President Barack Obama’s nomination of Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, to replace the late Justice Antonin Scalia on the U.S. Supreme Court roster, remains wrapped in controversy and he has a long row to hoe before donning a robe as Justice Garland. Nevertheless, it is worthwhile to consider what his confirmation might mean for employers. A review of Chief Judge Garland’s recent opinions in labor and employment cases reveals a mixed bag, with the judge ruling against the employer in most cases.

For employers, perhaps the most troubling aspect of Chief Judge Garland’s judicial philosophy is his strong deference to agency determinations. This willingness to defer to administrative decisions, ruling in favor of the National Labor Relations Board in 18 of 22 appeals, has fueled his reputation as a union-friendly jurist. This philosophy of deference, coupled with the Supreme Court’s recent determination in Perez v. Mortgage Bankers Association that administrative agencies are permitted to change their interpretive rules and guidelines without public input, could lead to a Justice Garland approving an ever-greater expansion of agency rulemaking, despite Congressional and public objections. Such a combination of non-public rulemaking and judicial deference to agency action could be harmful to businesses in the face of activist federal agencies.

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