Getting Right What’s Wrong with the Major Questions Doctrine

Oren Tamir*

Among the Roberts Court’s 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 two terms ago 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 emphatically reject the MQD as another manifestation of the Court’s recent juristocracy and “anti-administrativism.”

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 often say, lawless. It isn’t senseless, either. 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 progressives leveled against the MQD and exposing how many of them seriously falter. But, and importantly, this failure can also 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 (orseem to be in the process of developing them). Based on these inward and outward perspectives, this Article suggests a way forward. More specifically, I highlight several changes that, if implemented, have the potential to completely solve what’s really wrong with the MQD—namely, its extreme rigidity, the risk that it will be excessively invoked, and its asymmetrical deregulatory effects. To be sure, the changes I propose are ambitious ones. They’re not just minor tweaks with present-day administrative law. 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.

* Associate Professor of Law, University of Arizona James E. Rogers College of Law. S.J.D and LL.M., Harvard Law School. For conversations about this project and comments on earlier drafts, I thank Beau Baumann, Anya Bernstein, Eirik Bjorge, Natasha Brunstein, Gráinne de Búrca, Yoav Dotan, Blake Emerson, Neli Frost, Dan Galpern, Don Goodson, Jose-Ignacio Hernandez G., Kristin Hickman, Sam Issacharoff, Vicki Jackson, Tomer Kenneth, Jeremy Kessler, Larry Lessig, Kari Raganrsson, Shalev Roisman, Ewan Smith, Rafi Stern, Mark Tushnet, , Dan Walters, and Ilan Wurman. Thanks are also due to participants at a workshop hosted by the Center of Human Rights and Global Justice (CHRGJ) at NYU School of Law and to the students in Professor Vicki Jackson’s Harvard Law School 2023 class on Constitutional Dimensions of the Administrative State: Comparative Perspectives. Finally, I thank Mark Buse and Julian O’Donell, both Harvard Law School LL.M. class of 2023, for indispensable research assistance on some of the comparative law aspects in the Article, and the editorial board of the Columbia Journal of Transnational Law, including Iben Vagle, Zachary Lemonides, Allyson Ping, and especially Garrett Callen, whose expert work and keen insight have helped improve the piece. All errors are entirely and completely my own.