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).

Regulatory Reform: A Few (Not So) Easy Pieces

US President Donald Trump signs an executive order on January 20, 2017. (JIM WATSON/AFP/Getty Images)

In Monty Python’s immortal words I’m not dead, yet; but I don’t have much insight into the new political era, either. I therefore commend to your attention a sensational essay by someone who does: “Regulatory Reform,” by Christopher C. DeMuth. One of Chris’s best pieces ever, and that is saying something. Under a cheekily acronymed REFORM Act (Refer­rals from the Executive For Regulatory Modernization):

[T]he president would refer selected reg­ulatory reforms to the House and Senate and urge their prompt consideration and approval. Where an agency rule departed from a reasonably clear statutory provision, or from judicial interpretations of a broad or ambiguous provision, the agency would explain the departure and the reasons for its new approach. The reasons could not, for the REFORM procedure, be sheer policy preference—rather, they would be limited to improving the agency’s pursuit of the missions Congress had already assigned to it. […] Congress would approve the rule itself, not just its issuance. And, in cases of uncertain stat­utory authority, the submitted rule would be accompanied by suggested, surgical statutory revisions, and Congress could enact the revisions along with its approval of the implementing rule.

With characteristic verve, sophistication, and political horse sense, DeMuth explains how and why this might actually work, and why it would be a very good thing.

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Adrian’s Abnegation

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Adrian Vermeule, John H. Watson Professor of Law at Harvard University, is a bold, original, and often brilliant thinker—and at times his own worst enemy. Along with a cornucopia of trenchant insights on (administrative) law, his copious output contains cheap polemics; intemperate attacks on scholars and judges who peddle “libertarian” law; reckless flirtation with proto-fascist legal tropes; and wild theorizing backed by little more than ipse dixit. That latter tendency in particular is on display in Law’s Abnegation: From Law’s Empire to the Administrative State. The book’s principal theme is the perennial tension between the lawful government of “classical” constitutionalism and…

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Farewell

With this post I bid a very fond farewell to Law and Liberty, its brilliant mastermind Richard Reinsch, and readers and commentators, faithful and occasional, over the past near-five years. I’ll continue to contribute as the spirit and Richard’s impetuous demands may move me. But my more-or-less regular contributions end with this post. That is as it should be, and it comes at the right moment. My engagement here has been like most of my career: wholly fortuitous, and undeservedly rewarding. Richard recruited me for the launch in the hope of giving air to a fresh, heterodox voice in a vibrant…

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Better Days, Really?

Any serious checks on the separation of parties and executive government, I’ve argued in my earlier post, would compel us to re-think big pieces of the constitutional and institutional architecture—stuff we haven’t thought about and that’s wholly missing from the GOP’s pedestrian “Better Way” agenda.  Herewith some examples of what that might look like. Here’s an option that ABW stumbles toward: under the German Constitution, one-third of the legislature can ask for immediate constitutional review of any piece of legislation. Why? Because Germany doesn’t have a separation of powers that permits one political branch to check the other’s transgression. It’s a…

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While It Was All Just Slippin’ Away

Yesterday, the Hoover Institution hosted a conference on “A Better Way,” the House Republicans’ agenda to make America perhaps not great again but at least work again. That proved a useful focus for a panel discussion featuring yours truly (video link to come). As for ABW itself, I’m with the Boss: Well my soul checked out missing as I sat listening  To the hours and minutes tickin' away Yeah just sittin' around waitin' for my life to begin While it was all just slippin' away The fact is that ABW is dead for the foreseeable future. Mr. Trump has severely compromised, if not single-handedly destroyed,…

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Not-So-Compact State Taxation

Last week, the shorthanded Supreme Court bounced back into action with orders on the pending clutter of cases. Among a slew of cert denials, some grants in mostly tedious cases, a handful of CVSG’s (Call for the views of the Solicitor General), and a gaggle of housekeeping orders, there was a relist in The Gillette Company v. California Franchise Tax Board. The humble Question Presented is whether the Multistate Tax Compact has the status of a contract that binds its signatory States. Gillette and a bunch of other companies say “yes.” California says the Compact was just a good-natured joke, and the California Supreme Court agreed.

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Our Impeachment Future

Vote to Impeach Andrew Johnson, May 16, 1868.

Last week I participated in two panel discussions at a Virginia Continuing Legal Education seminar, held at the Washington Library at the General’s Mount Vernon estate (it’s a spectacular place). Technically the panel dealt with Executive Orders but the moderator was John Dean (of Watergate fame—fit as a fiddle after all these years). So naturally the talk turned to impeachments. That got me thinking: arguably, it’s quite likely that the next President or perhaps some other official will be impeached (though not convicted).

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Higher Ed Bingo

The Office for Civil Rights (OCR) periodically sends “Dear Colleague” letters to higher ed leaders, suggesting ways in which their institutions might avoid running afoul of made-up civil rights requirements. Said leaders (presidents, provosts, etc) periodically send “Dear Faculty Colleague” letters, not to intimidate but to—actually, I don’t know what. I’ve cobbled together a letter from missives you can find on the internet (so it’s ferreal; only PCU is made up):

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Liberalism, Populism, and the Politicization of Everything

As this post goes up I’m off to Germany, this time for some actual work. In cooperation with the Council on Public Policy (a German think tank run by my buddy Michael Zoeller), the GMU Law & Economics Center runs something called the Transatlantic Law Forum (TLF). We assemble legal scholars, judges, and lawyers from both sides of the pond and the blessed isle in-between to discuss serious, salient questions related to constitutionalism and the rule of law. Our conferences alternate between GMU’s Antonin Scalia Law School and Bucerius Law School in Hamburg (Germany’s only private law school, and therefore far and away the best). Last year’s event at ASLS, on “The Administrative State and its Law,” produced terrific essays that will appear in a forthcoming issue of the George Mason Law Review; I’ll blog them.

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Presidential Power According to Jack Balkin

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Earlier this month Jack Balkin (Yale Law School) and I found ourselves on an APSA/Claremont Panel on “The Legacy of Justice Antonin Scalia,” alongside Hadley Arkes and Ralph Rossum. We couldn’t find anything to disagree about.

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