Michael S. Greve Website

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

Courts to Obama: Stay, Just a Little While Longer

Giudice - graffiti

Professors Eric Posner and Adrian Vermeule have famously argued that the Executive is “unbound” and cannot be constrained by law—not by Congress, and most certainly not by the courts. There is some truth to this in emergencies. The Supreme Court’s wartime decisions, for instance, show a fairly consistent pattern: the justices bob and weave and cut the President an awful lot of slack. But they usually try to salvage what they can—and to preserve the option of reasserting their power when the emergency ends.

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Judicial Review: Birth of a Notion

The members of the U.S. Supreme Court have different ideas about what constitutes good judicial policy as well as how best to achieve that policy. From where do these ideas originate? Professor Kevin T. McGuire (PoliSci, UNC Chapel Hill) explains: Evolutionary psychology suggests that an answer may lie in early life experiences in which siblings assume roles that affect an adult's likely acceptance of changes in the established order. According to this view, older siblings take on responsibilities that make them more conservative and rule-bound, while younger ones adopt roles that promote liberalism and greater rebelliousness. Applying this theory to the…

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Clean Power, Dirty Hands

Washington, DC - Environmental Protection Agency

The brawl over the Obama EPA’s “clean power” plan—an ambitious design to de-fossilize the entire economy and to make Planet Earth spin westward for a change—has reached the Supreme Court.

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Other People’s Money

In a very fine investigative article in the Washington Examiner, Sean Higgins reports on “Obama’s Big Bank Slush Fund.” As part of their “settlements” with the feds over alleged misdeeds, big banks routinely agree to make donations to various “fair housing” outfits, to the tune of several hundred millions of dollars.

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Whither Puerto Rico?

San Juan, Puerto Rico

Is there any salient public policy issue that the Supremes are not going to rule on this Term? And: are the Justices entirely sure how to think about highly salient cases where ideological preferences and deeply held jurisprudential convictions cut against and across each other—and where there’s a real premium on sorting things out?

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Unorthodox Law

Sea of bureaucracy

I’m not in the habit of pumping other scholars’ stuff, least of all scholars with whom I often disagree and with whom I compete for ssrn rankings. I’ll cheerfully make an exception for Abbe R. Gluck, Anne Joseph O’Connell, and Rosa Po, on “Unorthodox Lawmaking, Unorthodox Rulemaking.”

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Take It to the Bank

This coming week the Supreme Court will hear argument in Bank Markazi v. Peterson (briefs etc here). Here’s what I’ve previously written about the case:

Bank Markazi v. Peterson … concerns nearly $2 billion in foreign currency reserves held in Europe by the Central Bank of Iran. The plaintiffs hold default judgments against Iran and tried to seize the assets. Under ordinary legal principles (the Foreign Sovereign Immunities Act, as well as various provisions of New York’s Uniform Commercial Code), the assets can’t be attached. The plaintiffs’ lawyers, however, persuaded Congress to enact the Iran Threat Reduction and Syria Human Rights Act of 2012….

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Is the Tax Court Still Constitutional?

Congress is notoriously lousy at terminating the life of government entities. However, in a stroke of sheer genius, it has managed to make one of them homeless: the U.S. Tax Court.

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Silent Night


The Weekly Standard’s Andy Ferguson is consistently one of the funniest and most insightful guys around. His latest piece (“Jingle Hell”), on the annual deluge of atrocious Christmas music, is among his best ever. Mariah Carey in a snowsuit and “All I Want for Christmas is You,” for weeks without end? It’s enough, Andy writes, to “make him shout for the death of the entire Mormon Tabernacle Choir by Columbus Day.” Well said. I’ll add this to Andy’s trenchant observations: the bombardment with lousy music is sufficiently intense to ruin—for a captive audience—not just Advent but also much of the actual…

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Beef with the Administrative State


On February 24, 1943, a grand jury in Boston returned a criminal indictment against Albert Yakus, the President of the Brighton Packing Company, for selling cuts of beef in violation of the Emergency Price Control Act of 1942 and price orders issued by the Office of Price Administration (OPA). Mr. Yakus, and many others like him, never had a chance to contest the legality of the rule under which he was convicted. They just went to jail. And the Supreme Court, in Yakus v. United States (1944), said: no problem. That’s just the administrative state and its judicial partners at work.

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