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).

What Power of the Purse?

A few years ago Eugene Steuerle (Brookings) and his colleague Tim Roeper developed a “fiscal democracy index.” It measures the extent to which revenues are already claimed by permanent programs—the big entitlement programs, and interest payments on the debt. The remaining “discretionary” portion has to pay for the entire government’s operations, from defense to roads to education to the DoJ. The trajectory over the past half-century looks like this: Note how in this as in many other respects, the Clinton years look pretty darn good. And note how the index turned negative in 2009. The picture going forward doesn’t look much…

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The Not-So-Independent Judiciary

Lady Justice with Scale and Sword

The Constitution permits Congress to do amazing stuff to the independent judiciary. It can withhold jurisdiction, or yank jurisdiction that’s been given. It can change the law for pending cases. It can legislate for a “legitimate class of one.” But suppose Smith sues Jones in federal court and Congress enacts a law saying, “In Smith v. Jones [docket number], Smith wins.” Constitutional? An ancient, messy case, U.S. v. Klein (1872), seems to say “no.” After Wednesday’s decision in Bank Markazi v. Peterson,  the answer may be “yes.” I’ve written about the case before: The outcome is more depressing than I had apprehended.

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Reactivists We Have Known and Loved (Just One, Actually)

Kudos to Stephen Smith, and kudos to the man behind the curtain (Richard Reinsch) for inviting his essay. What a breath of fresh air. In the current environment, constitutionalism seems unlikely to regain real-world traction any time soon. Surely, though, that must remain the long-term objective. To that end originalism must liberate itself from its self-inflicted debilities. Smith’s essay is a great start. I’m not sure I would characterize the jurisprudence he envisions as “activist”—re- or otherwise. I’m not even sure it needs to be strategic (although it can be). But Professor Smith has hit a very important doctrinal nail…

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More Responses

Constitutional Theory As Game Theory

Stephen F. Smith begins his Liberty Forum essay by quoting from Justice Antonin Scalia’s “Originalism: The Lesser Evil” speech from 1988. There Scalia announces that the Constitution, though it has an effect superior to other laws, is in its nature a sort of ‘law’ that is the business of the courts—an enactment that has a fixed…

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Promoting Originalism: Through Strategy or Principle?

Stephen Smith’s Liberty Forum essay concerns an important question for originalism: How can originalists provide nonoriginalists with an incentive to follow the Constitution’s original meaning? Smith identifies what he regards as a serious problem with originalism: “In a world in which many judges reject original intention as a binding constraint, originalism cannot achieve its goal of…

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Immigration Law, Metaphysics, and the APA

Wooden Gavel with book over white

Yesterday, the Supreme Court heard extended oral argument in the litigation over the administration’s Deferred Action for Parental Accountability “DAPA”  program, which would grant “deferred action” and along, with it, work authorization and other government benefits to over four million unauthorized aliens (chiefly, parents of U.S. citizens). Most of the argument—frustrating, over long stretches—focused on two issues: the plaintiff-states’ “standing” (constitutional and statutory) to litigate the case; and DAPA’s grant of “lawful presence” to millions of immigrants.

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Deferred Prosecution: Meet the Fokkers

Some months ago, I wrote about “deferred prosecution agreements” (DPA’s”). Initially intended to deal with low-level drug offenders, DPAs have become a principal means of prosecuting corporations. The way it works: the government files criminal charges but agrees to drop them if the defendant undertakes remedial action (including fines) and demonstrates good conduct over time. The deal requires “approval of the court” because without it, the deferment would violate the Speedy Trial Act. 18 U.S.C. § 3161(h)(2).

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Among the intriguing AdLaw cases on the Supreme Court’s docket is U.S. Army Corps of Engineers v. Hawkes.  The Hawkes own some land 120 miles from the nearest navigable river, where they want to dig up peat moss. The feds think that this land is their land, or water. In any event, no. To figure out whether this or that parcel is actually water and thus subject to the feds’ jurisdiction under the Clean Water Act the Corps has created a process called a “Jurisdictional Determination” (“JD”), which involves expensive (for the enforcement target) fact-finding and then adjudication before an administrative body.

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Little Sisters, Would You Please

Mother Loraine Marie Maguire, (C), of the Little Sisters of the Poor, walks down the steps of the US Supreme Court.(Photo by Mark Wilson/Getty Images)

Scenes from an Argument

I’ve perused the argument transcript in Zubik v. Burwell (better known as Little Sisters of the Poor v. Burwell) and some of the press coverage. I’ve also looked at the press pictures and noodled over whose side I’m on—the grim-faced harridans demanding free contraceptives now, or the cheerful Little Sisters.

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Prominent political observers in Latin America, the Wall Street Journal reports, are getting a tad nervous about Donald Trump. That’s not because President Trump would send their ex-pats back home. It’s because they know the type all too well.

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Money for Nothing

The Wall Street Journal has looked over some big bank settlements--$110 billion worth—and asked one of the obvious questions: where did all that money go?  Approximate answer: no one has any idea. No one keeps a tally; no one keeps track. That’s too bad because I’ve been wanting to know. Jointly with Chris DeMuth (former boss of OIRA, former boss of me, dear friend and no stranger to this site) I’ve written about “Agency Finance in the Age of Executive Government.” The subject is every scholar’s nightmare: lousy data, and no explanation that sounds immediately plausible. The idea that the settlements…

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American Exceptionalism Is Ending—Where?

Old American flag background for Memorial Day or 4th of July

Professor McGinnis’s fine post on the end of American exceptionalism has rudely preempted my equally fine, nearly finished essay on that very subject. Let me start where John ended and explain why it’s worse than he thinks:

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