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 isy The Upside-Down Constitution (Harvard University Press, 2012).

Why Government Fails When It Succeeds

It’s good to be back to blogging. For a warm-up bear with me through a family saga: it may be funny, for you. And there may be a point.

A late uncle of mine (let’s call him “Bruno”) died in 2013. I know little of him except that my mother, then 13 years of age, dragged him (then age 3 or 4) through the Hamburg firestorms in 1943. I met him once—at my grandmother’s funeral, where they had really good food. From various conversations that I did not follow at the time (the 1960s) and cannot now recollect, I understand that my mother and aunt bailed Bruno out of trouble at various times over the decades. His life was fully European—aimless, on public support, and fruitless (so far as we know). It’s a very sad story.

Having been informed of Bruno’s death, we all (with an exception noted below) promptly renounced the inheritance by means of a notarized declaration. The guy can’t own anything except debts, probably including colossal debts to the German government for late-life care: who wants that? But that clever maneuver has come a cropper.

Read More

Halbig and Obamacare: What We Have Learned (Part II)

Herewith, as promised in Part I, a few additional thoughts on Halbig’s lessons. My humble observations aren’t intended as nuanced legal analysis; there’ll be time enough for that as the cases progress. Today’s subject is the broader context of how the doctrines and institutions that have sustained administrative law are coming apart at the seams.

Read More

Halbig and Obamacare: What We Have Learned (Part I)

ObamacareTwo-plus weeks have passed since the D.C. Circuit’s panel decision in Halbig v. Burwell and the Fourth Circuit’s opposite decision in King v. Burwell, a substantially identical case.[1] The King plaintiffs have filed their cert petition; and the government has asked for rehearing en banc in the D.C. Circuit; and the initial agitation has subsided. It’s a fine time to highlight a few lessons that, in my estimation, we have already learned. I offer three sets of observations: today, I’ll focus on the interplay between constitutional and administrative law and on the advocacy network that produced Halbig and its companion cases; tomorrow, I’ll analyze the institutional pathologies and ideological derangements that account for the contretemps.

Read More

Adversarial Corporatism: Additional Thoughts

I am deeply grateful to Brian Mannix and to Peter Conti-Brown for their thoughtful, indeed profound comments on my “adversarial corporatism” post. I am equally grateful to Richard Reinsch and the Liberty Forum for hosting this exchange. To paraphrase the Boss, we learn more from three minutes on this blog than we ever learned in school. Peter has this exactly right: the post was a first cut at developing a conceptual framework for the contemporary regulatory state and its perplexing m.o.—more than a thumb sucker, but way less than a worked-out theory. And Brian may well be right that the moniker…

Read More

More Responses

The New Cronyism of the Old Rent-Seeking State

Michael Greve’s essay vividly describes some deeply troubling trends in the relationship between the government and the economy. It provides a much needed perspective at a time when politics and policy-making are nothing if not adversarial, and more casual observers succumb to the temptation simply to choose sides without asking how we came to this…

Read More

Does a Sophisticated Theory Miss the Facts?

Michael Greve introduces “adversarial corporatism,” a new conceptual lens through which to view the growing and contentious collaboration of industry and government. Adversarial corporatism takes the conventional story of crony capitalism and regulatory capture—a story appealing to critics on the left and the right alike—and adds a dose of a starker reality: the cooperation is…

Read More

The Rise of Adversarial Corporatism

corporatism

Timothy F. Geithner, former U.S. Secretary of the Treasury and savior of the free world,[1] has lamented the intractable paradox of financial crises: government must lend freely to actors who by all rights should bear the price of their own reckless conduct and be wiped out. The post-crisis years have been marked by a related but somewhat different paradox: On the one hand, the government has recapitalized financial institutions, subsidized them, and drawn them closer to its ample bosom. On the other, it has hit those same institutions with an avalanche of prosecutions. Settling these cases is very costly; one…

Read More

Responses

The New Cronyism of the Old Rent-Seeking State

Michael Greve’s essay vividly describes some deeply troubling trends in the relationship between the government and the economy. It provides a much needed perspective at a time when politics and policy-making are nothing if not adversarial, and more casual observers succumb to the temptation simply to choose sides without asking how we came to this…

Read More

Does a Sophisticated Theory Miss the Facts?

Michael Greve introduces “adversarial corporatism,” a new conceptual lens through which to view the growing and contentious collaboration of industry and government. Adversarial corporatism takes the conventional story of crony capitalism and regulatory capture—a story appealing to critics on the left and the right alike—and adds a dose of a starker reality: the cooperation is…

Read More

Adversarial Corporatism: Additional Thoughts

I am deeply grateful to Brian Mannix and to Peter Conti-Brown for their thoughtful, indeed profound comments on my “adversarial corporatism” post. I am equally grateful to Richard Reinsch and the Liberty Forum for hosting this exchange. To paraphrase the Boss, we learn more from three minutes on this blog than we ever learned in…

Read More

As Detroit Goes…

So the Motor City, through its emergency manager, has submitted to its numerous creditors a plan—still under wraps for now—to deal with its $18 billion debt. It’ll be interesting to learn what they propose to do about investors (screw ‘em, but how badly?); about pension costs; and about the city’s huge unfunded health costs. (Fearless prediction: a transfer of those costs to the feds, either through Medicaid or an ACA Exchange, will have to be part of any deal.) It will also be interesting to see just how the city proposes to pay its obligations going forward. That’s not just…

Read More

Geithner’s Gangster Government?

Here and there I’ve noodled over the prospect that the U.S. might turn into Argentina. I did not mean it as a policy recommendation.

Geithner Testifies At House Hearing On International Financial SystemComes news that in 2011, then-Secretary Timothy Geithner called Harold McGraw III, Chairman of Standard & Poor’s Ratings Services’ parent company, to warn him that the firm would be held “accountable” for its downgrade of U.S. debt (prompted by the melee over the debt ceiling).

Read More

Polarized States: A Quick Update

A few weeks ago I blogged political polarization among states, and the potential upsides. The topic has traction. Adam Freedman and the Manhattan Institute have a fine take here. And the New York Times has two feature-length pieces here and here. Mirabile dictu, these actually convey information. The first piece examines the national political strategies (on both sides) to shape state politics: hugely interesting. The pessimistic interpretation is that states are becoming mere staging grounds for national winner-takes-all combat. The optimistic interpretation: it’s good that the combatants have to fight state-by-state. It diffuses and compartmentalizes the conflicts. The second piece is on…

Read More

District Court Upholds Obamacare Exchanges

Earlier today, Judge Friedman (D.D.C.) sustained an IRS rule to the effect that Obamacare’s subsidies and coverage mandates apply in all states with a health care exchange--not just those with a state-run exchange but also those with a federal or federally “facilitated” exchange. That is so, the judge held, despite statutory language that specifically refers to exchanges established by or ”a state.” The IRS (or for that matter HHS) is not a state but never mind. The opinion is here; news coverage here. The judge’s opinion is (in my humble estimation) not a “let’s-save-Obamacare” blow-off: it wrestles with a serious problem…

Read More