Daniel Walters
@DanielEWalters_
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Associate Professor @TAMULawSchool (views mine). Study Admin/Enviro/Energy/Food Law. I'm the kind of guy who names his dog after Oliver Wendell Holmes, Jr.
Fort Worth, TX
Joined December 2013
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Pinned Tweet
I'm excited to share some new research I've been working on with
@kevin_tobia
and Brian Slocum on the claims that we're seeing that the Major Questions Doctrine is just a common sense linguistic canon reflecting how an ordinary reader approaches delegating statutes. It's not. 1/6
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The more I think about it, the more troubled I am that the Court did not identify any linguistic formulation by which Congress could clearly indicate intent to delegate authority on major questions. The failure to do it seems designed to frustrate any response to the decision.
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I can't believe how obtuse the statutory analysis in this air travel mask mandate case is. I can think of at least 2 other plausible readings at every turn, and yet I'm told this is the "ordinary" meaning of the statute. Whether false certainty or bad faith, this is ridiculous.
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What am I supposed to say next fall when a student says that what the Supreme Court does is iredeemably tainted by politics? Or that none of what we're learning is a real constraint if you put the right people on the Court and treat them to a taste of a life of excess?
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This Court pays lip service to democracy and legislative authority over policy but makes no effort to instruct Congress about how to comply with the law. It's lawless and unprofessional.
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PSA to all agencies: the probability that your regs will be reviewed by the Court and struck down under the major questions doctrine just went from .0001 to .001. Go ahead with your business and make the Court waste its time telling us on a case-by-case basis what is a MQ.
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I'll just say this about the student loan forgiveness stuff going on right now: having an agency respond in real time to lawsuits by making adjustments to a program makes a lot more sense to me than drawing a line in the sand and litigating whether you could do that for 3 years.
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Wait, a student waved a gun on zoom in a law school class and we're actually debating whether it was acceptable behavior and/or whether law professors in general have the right to call it out? I feel less safe just reading this...
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You might say it's not the Court's role to provide legislative language, but the fact that it is so obviously needed here to fulfill the purported democracy-reinforcing role the Court assigns the MQD is a dead giveaway that what the Court did here was legislative in nature.
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I'm told it isn't official until you announce it on Twitter, so here goes. Starting this summer I'll be moving to
@TAMULawSchool
. I'm extremely excited to join this dynamic law school and simultaneously very sad to be leaving
@PennStateLaw
. A short 🧵:
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Where are all the people at who said the Fifth Circuit could be counted on to reel in the wacky district court judges?
BREAKING: The Fifth Circuit stays Kacsmaryk's order ONLY as to the 2000 approval of mifepristone, not as to the 2016 REMS changes or subsequent changes, including the 2023 ending of the in-person dispensing requirement.
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Whatever you think about what happened at Stanford, there's no excuse for a federal judge reacting by punching down at people just doing their (hard) job. The power asymmetry is obvious, and it's unbecoming of a judge to exploit it, no matter how bad he feels he was treated.
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Chevron is overturned, but what does that mean, exactly? These passages are pretty important: seems more like we have an endorsement of Skidmore than de novo review, and the Court emphasizes that express delegations still require agency flexibility and discretion.
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Think about Florida East Coast Railway: the Court made it crystal clear what Congress had to do to invoke formal rulemaking. That's a Court that cares about Congress's ability to legislate its preferences.
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The major questions doctrine is like a cheat code for anti-government forces. I can't think of a single regulatory program that would survive the court's standard of review here.
Trump Judge Mark Pittman finds Biden’s student loan relief program unlawful and issues a nationwide injunction blocking debt relief for every single borrower.
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'Tis the season: I'm pleased to announce that one of my new articles, "The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State" will appear in the
@YaleLJournal
later this year. You can download the working draft on
@SSRN
at .
1/8
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This right here is a perfect encapsulation of the Court's galaxy brain hubris. The policy considerations that colleges/agencies/etc. are working with are beyond the capacity of courts to meaningfully review, therefore they cannot be considered at all.
