of a fan that alleged a hot dog, tossed by the Kansas City Royals’ mascot Sluggerrr (pictured left), caused an eye […]
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Kline Statement: Markup of H.R. 511, the Tribal Labor Sovereignty Act

Education & the Workforce Committee - Wed, 07/22/2015 - 12:00am

Today the committee will consider H.R. 511, the Tribal Labor Sovereignty Act of 2015. This important legislation will prevent the National Labor Relations Board from exerting jurisdiction over Native American businesses operating on tribal lands.

As we all know, policies governing labor-management relations are extremely complex and controversial. More than 80 years after its enactment, the National Labor Relations Act continues to be a source of heated debate in the United States Congress and in workplaces across the country. No doubt that debate will continue to take place in this committee as we work to ensure the law is implemented fairly and objectively.

But that’s a debate for another time. The bill before us is not about union workers versus nonunion workers; it’s not about big business versus big labor; and it’s not about Republican versus Democrat. The bill we are considering today is about whether Native Americans should be free to govern employee-employer relations in a way they determine is best for their workplaces.

Over the last 10 years, the National Labor Relations Board has taken an approach contrary to the rights of Native Americans and long-standing labor policies. In a 2004 decision, the board broke from more than 30 years of precedent and decided it has jurisdiction over tribal activities. Since that time, the board has determined on a case-by-case basis whether a business on tribal land is for commercial purposes, and if it is, the board will assert its jurisdiction over that business.

At a subcommittee hearing held in June, Rodney Butler, chairman of the Mashantucket Pequot Tribal Nation of Connecticut, criticized the board’s decision as an “affront to Indian Country.” He went on to say that the board’s flawed logic “suggests that Indian tribes are incapable of developing laws and institutions to protect the rights of employees who work on our reservations.” Jefferson Keel, Lieutenant Governor of the Chickasaw Nation, described the board’s approach as “incompatible with the very nature of sovereignty and self-government.”

Imagine the public outcry we would hear across the country if the board began imposing its will on enterprises owned and operated by state and local governments, such as schools, parks, and recreation centers. Are we supposed to believe that state leaders in California and Connecticut are more capable of managing their affairs than the leaders of the Shakopee and Saginaw Chippewa Indian tribes? Yet for more than a decade, that’s precisely the message the board has sent to Native Americans.

It is time for Congress to right this wrong, and the Tribal Labor Sovereignty Act will help us do just that. The bill amends the National Labor Relations Act to reaffirm that the National Labor Relations Board cannot assert its authority over Indian tribes and enterprises or institutions owned and operated by an Indian tribe on tribal land. This is the same standard that was in place before the board abruptly changed course and it must be the standard that governs the board’s actions moving forward.

I want to thank Congressman Todd Rokita for his leadership on this important issue. Over the years, a number of men and women in Congress have helped lead the fight on behalf of tribal sovereignty. Thanks to their hard work, we are here considering a proposal that will restore to Indian tribes the ability to regulate labor relations in their businesses and ensure they are afforded the same rights and protections enjoyed by state and local government leaders.

Two years ago, President Obama signed an executive order establishing a White House Council on Native American Affairs. Now, I am not usually one to cite favorably an executive order by the president, but I do believe this one is pertinent to today’s meeting. The executive order says:

“The United States recognizes a government-to-government relationship, as well as a unique legal and political relationship, with federally recognized tribes … Honoring these relationships and respecting the sovereignty of tribal nations is critical to advancing tribal self-determination and prosperity.”

That is the essence of why we are here today – to honor and respect the sovereignty of tribal nations. Native Americans have spoken loud and clear: They do not want an unelected and unaccountable federal labor board dictating policies in their workplaces. I urge my colleagues to stand with the Native American community by supporting the Tribal Labor Sovereignty Act.

Rokita Statement: Markup of H.R. 511, the Tribal Labor Sovereignty Act

Education & the Workforce Committee - Wed, 07/22/2015 - 12:00am

Before I explain the technical changes included in the substitute amendment, I’d like to take a minute to discuss the importance of the broader legislation.

As the chairman said, the purpose of this bill is simple: to protect the sovereignty and promote governmental parity, of Native Americans by making it very clear that tribal businesses on tribal lands are free to operate with the same autonomy provided to any other sovereign body.

Since the early 1830s, our courts have held that “tribes possess a nationhood status and retain inherent powers of self-government.” Over the years, there has been widespread agreement on both sides of the aisle that these rights should be protected and that tribes should remain sovereign – free to govern and develop policies that best meet the needs of their members. Unfortunately, in recent years, the National Labor Relations Board has threatened that sovereignty by exerting control over tribal businesses.

