Dan Walters

Come for the CLE, stay for the admin law enlightenment.

Well, that's pretty difficult to square with Seven County Infrastructure (the case you referenced)--it said Loper Bright still applies to NEPA, it's just that NEPA is pretty much entirely law application and therefore the standard will almost always be deference DESPITE Loper Bright.

So you do not take the Loper Bright opinion at its word when it says that every statute has a single, best meaning that must be independently determined by judges? It depends on whether a) there is precedent of deference in a particular statute, or b) the Court recently tells us otherwise?

Really interesting from @donmoyn.bsky.social: the ball is up in the air in the court of public opinion when it comes to the value of independence in administration. Lots of tactical implications of this for our politics.

open.substack.com/pub/donmoyni...

This is very encouraging.

Remarkable that just a year out from Loper Bright you have judges who were previously Chevron critics beginning opinions this way.

media.cadc.uscourts.gov/opinions/doc...

Passive voice... Let he who is without sin cast the first stone.

What's concerning is the idea that a symposium--usually reserved for serious contributions--is being used for a bad law review article. I don't think practioner perspectives should be excluded, but neither should this forum be an opp for people like Schmitt to post screeds and call it a symposium.

Good grief.

Oh good, I'm glad they'll have some legitimate takes as part of this. I truly worried this was just going to be the administrative law scholarship equivalent of astroturfing.

I know some will say this is just the reality of the world. Nothing matters anymore. Law is for suckers, etc. But this is nuts--it's DOGE getting an academic whitewash.

Third, I'll delighted if I'm proven wrong, but based on the general vibe of this symposium so far, I'll be shocked if there's any acknowledgment at all of the implications of Loper Bright for requiring additional regulation where that's the best reading of statutes.

papers.ssrn.com/sol3/papers....

Second, the posts so far are advancing arguments that don't pass the laugh test. Apparently, State Farm has never actually required that regulatory rescissions undergo arbitrary and capricious review. That was just a figment of our imaginations!

www.yalejreg.com/nc/state-far...

First, the inspiration for this symposium appears to be a single Senator's passion project dressed up as a majestic sounding "Post-Chevron Working Group Report." Not a book or an influential article or a case, but a glorified op-ed.

journals.law.harvard.edu/jlpp/wp-cont...

I've just been alerted to a "symposium" that is going on over at the Yale J on Reg Notice & Comment blog that seems designed to lend an air of legitimacy to some very extreme ideas about how admin law doesn't apply to deregulation. Surprised they're running this.

www.yalejreg.com/nc/foreword-...

He actually says State Farm didn't even hold that rescissions are subject to arbitrariness review, which is insane. No fair reading of that section would say the holding was entirely cabined to 15 USC § 1392(b).

WTF.

Very true. And there's also a lot of people who are learning about specific agencies for the first time as they increasingly make news. But I think it's worrisome that people might be following the implications of UET and melding the president with agencies in a way that undermines their base rate.

A huge part of the problem is that we only hear from the partisan political appointees. There are many reasons why, but the vast majority of people have no idea what agency staff do and why their work is important. Michael Lewis has done a stellar job of highlighting this work, but it's rare.

Which agencies do Americans think are doing a good job? Recent surveys have shown that how Republicans and Democrats view federal agencies has switched since Donald Trump became president again.

We've long seen this kind of contingent partisan evaluation of other institutions, but as far as I know this is some of the first real evidence of it when it comes to administrative agencies. It makes sense: people could perhaps be forgiven for thinking that agencies just are the President.

I'll add that what Nelson is saying here is completely unoriginal. SCOTUS has barreled ahead with the unitary executive theory DESPITE a surfeit of evidence rebutting it, and all Nelson does here is (finally) acknowledge that fact.

Opinion | The Constitution Doesn’t Belong to Trump or the Supreme Court

Somehow I missed this piece from Kate Andrias the other day, but she absolutely nails it. "Our Constitution is not dying. It is waiting — waiting for us to claim it."

🔥

Hmm, all that money and programming but the poor little libertarian think tanks have been sidelined. Not buying that. More likely they aren't going to say much because they care much more about tax breaks than civil rights.

There are plenty who aren't in government (i.e., big donors) who are part of what I'm talking about who are at least not vocally breaking from what the party is doing now.

I'm old enough to remember when the talk of the town was how the libertarian wing of the GOP had seen the light and was working to deconstruct the politics of the "war on crime." Don't hear much about that anymore.

Maybe I'm missing something about Danielle Allen's pitch to lean into the higher ed compact shakedown, but couldn't higher ed collaborate without the Trump admin? And so what would be the benefit of engaging Trump on his terms? Optics with Trump supporters? Are they ever going to support higher ed?

Judicial Review in Jeopardy? Symposium - Harvard Law Review The Harvard Law Review is proud to host, in collaboration with the Center on the Structural Constitution at Texas A&M University School of Law,...

Our Center on the Structural Constitution, led by @crockeroncourts.bsky.social and Neil Siegel, has organized an amazing symposium with the Harvard Law Review on the politics and law of judicial review. And the best news is that you can attend online!

harvardlawreview.org/judicial-rev...

What I hear is a person who has no competence in anything other than performative grievance trying to distract us from that fact.

It doesn't make much sense to draw hard distinctions between agencies and the president in this era of presidential administration. They are for all intents and purposes his agencies.