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I just read an administrative law exam that could be published. And that's what being a professor is all about.
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She's right. Notice how it's never SCOTUS that violates the constitution. How probable do you think it is that SCOTUS doesn't push constitutional limits, just like any other branch? And if anything does test the limits, it's the major questions doctrine.
Notable that Kagan's dissent in the student debt case did not merely accuse the majority of misreading the Constitution. She wrote that the majority "violates the Constitution."
Justices often accuse other branches of violating the Constitution. Here, Kagan said, WE violated it.
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@asv141
I love the negative implication that the word "in" is perfectly clear to him. "Do," not so much, but the man understands "in."
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But on top of that, this isn't even the right question. The relevant statute doesn't give power to CDC just to regulate sanitation measures. It gives CDC the power to enact "other measures, as in his judgment may be necessary." Opinion glosses right over that.
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What a thrill it is to see my "Administrative Agon" piece now up on the
@YaleLJournal
website! It started as a seminar paper years ago in grad school and sat around for years after that before I decided to come back to it. Put your ideas out there!
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Thrilled to announce to the Twitterverse that I'm headed to
@PennStateLaw
as a law professor! Excited beyond words about joining this terrific university. Can I start yet?
#WeAre
excited to announce
@PennLaw
Regulatory Fellow
@DanielEWalters_
will be joining
@PennStateLaw
in University Park as Asst Prof. His
#interdisciplinary
expertise in
#administrative
#environment
#energy
#food
law will help serve our students & build collaborations.
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FWIW, this summer I created my own free, open-access casebook for administrative law. A brief thread:
1/8
Hey law professors, are you looking for an open-access casebook for the upcoming year? Here's a list of them, provided by James Grimmelmann.
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One of the things I find so fascinating about this area of the law right now is the way some of the justices are thinking strategically about how to realize unpopular, idiosyncratic policy goals they have without actually saying they're doing so. This is a highly political Court.
For SCOTUS Conservatives, Chevron is a way station. The real target is delegation & all regulation. As I explain here, a line of questions in yesterday's argument unwittingly revealed the true goal: "Justice Kavanaugh Aims for Chevron But Hits Delegation"
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I went into my meeting with the assistant dean asking to teach administrative law in the spring; I left scheduled to teach a seminar on special topics in administrative law in which I get to dive into cutting edge scholarship in the field. Life is good at
@TAMULawSchool
.
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I think we're okay: Kavanaugh italicized "not," which means his word is extra trustworthy.
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Listening to the argument from yesterday and just marveling at 1) how quickly the major questions doctrine got normalized, and 2) how confused the justices all are about what it means.
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Excited to announce that my paper with
@kevin_tobia
and Brian Slocum, "Major Questions, Common Sense?," is now forthcoming in the
@SCalLRev
! We look forward to working with them to bring the article to print. In the meantime, you can download it here:
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I'm not even an a textualist and I feel abused by this opinion's lack of care.
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Now that it has found a wonderful home in the
@UCDavisLRev
, I'm excited to share the working version of my latest article: "Tomorrow's Climate Law, Today." The article can be downloaded
@SSRN
: . A short summary 🧵:
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Good lord. Worst SCOTUS justice ever, and it's not even close.
Justice Alito suggests that, if former presidents are subject to prosecution after leaving office, they'll be more likely to seek to unlawfully remain in office after they were defeated for re-election/their term has ended.
JFC.
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For a judge, Alito sure shows poor personal judgment. What possible good could come of saying you know who the leaker is, pointing vaguely at non-conservatives, and refusing to provide any evidence? Does he think this will change anyone's mind? Or is his intent to inflame?
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Super happy my new article on the major questions doctrine found a good home in the
@IowaLawReview
. Until then, the current version can be found here: . Comments most welcome!
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Super excited to see my
@IowaLawReview
article on the major questions doctrine's inconsistency with the normal parameters of substantive canons in print today!
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Man, Gorsuch is just absolutely butchering core administrative law doctrine right now. Have we considered that his antipathy to Chevron stems from confusion?
