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).

Eggstraterrritorial Federalism

chicken and egg

The Wall Street Journal, among other news outlets, reports that egg prices in California have risen sharply and are way out of line with prices elsewhere in the West. In 2008, California voters passed an initiative requiring chickens to have much, much bigger cages. California egg farmers protested about the attendant disadvantages. In 2010, the California legislature enacted a law requiring the layers of imported eggs—some four billion per year—to have equally spacious accommodations. The hens have since taken out home improvement loans and installed wall-to-wall carpets. For poorly understood reasons, however, there are fewer of them, and therefore fewer eggs, and therefore…

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DOJ’s Reply Brief in King: They’re under Water and They Know It

I haven’t had much time to parse the government’s reply brief in King v. Burwell. A few quick reactions:

They Know They Lose. Start of the brief (“Statement”):

The Affordable Care Act was enacted to provide “Quality, Affordable Health Care for All Americans.” Tit. I, 124 Stat. 130 (emphasis added).

An all emphasis, without more (and Congress ensured that comprehensive reach …) signals that the rest is junk. (You’re trying to make a single word trump the entire instrument.)

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Reforming the Administrative State Is a Game of Inches

The oral argument transcript in Armstrong v. Exceptional Child Center—subject of my preceding post —is here. Edwin S. Kneedler’s argument for the feds starts on page 16. ‘Tis a thing of beauty: it articulates the correct theory (mine J) almost verbatim, without any hedging or equivocation. This is remarkable for several reasons:

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Chamber of Commerce Defends Rentseekers United

Chamber of commerce

Today (Tuesday, January 20) the Supreme Court is hearing arguments in Armstrong v. Exceptional Child Center. It’s a hugely important case that will shape the contours of federal spending statutes (here, Medicaid) and of federalism.  While the dispute is between a state (Idaho) and Medicaid providers, there is more to learn from two amici: the administration, which gets the case admirably right; and the Chamber of Commerce, which gets it horridly wrong.

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We’re the Government. Trust Us.


Earlier this week the Supreme Court heard oral argument in Mach Mining LLC v. Equal Employment Opportunity Commission (transcript and briefs).  It’s a fairly big deal for employers, and another small window in the administration’s quaint views of administrative law.

The case concerns the EEOC’s enforcement practices. After the agency files a notice against an employer, conducts its investigation, and finds “reasonable cause” to proceed, it “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. 20002-5(b). What happens if they don’t do that prior to filing suit, or do a snow job on the employer? Nothing, says EEOC. The provision is unreviewable.

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Remembering Walter Berns

This past Saturday, Walter Berns died at the age of 95. Walter Berns was one of the truly great constitutional scholars and political theorists of his generation, or any generation since. A student of Leo Strauss’s, he taught at Louisiana State University, Yale University, and (beginning in 1959) in Cornell University’s Department of Government, which he chaired for several years.  He resigned his position in 1969, when a feckless university administration caved in to armed thugs who had occupied university buildings. Cornell exposed faculty members who urged a defense of liberal education and resistance to mob rule—Walter Berns and Allan Bloom…

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It’s My Party. Cry If You Want To.

elections 2016 conceptual post

Professor Cass R. Sunstein has unearthed a new –ism: partyism, meaning an animus or aversive reaction to someone based solely on party membership. As in: “I don’t care if people think I’m a racist or a child molester. But I’d die if they thought I’m a Democrat.” (I think Ann Coulter said that long ago. If she didn’t, she certainly could have.) Partyism, Professor Sunstein writes, is on the rise, and it contributes to political gridlock. 

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The Administrative State: Latest News and Musings

The Federalist Society just held, and concluded, its 17th Annual Faculty Conference, running alongside (as always) the meeting of the American Association of Law Schools. Said events include a riveting debate between Jonathan Adler and Nick Bagley on (what else?) King v. Halbig. They further include two splendid back-to-back panels: one on “The Executive Power to Not Enforce the Law” (featuring John Harrison, Gillian Metzger, Zachary Price, and Nick Rosenkranz; moderated by Tara Grove); the other on “The Administrative State: Within the Bounds of Law?” (featuring  Philip Hamburger, Kristin Hickman, Richard Pierce, and yours truly; moderated, with Teutonic punctuality, by our very own John…

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State Attorneys General Make It Rain

Since my last post on state attorneys general George Will has chimed in on Oklahoma Attorney General Scott Pruitt and his leadership role in reviving federalism. And The New York Times has published an extended piece on the joined-at-the-hip connections between Democratic state AGs and the trial bar. Plaintiffs’ lawyers peddle cases against this, that, and the other industry to state AGs, who then sue and cut the trial lawyers in on the proceeds. A portion of those proceeds in turn ends up in the AGs’ campaign coffers. Amazing stuff.

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Shocked, Shocked that Federalism is Occurring Here


The New York Times has been running a multi-part story—with countless additional internal links—on the connections between (Republican) state attorneys general and industry groups and their lawyers and lobbyists. There’s lots of wining and dining in fancy places to gain and maintain corporate access to state AG’s when it’s needed—more often than not, to deal with this or that multi-state investigation and prosecution. Also, the energy industry in particular has made common cause with state AG’s in fighting the Obama administration’s climate change agenda. The article series is quite good in a Times-ish way—informative to the point of exhaustion, self-congratulatory (“We intrepid reporters unearthed this information on the internet! And through open records requests!”), and slightly paranoid.

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