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).

Give Me Guidance

Breaking in to opportunity as a business man climbing a broken brick wall in the shape of a glowing light keyhole with a red ladder as a concept of success and winning.

This past week, the Food and Drug Administration formally withdrew 47 draft guidances. (I have no idea what they were about. If you’re sufficiently intrepid to pursue this, the Federal Register notice is here.) FDA’s step may or may not have to do with a May 7 letter from Senators Lamar Alexander (R-TN) and James Lankford (R-OK) to several federal departments and agencies (Department of Labor, Department of Education, HHS, EEOC) requesting information on the agencies’ use of guidance documents. The letter expresses concern that the agencies may be using guidance documents in ways that circumvent the notice and comment requirements of the Administrative Procedure Act.

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Our Postmodern Bill of Rights

WE THE PEOPLE written in vintage letterpress type

Last week, John McGinnis had a characteristically insightful post on Our Two Supreme Courts. One is the political court—an aristocratic institution that restrains public passions. On that court, the justices vote their preferences on God, guns, and gays. The other is the legal court, which takes care of boring jurisdictional and CivPro-ey stuff and where the justices, acting as the good lawyers they are, often reach unanimous decisions. The only way to reunite the courts, John writes, is for the justices to bring the legal rigor that’s on display in ERISA or bankruptcy cases to bear on the high-falutin’ ConLaw issues.

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FERC and the Fight in the Weeds

Here’s a quick update on two pending Supreme Court items, both of huge interest to a vast range of commercial actors and actually the country. Non-event: still no decision in Comptroller v. Wynne,  a “dormant” Commerce Clause case over the double taxation of income earned in interstate commerce. Next to Zivotofsky v. Kerry,  the Jerusalem passport case, Wynne is the only case still open from the Court’s November arguments. As I wailed here and here, the Court’s highly unusual cert grant in Wynne—to a state court, in a case involving no lower court splits and on a ruling that affirmed the…

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The Bob Jones Rule

I’m no expert in dignity or liberty. Listening to yesterday’s arguments I frankly got confused over just where and how marriage enters into the Fourteenth Amendment and screams for resolution by the Supremes. Nationalize me, please, appears to be the new form of constitutional argument. And so now, apparently, my first son may very well be permitted to marry my second son or daughter or both, or whatever. But I what I really love are appellate lawyers’ maneuvers, such as this: Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax exempt status…

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Vote Loony, The Time Is Now

Beautiful view of Westminster by night

As the U.S. Supreme Court prepares to give the Let’s-Make-It-Up Clause a full workout, let’s talk about something completely different: the upcoming elections. Not ours, eighteen-plus months hence—the Brits’. The campaign over there has been under way, in a serious fashion, for six weeks or so; it’ll be over in less than another fortnight.

The rather more compressed time frame of elections over there suggests (to anyone except campaign consultants and “democracy” enthusiasts) that Britain’s parliamentary system is superior to our presidential-plus-primary system, at least on this margin. The question whether parliamentary government is generally better has been the staple of a vast body of literature—including, recently, my colleague Francis H. Buckley’s emphatic defense of his native Canada’s parliamentary system.

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Nationalize It

In this Liberty Law Talk with James L. Buckley—Judge, Senator, Saint—he proposed to terminate any and all federal transfer programs. That bold program is conceptually and directionally right. Can it be done, though? Answer, maybe—provided that… The raw numbers are prohibitive, and horrifying. Four states (Mississippi, Louisiana, Tennessee, South Dakota) collect over forty percent of their revenues from the feds. Two-thirds of the states depend on federal transfers for over 30 percent of their budgets. Mind you: these are 2012 data. Federal transfers under the ACA’s Medicaid expansion—a dollar-for-dollar reimbursement for whatever any state chooses to spend—will drive the numbers through the roof.…

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Where Have All the Start-Ups Gone?

closed shop with padlock

Robert Samuelson, in his columns for the Washington Post, has done wonders in explaining stuff to econ idiots like yours truly. Lately, he has called attention to the economy’s lousy productivity growth (we’ve been puttering along at 0.9 annual growth) and the striking decline in U.S. entrepreneurship, as measured (principally) by business formation.Those trends are closely associated, and neither is explained by the great recession. What’s happening?

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Deferred Action for Federal Government Accountability


DAPA—short for the clunky “Deferred Action for Parental Accountability,” or maybe “Parents of Americans” (I’ve seen both titles)—is the Obama administration’s 2014 policy seeking to defer the deportations of roughly 4 million aliens who are the parents of citizen children or permanent residents. About half the states, led by Texas, filed suit to block the program. In February, U.S. District Judge Andrew S. Hanen issued a preliminary (and nation-wide) injunction against the implementation of the program. Yesterday (April 7), Judge Hanen refused to lift the injunction and, on the occasion, expressed his annoyance with the government’s “misconduct.” 

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Indiana Wants Me, or Maybe Not

I just returned from a speaking engagement with the National Association of Attorneys General (Midwestern) in Indianapolis. The city used to be a dump; now it’s thriving. (In these pre-Final Four days, it’s the place to be.) The NAAG event was tremendous: it’s a shame they don’t transcribe or podcast the discussions. The panelists (yours truly included) yell at each other on the blogs but lo, they’re actually is a trans-party, Yale-to-GMU constituency for the rule of law—and they meet in a hotel room and learn from each other. The NAAG’s Dan Schweitzer, who called this thing together, is a…

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