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And on top of that, it isn't even clear that the statute limits the CDC to doing anything in the list plus other necessary measures. Read plainly, the statue gives CDC the power to enact these measures to carry out and enforce "regulations" which are necessary to prevent disease.
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If anyone is looking for a little light reading on a Saturday, I've just posted my take 1 of 30 on the major questions doctrine over at
@SSRN
. You can download it at . Still very much a work in progress, so I hope you'll send me your thoughts/reactions!
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It actually gets worse. The court says subsection (a) can't allow for individual regs because only subsections (b)-(d) reference individuals. But this ignores the fact that subsections (b)-(d) explicitly refer to the power to issue regs "under this Section." Not subsection. Doh.
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Happy to report that my latest will appear in the
@michlawreview
. I argue that admin law is becoming asymmetrically formalist (and that this is a bad thing). It'll be in print later this year; in the meantime, download it at SSRN:
Comments welcome!
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Disturbing pattern here. When I selected my undergrad institution, I chose to be debt free and to live near family, and I imagine countless others do the same. I was under the impression that what mattered was what you did while you were in college. I guess not with SCOTUS.
“The Road to a Supreme Court Clerkship Starts at Three Ivy League Colleges” featuring work by George, Gulati, and Yoon
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Martinez: "You're not going to want to be in the business of error correction" each time a lower court misapplies Chevron.
Just wait until the Court is in the business of error correction of every de novo interpretation of statutes in every last corner of the federal judiciary.
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Admin law Twitter, assemble! The popular "Power in the Administrative State Series" is back this Friday at 1pm ET with
@LeahLitman
and
@danieltdeacon
speaking on the "New Major Questions Doctrine." Paper is here:
DM me if you want to attend!
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It's always a great day when your work finally goes to print. Today, it's my article "The Submerged Administrative State," co-authored with Gabe Scheffler of
@MiamiLawSchool
and published in the
@WisLRev
. Especially as an alum, this one means a lot!
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New to SSRN and forthcoming in the
@EmoryLawJournal
: my empirical study of the judicial administrability of the nondelegation doctrine in the states. Download it here:
Thread:
1/8
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This decision is insane and tantamount to saying agencies are not allowed to be decent unless a status specifically authorizes that.
The 5th Circuit declares itself “disturbed” that Secretary Mayorkas considered equity and the impact of immigration enforcement on people of color, and says it was unacceptable for Mayorkas to instruct ICE agents to consider the totality of a person’s circumstances before arrest.
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Honestly, this passage gives me hope. The opinion has all the hallmarks of handing out candy to the conservative legal movement in the form of Hamburgian rhetoric while feeding real lawyers and judges something nutritious.
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It is remarkable to read Gorsuch's dissent in AZ v. Navajo Nation in light of his writings in admin law. No stingy textualism. Not a whiff of anything like the major questions doctrine in treaty interpretation. He makes plenty of good points here, but it's not consistent.
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My favorite thing to do in class is to say "and this is black letter law" and then watch as the class frantically prepares to take very close notes. Never fails.
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Getting selected for a jury was not on my law professor bingo card, but I will now be reading every article there is on juries.
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Crazy thought: we really need "judge school" in addition to law school. In law school, we train advocates, and that skillset appears to translate poorly to the skillset of good jurists.
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Every day that passes without WV v. EPA makes me very, very nervous.
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The opinion spends pages agonizing over whether the mask mandate is a santitation method in the sense that it "cleanses" or "keeps clean"--the two possibilities identified in a dictionary. If you have any objective reason why one of these is better than the other, shoot.
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One of my legislation and regulation students said in an evaluation that it was obvious I had a textualist bias. Who says it's not possible to teach from a different perspective than one's own?
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Excited to see my article with
@ellliottt
on the nondelegation doctrine and legislative drafting incentives go live today in the
@CornellLRev
! The insights from our empirical study are, I think, highly relevant to the new MQD. Check it out at !
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My 2010s were a blur. No use in trying to summarize. All I know is that today, the last day of the decade, I got married. Here's to the future!
