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Kevin King

Kevin King advises clients on appellate litigation, administrative law, and constitutional law matters. He combines deep expertise on federal courts and federal agencies to help clients develop comprehensive solutions to their most challenging problems.

Kevin regularly handles high-stakes appellate litigation matters in courts nationwide. He represents a broad range of clients—including Fortune 100 companies, trade associations, and small businesses—on issues including communications, intellectual property rights, business regulation, casino gaming, life sciences, and competition. In this work, Kevin draws on his experience as a law clerk at the Supreme Court of the United States and at two federal courts of appeals to craft arguments that anticipate judges’ questions and maximize clients’ odds of success.

Litigating cases involving federal agency orders and regulations is a core part of Kevin’s practice. He is a co-chair of Covington’s Government Litigation Group and co-author of the administrative-law chapter in a major commercial litigation treatise. Kevin has successfully litigated challenges against the Federal Communications Commission, the Environmental Protection Agency, the Department of the Interior, the Food and Drug Administration, the Patent and Trademark Office, and other agencies. This work involves counseling clients at all stages of agency proceedings, including drafting rulemaking comments, building an evidentiary record, participating in agency hearings, devising litigation strategies, and litigating agency cases in court.

Kevin is the lead author of an online toolkit addressing the Law of Administration Change—the complex body of administrative-law rules and precedents that will govern the Trump Administration’s ability to adopt policy changes through rulemaking and other executive action. This toolkit identifies strategies businesses and other stakeholders can employ to maximize the opportunities and limit the risks presented by the change in administration on issues such as the Loper Bright doctrine, the Congressional Review Act, and judicial review of Executive Orders.

In addition, Kevin assists clients in evaluating the constitutionality of federal and state legislation, including under the First Amendment, the Commerce Clause, the Takings Clause, and preemption doctrines. He has litigated constitutional challenges in a broad variety of contexts, including product labeling, property rights, and business regulation.

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Today, the Supreme Court issued its decision in FCC v. Consumers’ Research (No. 24-354), upholding the constitutionality of the Universal Service Fund (“USF”).  The Court in a 6-3 majority opinion penned by Justice Kagan explained that the USF does not violate the “public nondelegation doctrine” or the “private nondelegation doctrine” because Congress provided adequate guideposts and guardrails for the Federal Communication Commission (“FCC”) to implement the USF, and because the FCC had not impermissibly subdelegated its implementation authority to a private entity.  Because the Court upheld the USF, it is unlikely that there will be any immediate implications for the telecommunications industry more broadly.  That said, in analyzing the legal issues, the Court clarified several limits on the FCC’s USF authority, which could constrain the scope of the USF program in the future, and likewise could serve as the basis for future legal challenges should the FCC transgress those limits.

Consumers’ Research Decision

This case involved the FCC’s authority to subsidize programs designed to further “universal service.”  Those subsidies are paid for by telecommunication carriers, who are each required to contribute an amount equal to a percentage of their projected annual revenues.  A not-for-profit corporation established by the FCC (the “Universal Service Administrative Company” or “USAC”) calculates and recommends this quarterly contribution percentage (or “contribution factor”), which the FCC then reviews and approves.  Consumers’ Research challenged this structure as violating both the nondelegation doctrine—a legal doctrine that generally prevents Congress from delegating legislative authority to federal agencies—and the private-delegation doctrine—which prohibits federal agencies from delegating their sovereign authorities to private individuals or entities.  In earlier proceedings, the Fifth Circuit held that the USF was unconstitutional and relied on a novel theory that the combination of Congress’s delegation to the FCC and the FCC’s sub-delegation to USAC was unconstitutional.  The Supreme Court reversed that ruling in today’s decision.Continue Reading Supreme Court Upholds Constitutionality of the Universal Service Fund