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).

They’re Baaack

US Supreme Court

Now that the Supreme Court is back in session, do you feel better? I do, a little. The docket for the 2015-2016 Term so far contains about 40 cases half the expected load for the Term. There is the usual smattering of Eighth and Fourteenth Amendment cases, which cannot end well. But there is also a gratifying number of cases (13 by my count) that (1) are about something real (money) and (2) pose difficult FedCourts-ish questions. Those cases may go right or wrong. But at least the justices will behave like lawyers, not oracles. Herewith three favorites, along with intrepid predictions.

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The Special-Interest State: Onward and Upward

Reichtum versus Armut, internationaler Vergleich, abstrakt

My buddy Steve Teles—in my estimation, one of the country’s most creative thinkers—just sent me his latest on “The Scourge of Upward Redistribution.” Here’s the lead paragraph: America today faces two great challenges. First, the explosion in inequality threatens the public's belief in the justice of our economic system. Second, the slowdown in the formation of new businesses, a key metric of economic dynamism, endangers economic growth and employment. The solutions to these problems are usually in tension with one another — greater inequality is often the price of economic growth — and our politics has been divided according to this tension, with one side playing…

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House v. Burwell

Capitol Flag

Even after the Supreme Court’s lamentable decision in King v. Burwell, litigation over the Affordable Care Act and the administration’s creative implementation of the statute continues. Last week, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia held that the House of Representatives has standing to sue the executive (more precisely, Secretaries Burwell and Lew) over their decision to implement an ACA program with unappropriated funds. While it’s certainly a good thing to keep this excretion of a statute in litigation, from here to eternity, there are reasons to be nervous about Judge Collyer’s ruling.

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Administrative Law in Turmoil: New Coke Causes Indigestion

Sir Edward Coke

Harvard Law School’s dynamic AdLaw duo (Cass R. Sunstein and Adrian Vermeule) has struck again. In The New Coke: On the Plural Aims of Administrative Law  the authors take aim at the insurgent fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challenge is playing a growing role in separate [Supreme Court] opinions, and on occasion, it finds its way into majority opinions as well. Justice Clarence Thomas is the principal advocate, but he has been joined, on prominent occasions, by Justice Antonin Scalia and  sometimes by Justices Samuel Alito and Chief…

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Regulatory Reform: A Brief Update

In last week’s post on the regulatory state I surmised that “a retrospective review of the [Obama administration’s] retrospective review exercise would prove it to be largely pointless.” Well, not quite. As the American Action Forum’s excellent Sam Batkins explains, agency review of old, outdated regulations has actually added some $14.7 billion in costs. Thank you, Doctor Sunstein. To the iron laws of the administrative state, we should add the following: It’s always worse than Greve thinks. Never permit the administrative state to look back. Instead, let the heralded purposes of Congress and of rulemakings past get lost in the vast hallways of the…

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Every Regime Gets the Lie It Deserves

political corruption

On my European excursions I’ve made it a habit of flipping through newspapers from Germany, Britain, and the good old U.S. of A. Lately and maybe belatedly, I’ve been struck by the sheer mendacity of politics on both sides of the pond. I don’t mean nasty little lies, fed by ambition (“I didn’t wipe my server; it’s the cleaning girl’s fault”), nor any of the stuff that earns you Pinocchios in the Washington Post. I mean deliberate falsehoods that are central to the operation of government—the “regime,” as Straussians are wont to say.

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The Regulatory State: A Modest Reform Proposal

Stack of compliance and rules books (clipping path included)

The Mercatus Center has just published a troubling snapshot analysis of the accumulation of regulatory mandates and restrictions since the Carter administration. Other analyses confirm the picture of a burgeoning regulatory state. My own favorite is the Competitive Enterprise Institute’s annual, invaluable !0,000 Commandments Report. But it’s the same picture wherever you look:

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Officer Removal, German-Style

Businessmen in rain

Last week, Germany’s chief prosecutor—Generalbundesanwalt Harald Lange—got himself fired. It’s a big enough deal to occupy the front pages and, in coming months and years, armies of administrative lawyers and scholars. The precise facts and circumstances are a bit murky, and the story is still unfolding. Enough is known, though, to invite some rule-of-law thoughts and a few cautious transatlantic comparisons and contrasts.

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Dodd-Frank’s Frankenstein Creeps Forward


Leave It to the States

Six or so out-of-town summer trips down, only four more to go before the start of the Fall semester—at which point I’ll be able to resume regular blogging, and maybe even some actual research and writing. Pending that merciful eventuality, here’s my Wall Street Journal review of Adam Freedman’s recent federalism manifesto, A Less Perfect Union: The Case For States’ Rights. I’ve met Adam occasionally at Manhattan Institute events. He’s a thoroughly good guy; creative thinker; great writer. Obviously I don’t agree with every chord in his federalism riff. Foremost: while Adam does a manful job in defense of “states’ rights,”…

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