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I wasn't prepared for that one really vicious student evaluation that we all get. It'll stick in your head like a catchy song.
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New Paper 🚨: I've just posted
@ssrn
an empirical paper testing the theory, floated during oral argument in Loper Bright, that Chevron deference causes legislative stagnation (presumably a bad thing). 1/9
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In light of the oral argument tomorrow in WV v. EPA, I want to share that my new article--"If We Build It, Will They Legislate?" (with
@ellliottt
)--is forthcoming in the
@CornellLRev
and now available for download at .
1/8
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A prediction: we continue to have the same fights, just under the banner of whether something qualifies as an explicit/implicit delegation of authority. Plenty of room for lower courts to limit the impact of overturning Chevron by liberally construing the bounds of explicitness.
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That feeling when you see you're cited in a cert petition in a case about the constitutionality of OSHA but then read the petition and see your research is completely misrepresented through cherry-picked statements that tell precisely 1.5% of the story:
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When I was a fellow
@pennlaw
, Sophia always went out of her way for me even though I didn't work with her. It showed me how deeply she cared about the entire community. An inspired and wise choice for Dean.
Sophia Z. Lee, an experienced and admired leader whose scholarly work is rooted in cross-disciplinary collaboration, will become the dean of the University of Pennsylvania Carey Law School, Penn President Liz Magill announced today.
Read more:
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Just a remarkable example of government quietly working exceptionally well. I hope IRS had the foresight to study the policy feedback effects here.
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I always knew I would get in a bad car accident while in Texas. It was absolutely inevitable. Thank God I'm okay; my car, not so much.
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This. If you're talking about separation of powers and Chevron and you're focusing only on executive power, you're missing a pretty key branch--the first branch, in fact--and gutting its power to empower agents of its choosing to do its work.
Today’s
@nytimes
article on Loper-Bright is very frustrating. It uncritically parrots the arguments of Chevron critics and accepts an ideological framing.
It just is not the case that Chevron critics care about separation of powers but not it’s defenders. (1/2)
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When this is the view out of your conference hotel room, you're at a good conference. It follows that the National Conference of Constitutional Law Scholars in Tucson, AZ is a good conference.
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Maybe it's just me, but I'm getting a little tired of the "conservative legal movement is doing X and it's a conspiracy" take. They're just organized and rhetorically savvy. Progressives need to get there too.
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LMAO at this take. Now subject to the major questions doctrine: the Constitution itself.
Last I checked, Congress had not yet amended the Controlled Substances Act to remove or reclassify marijuana. Biden's blanket pardon violates the clear spirit of that statute.
This is a rough analogue to Obama's DACA/DAPA amnesties, but for potheads (not illegal aliens).
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Today the Supreme Court is likely going to try to turn off the government in order to turn it back on. If that sounds crazy, that's because it is.
A short thread... 1/
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Well, just finished teaching admin law for the first time, and it was as fun as I could have ever imagined. Thanks to my students for hanging in there under difficult circumstances and remaining patient with me as we rode out some rough parts. Back in the fall for round two!
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Congress has no other option but to amend 28 U.S.C. § 2401(a) in the wake of Corner Post. The Court has invited utter chaos with this in combination with the other recent cases. It will almost always be possible to get an injunction in some court against any rule you don't like.
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"Two law professors (one conservative and one liberal) have withdrawn their essays from the ELJ in protest over its treatment of Larry."
As someone publishing in the
@EmoryLawJournal
soon, I will proudly NOT be joining the protest.
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Overall, this is not the disaster it could have been because the Court didn't tell us anything meaningful or constraining about how the MQD works. This is a ticket good for only a delimited set of rides.
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My latest, with
@tphillips
, on why it's so important for agencies to continue producing regulations even in the face of a hostile Court.
On fighting a fact-intensive major questions doctrine with volume: "Agencies will lose every battle over statutory meaning that they don’t choose to fight, but they’ll win at least some proportion of the time when they do act."
@tphillips
@DanielEWalters_
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I really think Seila Law v. CFPB is the worst Supreme Court decision in the administrative law canon. Pretty much every single sentence is wrong, questionable, or misleading. Should be a blast to teach.
