Kevin King’s commentary was included in a Law360 article covering the government’s reversing course on investigations in the transition from the Biden administration to the Trump presidency.
Kevin comments on the Supreme Court’s denial of the Trump administration's request to pause three cases involving the U.S. Environmental Protection Agency's (EPA) regulatory decisions. He notes that factors may include whether the other parties opposed the government's request. "The court also considers: How much of an investment has it already made in the case? Is the case fully briefed? Has it been calendared for argument? Are there other parties in the case, like intervenors or additional respondents or petitioners, that could carry on the government side of the case if the new administration decides that it's going to switch its position," Kevin said.
The court's decision to not pause these cases does not mean the government won't change course, Kevin said, but the administration may not completely flip sides. "The government might not go from saying that one side should win to the other, but it might nevertheless make important changes in the government's reasoning or its views on the outcome for part of the cases," he said.
Kevin also provides his insight on the possibility that the Trump administration may or may not change the Biden administration’s stance that the Fifth Circuit was wrong to sink a Bureau of Alcohol, Tobacco, Firearms and Explosives rule regulating so-called ghost guns as firearms under the Gun Control Act. If the Trump administration does switch gears, in this or other cases involving agency decisions, Kevin said that shift could have a limited effect on the justices' decisions thanks to their Loper Bright ruling last year that did away with the longstanding Chevron deference, which required judges to defer to federal agencies' interpretations of ambiguous statutes. It is the courts that now interpret statutes rather than government agencies, so the government's stance on a statute will have less sway, Kevin said. "We're now in a regime where Chevron deference is no longer in play. And so the government changing position in the past made much more of a difference," Kevin said.
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