FALL 2024

52 THE DISTRIBUTOR’S

52 THE DISTRIBUTOR’S LINK Jim Truesdell James Truesdell is Chairman of Brauer Supply Company, a distributor of specialty fasteners, insulation, air filtration, and air conditioning with headquarters in St. Louis. Mr. Truesdell is adjunct professor at Saint Louis University and Webster University. An attorney and frequently published writer, he is the author of “Total Quality Management: Reports From the Front Lines”. SUPREME COURT’S OVERTURNING CHEVRON DEFENSE CHECKS AGENCY OVERREACH One of the great theoretical debates that has swirled around political circles in the past few years is the impact of what some call “the Deep State”. This is referring to a supposed entrenched corps of full time civil servants who operate independently of elected leaders to implement their own policy goals through the unilateral creation of interpretive agency regulations. For the past four decades this has been a more distinct possibility because of a decision of the U.S. Supreme Court in the Chevron case (1984) which held that, where statutes are ambiguous in meaning, courts should give deference to regulations that the affected government agency has promulgated to flesh out the unanswered questions left by the statute. This has been used, conservatives allege, to expand agency power and push regulations in a more progressive direction rather than honoring evident intents of the laws which were passed. This gives a great deal of power to unelected agency bureaucrats to shape our society and our commercial markets toward a more all encompassing government control and to perhaps impractical utopian ideas being pushed by government employees and their political allies. On June 28 of this summer the Supreme Court put a check on this by clearly reversing the Chevron precedent in the case of Loper Bright which specifically overturned Chevron and provided that Courts must exercise their independent judgment to decide whether an agency has acted within its statutory authority as required by the Federal Administrative Procedure Act. Chief Justice Roberts wrote that courts need not defer to the agency’s interpretation of the law merely because the statute is ambiguous. As sometime targets of agency sanctions and penalties, small businesses (of which wholesale distributors are often prime examples), have been among those who have suffered from CONTRIBUTOR ARTICLE the Chevron rule. Along with the U.S. Chamber of Commerce the small business trade associations have generally welcomed the new ruling. From the other side of the political aisle, Democrats have moved to strike back in defense of the administrative state’s prerogatives. On July 23 Senators Elizabeth Warren of Massachusetts, Chris Van Hollen of Maryland, Edward Markey of Massachusetts, and Independent Bernie Sanders of Vermont introduced the Stop Corporate Capture Act which would overturn the Supreme Court’s recent ruling and reinstate the Chevron deference. This has for many decades been an important tool for federal civil servants to make and enforce regulations. Warren and her co-sponsors’ bill would not only reinstate Chevron by making it into a specific statutory law, but would make it easier for agencies to push through their regulations by streamlining the traditional 30 day comment period in response to new regulation proposals and require those filing public comments to disclose any industry-funded research or possible conflicts of interest. It is an overt action to not only restore the default power of government agencies but also to stack the deck clearly in favor of unelected civil servants who are likely to have a vested interest in growing the size and power of government. Democratic Representative Pramila Jayapal of Washington has introduced a similar bill in the House of Representatives. The Court’s new Loper ruling will have little instant effect because it will not force a reappraisal of previous court rulings. The Court’s opinion, written by Chief Justice John Roberts, recognizes the validity of previous precedent creating holdings. It will be changing interpretive methodology going forward. CONTINUED ON PAGE 118