For nearly 70 years, the NLRB respected Native American sovereignty, holding that tribes should be free from outside intervention. But in 2004, the board reversed course and overturned long-standing precedent with its San Manuel Bingo & Casino decision. Since then, the board has used a subjective test to determine when and where to exert its jurisdiction over Native American tribes. There shouldn’t be a test, as was said at the hearing.  

Not surprisingly, the Native American community strongly opposed the board’s move, and today, we continue to hear strong concerns with what many consider an attack on tribal sovereignty. Unfortunately, these concerns seem to have fallen on deaf ears at the NLRB as the board continues to exert its authority over Native American tribes, and the problem is only getting worse and is creating uncertainty for tribal governments and tribally owned businesses, often in regions that can least afford it.

At a subcommittee hearing just last month, tribal leaders said they’ve seen “an increasingly aggressive approach to enforcement by the board, which creates unacceptable risks and uncertainties for all tribal nation rights under federal law and to their dignity as sovereigns.” If enacted, the Tribal Labor Sovereignty Act will put an end to the board’s overreach and give authority over labor relations back to tribal governments.

As Dr. Roe said at last month’s hearing, “We should never stand idly by while the sovereignty of Native Americans is threatened.” And that’s why we are here today. The legislation we’re considering will prevent the NLRB from asserting its jurisdiction over businesses owned by Native American tribes on tribal lands. It’s a bipartisan, commonsense proposal that will provide legal certainty to the Native American community and restore a standard that was in place for years before the misguided NLRB San Manuel decision.

I appreciate all that my colleagues have done over the years to move this issue forward, and I am very pleased that we’re taking this next step today. The technical change in the proposed substitute amendment clarifies that the National Labor Relations Act does not apply to tribal enterprises and institutions, as well as the tribal governments themselves. I urge my colleagues to support the substitute, as well as the underlying bill, to help provide Native American tribes the legal clarity and labor sovereignty they deserve.

Regrettable Outcome of Sysco/U.S. Foods Merger Challenge Reflects FTC Has Nothing to Fear from “SMARTER” Act

WLF Legal Pulse - Fri, 07/17/2015 - 11:56am
Featured Expert Contributor – Antitrust & Competition, U.S. Department of Justice Mark J. Botti, Squire Patton Boggs (US) LLP with Anthony W. Swisher, Squire Patton Boggs (US) LLP Late last month, a federal district court judge in Washington, D.C. granted the request of the Federal Trade Commission (FTC) for a preliminary injunction against the proposed […]
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EPA Study on Hydraulic Fracturing’s Drinking Water Impact Puts Anti-Gas Activists on Defensive

WLF Legal Pulse - Fri, 07/17/2015 - 11:39am
Guest Commentary by Chelsie Kidd, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law. On June 4, 2015 the Environmental Protection Agency (EPA) released a much anticipated draft assessment of the potential impacts of hydraulic fracturing on drinking water resources. The draft assessment was conducted […]
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Rep. Bishop: Student Success Act Builds a Better Path Forward for Students

Education & the Workforce Committee - Wed, 07/15/2015 - 12:30pm 

The nation’s one-size-fits-all mandates dictating K-12 education have been letting students down for years. Federal involvement in classrooms is at an all-time high. Yet far too many schools are ill-equipped to make the grade. The Obama Administration has only made a broken system worse by imposing a backdoor education agenda on states and school districts through pet projects and temporary, conditional waivers.

As Education and the Workforce Committee member Rep. Mike Bishop (R-MI) writes in a recent op-ed:

For too long, the Department of Education has disregarded the 10th Amendment and our state’s ability to effectively lead the people it knows best – including our students. It doesn’t make sense to treat Brighton or Rochester, Michigan’s school districts like Brooklyn, New York’s or Milwaukee, Wisconsin’s. There cannot be just one, broad-stroke approach to achieving student success.

Fortunately, the Student Success Act places the country on a new course. Rep. Bishop continues:

While serving as the Senate Majority Leader of Michigan, I saw firsthand how much more effective we could be when control over education decisions was kept at the state versus the federal level. I’ve taken that experience with me to the House Committee on Education and the Workforce, where my colleagues and I have focused on reducing the federal footprint in the classroom.

That’s one of the goals behind the
Student Success Act, which the U.S. House of Representatives passed last week. Its improvements to our K-12 system would give states the freedom to choose what works best for them without the strings attached, including additional protection for states that choose to opt-out of Common Core. Best of all, it empowers parents and educators with greater flexibility by eliminating regulations that monopolize how and where students are taught.

This Congress has a duty to build a better path forward for our children. The
Student Success Act does just that.

