Kevin King’s commentary was included in an ABA Journal article detailing lawyers’ opinions on what effects, if any, the overturning of the Chevron doctrine will have on the power of federal agencies. Kevin comments on the possibility of increased uncertainty and legal challenges related to Chevron deference.
Kevin suggests that the decision rendered in the Loper Bright case that overturned Chevron deference could impact the judicial nomination and confirmation process, saying “this principle effectively allows presidential administrations to prevent deference to competing views held by the other party, simply by adopting a different interpretation than the other party.” He adds that “on hot-button issues, that dynamic may lead agencies to stake out aggressive statutory interpretations, if for no other reason than to undermine the other party’s ability to adopt a different approach in the future.”
Kevin also provides his insight on what he is advising clients in light of the decision, saying he is urging them to actively participate in agency rulemaking processes by submitting detailed comments on statutory interpretations and to intervene in court cases to support or challenge agency views. “If there is a better interpretation available than the one the agency has adopted, clients have a strong interest in getting the better reading on the table,” he says. “We are also advising clients who support an agency’s approach, to join court proceedings as intervenors, allowing them to supplement the agency’s views on the best interpretation of the statute.”
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