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).

Amending the Constitution with Buchanan and Buckley

US Constitution Historical Documents with Quill Pen

Along with Michael Rappaport, I participated in Michael McConnell’s “Big Fix” conference, held at Stanford Law School this past week. “Should We Amend the Constitution?” was the subtitle of the fun event. You can talk me into that, provided law profs don’t get to vote. A dismaying number of amendment proposals aimed to Europeanize the U.S. Constitution (for example, by importing the European and Canadian courts’ “proportionality” tests into our ConLaw, which I had thought could not get any worse). Others sought to make the republic yet more “democratic”—an endeavor that for n reasons, some ably stated by Brother Rappaport, merits firm resistance and, in the event of success, a bulk purchase of OxyContin.

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Administrative Law, in Full View and Flux

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The questions surrounding the administrative state and its law are really big. They are institutional and constitutional, and they demand rigorous thought and engagement outside the Chevron box.

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Federalism By Judicial Press Release

I’m a little late with this but why am I always right? Back in February, I commented on the “sanctuary city” litigation: [L]awsuits filed by San Francisco and some other jurisdictions are, at best, wildly premature—“unripe,” as the lawyers say. That doesn’t necessarily mean they are stillborn. The Ninth Circuit’s recent travel ban decision strongly suggests that the ordinary rules governing preliminary injunctions, standing, statutory interpretation, and other lawyerly distractions no longer apply in these sorts of cases—perhaps because immigration is now, like climate change or gay marriage, one of those issues that “arouses the judicial libido,” to purloin a fine phrase of Justice Scalia’s. Or perhaps on…

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Kate O’Beirne, In Memoriam

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Kate Walsh O’Beirne, conservative grande dame with tons of class and zero pretensions, died this past Sunday. Mutual friends who knew her up-close—Bill Kristol, Ramesh Ponnuru, Jonah Goldberg—have posted affectionate, moving tributes. But she inspired and will be missed by countless others who, like me, knew Kate only much more casually. Eons ago, Grover Norquist introduced me to her: “Mike, meet my leetle yellow friend, Kato Beirne.” Thank you, Inspector Clouseau. There ensued the first of many thoroughly enjoyable exchanges about current affairs. Kate loved repartee, cigarettes, and snark, and she had no patience for claptrap. Conservatism’s version of Lauren Bacall, with…

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Chuck Berry v. The Administrative State

I have very fond memories of the late Chuck Berry, deceased this past weekend at the age of 90.  His music changed my life, from my ill-spent youth to the AdLaw lessons I seek to convey in my dotage.

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Of Sanctuaries and Sanctimony

There has been a lot of agitation and, predictably, litigation over the President’s firm intent to whip “sanctuary cities” into line. The general tenor of the online commentary has been “Federalism Lives!” exultation, from Left (Jeffrey Rosen) to Libertarian (my colleague Ilya Somin, whose post links to like-minded writers). Courtesy of the Rehnquist-Roberts Court’s constitutional doctrines on federal funding and “commandeering,” the chorus chimes, the President cannot do what he has proposed to do by executive order—yank federal funds from non-cooperative jurisdictions.

For reasons I’ll explain at somewhat painful length, it’s not at all certain he can. The “let’s hear it for federalism” folks may yet be right—but for somewhat different reasons than they think.

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Michael Novak, RIP

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Michael Novak, one of the country’s most eminent thinkers, theologians, and public intellectuals, passed away this past Friday at age 83. His many friends mourn, and the Heavens rejoice. They’re probably listening to Johann Sebastian Bach up there—by Michael’s lights, the best Catholic who never actually was one. I can’t say that I knew Michael Novak particularly well. I first met him in 1985, when he interviewed me for a research assistant position at the American Enterprise Institute. I had read The Spirit of Democratic Capitalism (1982), Michael’s confident and justly famous embrace of a free economy and the rule of…

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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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