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).

The President’s Power to Spend

In House of Representatives v. Burwell, yet another big case arising over the Affordable Care Act, U.S. District Judge Rosemary Collyer has ruled that the administration’s implementation of the Act’s subsidy provisions violates the Constitution. Lots of fun here; let’s start with the basics.

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More News from Antonin Scalia Law School

As described in my earlier post and a splendid Wall Street Journal piece by my colleague Lloyd Cohen, some members of the GMU faculty strenuously oppose the renaming of GMU School of Law after the late Justice Antonin Scalia, and the Faculty Senate has passed a resolution to that effect. The mau-mau artists have somehow managed to convey the impression that faculty opposition includes members of the law faculty. That is emphatically not so. As of May 12, the law faculty unanimously approved a resolution in support of the renaming, and in protest against the GMU Faculty Senate’s shameful agitation. Res…

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Immigration “Law” a la Obama: What a Wicked Game

Immigration Documents

A Ninth Circuit immigration decision bears crucially on the Supreme Court’s pending decision in Texas v. United States, better known as “the DAPA case.” The appellate court’s April 5 decision shines a harsh spotlight on the administration’s legal defense of its immigration policies.

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GMLunactics

The proposed renaming of my law school—heretofore GMU School of Law, henceforth Antonin Scalia Law School—has met with resistance among faculty members elsewhere at GMU. My colleague Lloyd Cohen has described the contretemps and ably defended both Justice Scalia and the renaming decision in the Wall Street Journal.

What of the opposition?

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Amtrak Sidetracked Again

Amtrak

Late last week, a panel of the D.C. Circuit dinged Amtrak for the second time.  The case (Association of American Railroads v. Department of Transportation) involves several constitutional questions regarding Amtrak’s funky set-up and operation. Herewith a few preliminary words on one of them: delegation and due process.

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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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Saving Originalism: A Reply by Stephen F. Smith

It was an honor for me to contribute my initial essay, “Saving Originalism from the Originalists,” to the Liberty Law Forum, and now I am doubly honored to have had my work reviewed by constitutional scholars as widely respected as Professors Michael Greve, Gordon Lloyd, and Mike Rappaport. I am grateful to each of them…

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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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