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A quick 🧵with preliminary thoughts on how I might restructure the legal interpretation section of my administrative law course (H/T to
@chris_j_walker
who encouraged me to share what I posted on the admin law listserv):
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I'll never forget the day when administrative law went mainstream.
IT’S OUT!
@StrictScrutiny_
joins
@TheProblem
with Jon Stewart to discuss the Fifth Circuit’s latest salvo in the war against the administrative state.
@ProfMMurray
@kateashaw1
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My colleagues
@PennStateLaw
are making me have all the feels about my impending move to Texas. I'll miss you too!
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They're just taking the CFPB funding case to correct the 5th Circuit, right? Right???
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The big news here is Barrett going with MQD as a linguistic canon. A few thoughts:
1/x
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Thank you, Justice Kagan, for this made-for-the-classroom moment:
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In DC for the
@GeorgetownLaw
Legislation Roundtable and delighted to finally see some cherry blossoms--I've never actually been here for it, and it's pretty glorious.
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The headlines should read that the Court just resurrected the non-delegation doctrine, because that’s functionally what just happened. A shockingly flippant rejection of the idea that an agency could ever exercise discretion to address a pandemic.
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How is it that, as a law professor, I have to disclose and pay taxes on any gift over something like $100, but this is perfectly legal for a Supreme Court Justice?
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I'm pretty unsure about whether it's smart to ditch Biden this late in the game, but I will say that it's probably very advantageous to be able to go to the American people, most of whom are disappointed in the current slate, and say "We're the party that listened to you."
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Somebody needs to say it: Justice Kagan is just better at textualism than Chief Justice Roberts. Get used to chippy opinions in major questions cases, because that's Roberts's last line of defense.
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What I've learned from being spammed by anti-"woke" trolls: they, as a group, seem to lack ability to stay on topic or refrain from ad hominem. This is the critical discourse they say they want more of in universities.
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In case anybody is looking for some light reading over the break, Gabe Scheffler (
@MiamiLawSchool
) and I have just posted a draft (forthcoming in the
@WisLRev
) exploring why government is experiencing a reputational crisis. Download it here:
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@DruStevenson
I've been real about politics mattering at the margins (I've read all the poli sci and CLS stuff), but I'll confess that I've still told students that legal practice is distinct from political mobilization. It's going to be hard going forward to be sure.
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So happy to see "Unrules" (with Cary Coglianese and Gabe Scheffler) go to print in the
@StanLRev
. We hope to start a conversation about the ways admin law fails to address agencies' heavy use of waivers, exemptions, and exceptions to lift obligations.
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If you don’t think we’re careening toward idiocracy, check out what
@realDonaldTrump
just posted. There’s no dignity left in this office.
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Super excited to share my thoughts on the future of Chevron deference at this symposium in October alongside a truly stellar lineup of colleagues. Link to register is here:
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Put it this way: the Court hear ~65 cases this term. The federal government will issue several thousand rules. The Court cannot win this fight with the tactics it is deploying. The lower courts are far more ideologically diverse and will decide most litigated cases.
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This story is made for teaching in administrative law.
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This is how I spent my evening. What a blast getting to celebrate the launch of this article and discuss it with the crazy smart students at Yale Law School.
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@DruStevenson
Yeah, but then you have to wonder how many of the unanimous cases are ones where well-heeled interests have paid for the all of the justices' kids' schooling.
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Thrilled to have my climate law article, "Tomorrow's Climate Law, Today," featured alongside so many other great LPE works. It's an exciting time for legal scholarship, and we're lucky to have
@LPE_Project
doing so much of the glue work to get people thinking together.
Today, our spring scouting report on some of the hottest LPE and LPE-adjacent articles. Congrats to all the authors on such wonderful placements 🎉
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Just read today's anti-deference screed from Gorsuch. Not even a hint of recognition that few of these alleged problems go away when you eliminate deference; they just make unelected and decidedly inexpert judges our guardian class. That's on purpose, and it's sophistry.
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