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).

EPA’s Greenhouse Gases Regulation Meets Federalism

f1b8b678-e686-4e75-baf6-ab2ae45eeb22

Under the Constitution, states have no right to “interpose”—that is, to block the enforcement of supreme, validly enacted federal law. However, with the arguable exception of the judges in each state, state officials are under no obligation to execute an affirmative federal command issued to them. They cannot be ordered to accept federal funds or to establish an exchange. The ACA illustrates the salutary force of this constitutional precept: grand federal schemes gang aft agley. The next big illustration could and hopefully will be the regulation of greenhouse gases under section 111(d) of the Clean Air Act (CAA), coming very soon in this theater.

Read More

How to Avoid Argentine Federalism

James L. Buckley is a former U.S. Senator, federal judge, and real-life saint. The Federalist Society’s 2014 Annual Convention featured a presentation and panel discussion on his most recent book, Saving Congress from Itself. As the title suggests, Jim Buckley—even at age 91—is into tasks that are kind of biggish. His key proposal is to phase out any and all federal transfer payments to state and local governments.

Robert R. Gasaway (Kirkland & Ellis—once upon a time, Judge Buckley’s law clerk) chaired the panel composed of Senator Buckley, John Eastman (Chapman Law School), and yours truly. Pending FedSoc’s posting of the video, my humble remarks appear below. More fodder for my friend Linda Greenhouse, I suppose.

Saving Congress from Itself is a must-buy and must-read. I wish I could write like that.

 

God bless Senator James Buckley.

Read More

D.I.G. King v. Burwell?

GruberThe hubbub over the ACA is getting weirder and weirder. Amidst other revelations, there appears to be an extensive but as-yet undisclosed legislative history bearing on the pending Supreme Court litigation in King v. Burwell. One surprise at a time, though:

Professor Jonathan Gruber has by now well earned the George Washington Cherry Tree Award. Congenitally incapable of telling a lie, he blurts out an inconvenient truth about the act every time he opens his mouth. In today’s Wall Street Journal, Tevi Troy unveils “Another ObamaCare Deception” cheerfully revealed by Professor Gruber, this one having to do with an artfully disguised tax on “Cadillac” health plans that will eventually encompass Chevys.

Read More

Commerce, Interrrupted

Business Background

Herewith (as promised) a brief comment on brother Rappaport’s splendid earlier post on the “exclusive” Commerce Clause. Here’s the key paragraph:

It is too bad that Congress does not have the exclusive commerce power, because I believe it would be better than the original meaning.  An exclusive power would make it less likely that the states would have agreed to the New Deal expanded, concurrent commerce power.  Thus, the exclusive power would have been unlikely to have been expanded into the broad scope that the current commerce power has.  With a more limited scope, the federal government would have limited authority, as would the states.  There would not be two governments exercising the same authority and neither would have complete power to create cartels.  This arrangement came close to being followed in the pre New Deal era, when the Court came pretty close to recognizing a limited federal Commerce Power that was largely exclusive.   But it is now, sadly from a policy perspective, gone with the wind.

I think there’s pretty powerful evidence to the effect that the Founders did mean the Commerce Clause to be exclusive; it’s just that their idea of what constitutes “commerce among the several states” was so much narrower that ours.

Read More

Yet More on State Taxes and Dormant Commerce

Mike Rappaport’s latest post on the dormant Commerce Clause makes an excellent and hugely important point. (It has to do with a potentially exclusive Commerce Clause, and how that plays out in a statutory setting.) I swear I’ll get around to commenting on it, the minute I come up for air. For now, as previously threatened, a link to an exchange of views on the Supreme Court’s forthcoming (November 12) argument in Comptroller v. Wynne, published by the Vanderbilt Law Review En Banc. As previously described, Maryland imposes local taxes on residents’ income wherever earned, without crediting taxes already paid to other…

Read More

Prosecuting with Dynamite

Word cloud for Sarbanes-Oxley Act

So here’s how this went down, supposedly: Mr. Yates, a commercial fisherman, tools around on his “Miss Katie” in the Gulf of Mexico. Along comes a vessel with government officials (state officials, but deputized by the feds to enforce federal fishing laws). The officials board Miss Katie and find suspicious red grouper: the fish look too small. They measure some of the fish and find that six dozen are below the legal size of 20 inches. They instruct Mr. Yates to keep the small fish in an ice box until docking, and depart. Mr. Yates instructs his crew to toss the offending fish overboard and to replace them with legal specimens.

He gets indicted and convicted (30 days in the slammer and three years supervised release)—under what law? 18 USC 2232(a) (destruction or removal of property to prevent seizure); and (drumroll!) the Sarbanes-Oxley Act (SarbOx).

Read More

Jonathan Gruber: Airbrushed from History

GruberA flurry of activity surrounding the Affordable Care Act (described below) brings to mind a bitter-cold day in February 1948, when party leader Klement Gottwald stepped out onto a Prague balcony to announce the birth of Communist Czechoslovakia. A solicitous comrade (Clementis) placed his fur cap on Gottwald’s bare head. As Milan Kundera describes it in The Book of Laughter and Forgetting:

Every child knew the photograph from posters, schoolbooks, and museums.

Four years later Clementis was charged with treason and hanged. The propaganda section immediately airbrushed him out of history and, obviously, out of all the photographs as well. Ever since, Gottwald has stood on that balcony alone. Where Clementis once stood, there is only bare palace wall. All that remains of Clementis is the cap on Gottwald’s head.

What remains of Jonathan Gruber?

Read More

Administrative Law Without Congress

Administrative Law—both in its New Deal and its modern, post-Chevron version—rests on legislative supremacy. In other words, it assumes that there’s a halfway functional Congress. What if there isn’t? What happens when Congress fails to update ancient statutes and, when legislating at all, enacts convoluted statutes (such as Dodd-Frank or the ACA) that no one can make sense of? What if everyone starts taking it for granted that Congress is hopeless? Ashley Parrish and I explore the question in a forthcoming article in the GMU Law Review. (Mr. Parrish, a dear friend and frequent co-conspirator, is a partner at King &…

Read More

A Constitutional Congress

In an exceptionally important article, Chris DeMuth addresses the deep pathologies of our politics. Chris has written extensively about the fateful drift into executive government, which (he cogently explains) is also a debt-ridden and lawless government (see his website here).  In this piece, he tackles a principal institutional cause of those tendencies: for Congress, legislation has become an unnatural act, to be performed only in extremis. Thus, a constitutional revival will require a cultural revival. Recovering Congress’s lost powers will require relearning legislative skills, redirecting legislators’ energies, and risking the ire of party constituencies who are unfamiliar with the obligations of…

Read More