Atlantic Herring v. Alphabet Soup
Capital letters have ruled the American government since 1933. Following President Franklin D. Roosevelt’s implementation of the New Deal, three-letter agencies, also known as “Alphabet Soup Agencies,” have monopolized the American political system. From the FBI to the FDA, sequences of triplet capitals are omnipresent and inescapable. These organizations have become central to the basic function of the American government, collecting taxes, approving medications, and ensuring the domestic and international security of the nation. But thanks to a species of baitfish, conservative billionaire Charles Koch, and the United States Supreme Court, that may no longer be the case.
But thanks to a species of baitfish, conservative billionaire Charles Koch, and the United States Supreme Court, that may no longer be the case.
In 1984, in the case Chevron v. Natural Resources Defense Council, the Supreme Court set a legal precedent that allows government agencies to interpret terms within their own jurisdiction without fear of litigation, unless explicitly directed by Congress. This case, which disputed how the Environmental Protection Agency (EPA) used the word “source,” prevents individuals from suing federal agencies over questions of ambiguous phrasing. Essentially, the government defers to the EPA on what it defines as a “source” of pollution. Similarly, drugs approved by the Food and Drug Administration (FDA) need to be “reasonably safe” under federal law, but it is up to the FDA to decide exactly what that means. This renders three-letter organizations safe from lawsuits if individuals or corporations do not agree with their interpretation or usage of words in their own jurisdiction.
Under the Trump administration in 2020, federal regulators began requiring electronic overfishing monitors for Atlantic herring fishermen. Two groups of fishermen in New Jersey and Rhode Island sued, alleging that the government statute that outlaws overfishing does not authorize the government to use monitors to enforce it. In Loper Bright Enterprises v. Raimondo, the New Jersey case, federal courts have sided with the government, but an appeal is scheduled to appear before the Supreme Court later this year. The appellants have received funding and representation from conservative legal groups including the New Civil Liberties Alliance and the Cause of Action Institute, both of which have ties to billionaire brothers Charles and David Koch, who often finance conservative legal challenges.
Loper Bright Enterprises v. Raimondo poses two questions to the Supreme Court. First, whether the Atlantic herring case fell under Chevron, and second, whether Chevron should be scaled back. The court only agreed to hear the second question, and, in doing so, ensured that the only path to victory for the Koch brothers and the fishermen, who filed as Loper Bright Enterprises, is to overcome 40 years of legal precedent. However, several justices on America’s highest court have indicated they might be open to the idea. In 2022, the conservative majority severely limited the jurisdiction of the EPA in its efforts to combat climate change. Liberal Justice Elena Kagan dissented, arguing that the courts and Congress should not rule on specialized policy decisions and should instead defer to experts, such as the three-letter agencies in question. However, in Donald Trump’s recent appointments to the court, he sought out candidates that shared his skepticism of what he viewed as government overreach. In 2018, Trump appointee Neil Gorsuch questioned the validity of Chevron, while Justices Roberts and Alito, who have affirmed their support of Chevron in the past, have indicated that they are at least open to entertaining the case against it. Amidst scandals over gifts he received from conservative donors, Justice Clarence Thomas was revealed to have attended a donor event hosted by the Koch Brothers: founders of the Cause of Action Institute, which represents Loper Bright in contesting the Chevron ruling.
By crippling federal agencies, the conservative Justices hope to consolidate power into the judiciary, fracturing America’s separation of powers and sowing chaos among its vital organizations.
If the court does follow through and overrule Chevron, the results could be catastrophic for the function of American governance. As a whole, the U.S. functions on a system of delegation, with environmental experts directing environmental policy and economic experts directing economic policy. In many cases, Congress does not have the time or expertise to rule on specific questions, leaving most oversight of three-letter agencies up to the judiciary, which itself does not have adequate oversight. Without Chevron, some experts allege that many of the Alphabet Soup Agencies will not be able to carry out their functions to the same degree. For example, the FDA could face a lawsuit if a drug it found “reasonably safe” caused a health incident, even if a low level of risk was acceptable under current regulations. Therefore, agencies might be fearful to take the necessary steps to preserve the environment, public health, or the economy if those actions open them up to litigation. By crippling federal agencies, conservative justices promise to consolidate power into the judiciary, fracturing America’s separation of powers and declawing its vital organizations. In an age of unchecked judicial power and legislative inefficacy, the last thing America needs is impotent federal agencies.
Toby Zimmerman ‘27 studies in the College of Arts & Sciences.
He can be reached at t.zimmerman@wustl.edu