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).

Obamacare Meets Rudy

Yesterday’s extended argument in King v. Burwell brought moments of something bordering on joy and gratitude. The exchanges between Justice Elena Kagan and Mike Carvin, both at their very considerable best, stand out: serious questions, serious answers; obvious mutual respect. No matter whose side (if any) you’re on, that’s the way the system is supposed to operate. Give thanks when it (still) does. And then, there were moments that made your heart sink: JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while—while all of these disastrous consequences ensue. I mean, how often have we come out…

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Trust Us, We’re the IRS


I am a faithful subscriber to the Washington Post: morning after morning, it makes for merriment. Its editorial and op-ed pages, for instance, have been given over for weeks to the regurgitation of ACA defenses cranked up in New Haven or in the PR offices of the country’s health care lobbies (interspersed with an occasional George Will column). Then yesterday, the Post (printed version) conveniently supplied a long piece detailing “Five Myths About King v. Burwell”—written by a pro-ACA advocate in the litigation, who nonetheless earnestly professed to sort “fact from fiction” in the case. That was a good one.

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Federal Preemption: The Numbers

The federal preemption of state law is a subject that only dorks could love. Four of them (Jon Klick, Mike Petrino, J.P. Sevilla, yours truly) have just published an empirical analysis of preemption decisions in the Rehnquist and the Roberts Courts. Preemption is the Supreme Court’s daily diet, with three or four cases each Term. So you can actually do the numbers. What the numbers show is that the once-humdrum preemption issue has become a matter of intense ideological contestation.  Preemption cases are less likely to be (nearly) unanimous than the general run of decided cases; and in contested cases, the…

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Flowers and Headscarves, Oh My!

Abercrombie-Headscarf Firing

Have you heard the one about the Christian florist who declined to sell flowers for a gay wedding? She got sued by the Washington AG and by the ACLU. In a 60-page opinion, a state judge ruled against her. The florist is appealing. Also, she has since stopped selling flowers for any kind of wedding, lest “discrimination” break out yet again.

Have you heard the one about the young lady who showed up for a job interview with Abercrombie & Fitch wearing a black headscarf? You will: her fate is at issue in Equal Employment Opportunity Commission v. Abercrombie & Fitch, pending before the Supreme Court. Abercrombie’s strict regulations of its floor “models’” attire and appearance include a prohibition against headgear.

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Illinois Looks for a Life Raft

Illinois Flag Closeup

Chapter 9 of the U.S. Bankruptcy Code governs bankruptcy proceedings for municipal governments (but not states). It’s been used mostly to restructure debts of small government entities who find themselves in temporary distress. But Chapter 9 has also been used to solve, in a manner of speaking, solvency problems incurred by real places, like Stockton (CA) and Detroit. And there’s more to come.

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Politics, Yes; Agency Experts, No


In an earlier post I commented on President Obama’s success in bulldozing the Federal Communications Commission (FCC) into regulating the Internet as a public utility. GOP legislators have since vowed to look into the matter; among other things they’ve asked the FCC to turn over all correspondence with the White House, to learn whether there has been any “illegal coordination” between the President’s flacks and the “independent” FCC. This strikes me as a rather pathetic response and an unhelpful distraction.

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Corruption: The Week in Review


This past week brought more news of wholesale public corruption. Jaw-dropping except that it’s becoming routine, and we are becoming inured.

Standard & Poor’s paid a $1.5 billion settlement ($125 to Calpers, with the remainder split between the feds and the states) over its alleged manipulation of ratings of mortgage-backed securities back in 2004-2007. If the allegations are true, $1.5 billion is a pittance to pay for the wreckage wrought in the mortgage meltdown; once again, a company got off cheap because it’s too big to jail.

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Federalism’s New Defenders: Obamacare Supporters


Thirty amicus briefs have been filed in support of the government’s position in King v. Burwell. Tim Jost, a leading academic champion (after the late Jonathan Gruber’s self-inflicted defenestration, the leading champion) of the ACA, summarizes them here. This may be a bit of overkill (the justices generally don’t like to be bullied or harangued), but we’ll see.

Numerous briefs come from hospital associations, doctors’ groups, and of course America’s Health Insurance Plans. By helping the ACA over the hurdle, AHIP signed its corporate members’ death warrant in exchange for the individual mandate, risk corridors, and a few other placebos. AHIP had the railroad cars to the camps neatly lined up; now, some plaintiffs are messing—after NFIB, a second time—with the tracks: how dare they.

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Remembering Martha Derthick

derthick-140Martha Derthick, the grande dame of American federalism and a dear friend and mentor, died earlier this month at the age of 81.

I first met Professor Derthick in the early 1980s, when she directed the governmental studies programs at the Brookings Institution. She had previously taught at Harvard and Boston College (among other institutions) and, after her Brookings engagement, moved on to the University of Virginia, where she taught until her retirement in 1999. She remained a prolific author and an engaged participant in public debate in her post-retirement years. In those years I directed AEI’s Federalism Project. Martha was a frequent, enthusiastic, and well-nigh irreplaceable participant in our events, even as the trek from Charlottesville became increasingly traffic-snarled and time-consuming.

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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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