Americans deserve a better law, one that will help ensure every child in every school has access to an excellent education. By passing the Student Success Act, Congress has moved one step closer to that goal.

To read the op-ed in Detroit News, click here.

To learn more about the Student Success Act, click here.


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Technology Allows Us to Work Smarter, Faster

NAWBO National - Thu, 07/09/2015 - 1:14pm

Websites. Social networks. Video conferencing. Virtual office technology. Technology is everywhere in business today. It brings us closer together when we’re communities, states or even countries apart. It allows us to connect from virtually anywhere. It streamlines processes and makes us more efficient. It allows us to communicate with our audiences in unique and exciting new ways.

The theme of this issue of NAWBO ONE is technology. We’re proud to feature tech tips from Leslie Fishlock, owner of Geek Girl—a NAWBO media partner that provides training and conferences targeted at helping women become comfortable with using technology in their businesses and everyday lives. From sending mass e-mails to protecting yourself from viruses and hackers to wisely tweeting, posting and sharing, Leslie has great tips for staying safe and savvy when it comes to using technology in your business. Be sure to check them out!

Meanwhile, NAWBO has a major technology launch on the horizon that we’re excited to tell you about. We are in the final stages of introducing a brand-new NAWBO National website that reflects the beautiful new branding we rolled out last year! The site is more user friendly than ever, responsive from any device (PC, tablet or phone) and packed with valuable content, from articles to videos to recorded webinars, that we will update regularly to help our members learn and grow. As part of this, we will offer similarly branded microsites to our chapters to help streamline their website management by providing national content yet allowing for the local chapters to customize and integrate local content. Stay tuned for details in the weeks ahead!

In the spirit of pride as we just celebrated Independence Day, it’s important to remember that we stand united as one voice. We would also like to congratulate the USA Women’s Soccer team for making history and winning the 2015 World Cup! If you didn’t catch it, the tagline of their Nike ad read, “Strong alone. Unstoppable together.” Fantastic! It’s a mantra we can all rally around. Here at NAWBO, we are a community of extraordinary women doing extraordinary things through our businesses and other passions. While technology allows us to work and communicate faster and smarter, it’s the personal connections we make with one another along the way that really make us better together as women business owners.

Along these lines, we are celebrating NAWBO’s 40th anniversary with an incredible and one-of-a-kind event at the National Women’s Business Conference in the fall! I encourage you to join me in San Antonio, Texas, September 27 for our Leadership Boot Camp and September 28-29 for our National Women’s Business Conference. We have three amazing days of personal connections, inspiration and resources planned for you that will truly inspire and change your world. Learn more and register here. I hope to see you in person in September!

—Crystal Arredondo, 2015-2016 NAWBO National Board Chair

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Supreme Court Observations: Michigan v. EPA

WLF Legal Pulse - Tue, 06/30/2015 - 3:52pm
Featured Expert Column – Environmental Law and Policy by Samuel B. Boxerman, Sidley Austin LLP with Ben Tannen, Sidley Austin LLP On June 29, in Michigan v. EPA, the U.S. Supreme Court reversed and remanded EPA’s Mercury and Air Toxics Standards (“MATS”) rule to the D.C. Circuit, holding the agency should have considered costs when […]
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King v. Burwell’s Implications for Employer-Sponsored Health Plans

WLF Legal Pulse - Tue, 06/30/2015 - 1:33pm
Guest Commentary Kim Wilcoxon, Thompson Hine LLP Three years ago, the Supreme Court of the United States announced its decision in NFIB v. Sebelius and upheld the individual mandate under the Patient Protection and Affordable Care Act (ACA). Last week, the Supreme Court announced its decision in King v. Burwell and upheld the Internal Revenue […]
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Attorneys as Qui Tam Relators?: False Claims Act Doesn’t Preempt Ethics Laws and Cannons

WLF Legal Pulse - Tue, 06/30/2015 - 1:12pm
Guest Commentary by Tara Parker, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law. A federal district judge in the Southern District of Mississippi recently reaffirmed something that should be intuitively obvious to most attorneys:  the federal False Claims Act (FCA) does not relieve […]
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Supreme Court Observations: Kimble v. Marvel Entertainment, LLC

WLF Legal Pulse - Mon, 06/29/2015 - 9:19pm
Featured Expert Contributor – Intellectual Property (Patents) Jeffri A. Kaminski, Venable LLP The U.S. Supreme Court recently decided a closely watched case concerning contract rights and patent royalties. In Kimble v. Marvel Entertainment, LLC the Court upheld its long standing precedent and determined that parties cannot agree to patent royalty payments that extend beyond the […]
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