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Oren Tamir, Scholar in Residence, Academic Year 2022-2023

Oren Tamir is a research fellow at Harvard Law, where he is working with several offices there to democratize and diversify legal knowledge. His research interests are primarily in public law, both U.S. and comparative.

Oren received his SJD and LLM from Harvard Law School and LLB (magna cum laude) from the Hebrew University in Jerusalem. Before his graduate studies, Oren clerked for Justice (now Chief Justice) Esther Hayut of the Israeli Supreme Court and worked for three years as an assistant attorney general in the Office of Legal Counsel and Legislative Affairs in Israel’s Ministry of Justice. Oren’s previous work has been published in, among other venues, the Maryland Law Review and the Chicago Journal of International Law, and he is also in the process of completing a U.S. constitutional law case book, co-authored with Professor Lawrence Lessig, which will be out with MIT Press and is intended to also be the first of its kind to be available in electronic form.

While at NYU, Oren will work on several projects. He will be finalizing his book manuscript that offers a new theory of constitutional review. He will also be completing a project that attempts to re-imagine the field of administrative law and to suggest how we should build administrative states around the world in a way that would put them on a stronger footing (among other things as a response to various attempts around the world to bring forth their “deconstruction” and to attack knowledge and expertise). Finally, Oren will work on a project that criticizes the literature on “abusive constitutionalism” or “democratic decline”—suggesting that it has complicated “dark sides” that are counterproductive to its aim of better safeguarding democracies.

Abstract: Among the Roberts Court recent innovations on its path to reinvent administrative law, the Major Questions Doctrine (MQD) is probably the most dramatic development thus far. Consolidated as a distinct and highly potent tool just last term, in West Virginia v. EPA, it has become the center of attention among scholars of administrative law. Conservatives and libertarians mostly celebrate the MQD as a valuable correction for a field that in their eyes has gone awry. By contrast, progressives and liberals emphatically reject the MQD as another manifestation of the Court’s recent juristocracy.

This Article argues that the current critique of the MQD by progressives, misfires. While progressives are certainly right that there’s something seriously wrong with the MQD, they have largely failed to identify what that something exactly is. The MQD isn’t, as they say, lawless. It isn’t senseless as well. It is entirely lawful. And it has a core with much sense. This can be revealed by looking inwardly, that is—by peering into the criticisms progressive leveled against the MQD and exposing how they falter. But, and importantly, this failure can be revealed by looking outwardly as well, that is—by turning our gaze across the sea to realize that many other jurisdictions have their own entirely benign versions of the MQD.

Based on these inward and outward perspectives, this Article suggests a way forward. More specifically, I highlight several changes that, if implemented, would almost completely solve what’s really wrong with the MQD, namely—its extreme rigidity, the risk that it would be excessively invoked, and the doctrine’s asymmetrical deregulatory effects. To be sure, the changes I propose are ambitious ones. But I argue that progressives should still adopt them as their own rather than stick to their guns. Strategically, because in this way even the present Court might be receptive to the need for change. And substantively, because recognizing what’s really wrong with the MQD suggests not only how progressives should fix it in the future, but also how they might fix the entire field of administrative law.