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 Dark Matter and the Corruption of the Department of Justice

U.S. Department of Justice building in Washington D.C.

Last week, in a case brought by the State of Texas and several other states and state agencies, a U.S. District Court (Judge O’Connor, Northern District, Texas) issued a preliminary injunction against the feds’ rule, or maybe it’s just a suggestion, contained in a “Dear Colleague” letter regarding bathroom, locker room, and shower access for transgendered individuals. Judge O’Connor ordered some further briefing on the appropriate scope of the injunction. The ruling is just one brief episode in the transgender bathroom saga, whose trajectory points to yet another Supreme Court determination on conflicts between the Constitution’s Meaning of Life Clause and the rule of law as we thought we knew it.

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The View from Berlin

Brandenburg Gate

My preceding post noodled over non-German authors’ contributions to the Frankfurter Allgemeine Zeitung’s “Crumbling Europe” series.  Today, a few of the Germans. Their contributions are charitably described as disappointing; if you’re seriously worried about the EU, hair-raising is a better adjective. The general pattern is 1) a resolute unwillingness to re-think the EU project, coupled with 2) an unnerving insistence of projecting Germany’s political preferences and attitudes onto the EU and 3) not one word of acknowledgment that the EU is confronting a central, blazingly obvious German problem (see my earlier post).

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EU Leaders Begin to Doubt “More Europe”

European union flag painted on dry cracked soil texture background.

Beginning pre-Brexit and ending post-Turkey coup, the Frankfurter Allgemeine Zeitung published a series of articles under the heading, Zerfaellt Europa? (Is Europe Crumbling?). Interesting stuff. Naturally it’s all in German and that be difficult speak. I’ll supply links upon request but you’ll have to trust my summaries and translations. Or ignore this and the next post.

Jointly and severally, the articles—authored for the most part by past and present politicians—suggest several conclusions. First, the idea that there might be something wrong with the EU that can’t be fixed with the demand for “more Europe” and “ever closer union” has begun to occur to responsible politicians. Good.

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No Vacation from History

Bayern am Strand

My annual vacation in the Frisian Caribbean usually falls into what the German media call the Sommerloch (“summer hole”): nothing to report. Not so this year.

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How Did Our Politics Go Insane?

lgn dac ve macerac

Jonathan Rauch of the Brookings Institution, a dear friend and one of the nation’s most insightful and thoughtful political observers, explains in a provocative Atlantic piece “How American Politics Went Insane.” The short answer, more fully elaborated in Jonathan’s earlier e-book, is disintermediation—that is, the demolition of political structures and mechanisms that, in a system of divided powers, make politics work and enable “middlemen” and power brokers to protect the system against crazies. Primaries and campaign finance reforms have weakened the parties. The destruction of the seniority and committee system has disabled Congress from legislating even when a (latent) consensus does exist. “Open government” reforms  have constricted the space that is needed for political bargaining. The “pork” that once greased the system has mostly disappeared. Over time, the institutional immune system has collapsed. The ensuing chaos has produced further public disaffection and populist agitation against “the establishment.” It’s a feedback loop, and not a good one.

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Hang in There, RBG: The Country Needs You

(MANDEL NGAN/AFP/Getty Images)

Like Mike Rappaport and much of the broader world, I’ve been baffled by Justice Ruth Bader Ginsburg’s New York Times ruminations—though not in the same way. Many of her observations strike me as obviously right. (It is in fact high time to move to New Zealand, or some place with lower mountains and even less government). And why should we heap opprobrium on a public official who actually tells the truth? She is wrong, however, not necessarily as a general matter but on her own terms, in deeming a Trump presidency an unthinkable horror: it might be her finest hour. RBG…

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The Migrating Power of the Purse

Chris DeMuth, an occasional contributor to this site, and yours truly have penned an exploratory article on “Agency Finance in the Age of Executive Government.”

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This Realm, This England

Northern England

I sure hope the Brits vote “Leave” on June 23. That would be the first thing to go right in global politics this year.

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Net Loss: D.C. Circuit Upholds FCC “Net Neutrality” Rule

FCC

In a momentous decision, a panel of the D.C. Circuit (Judges Srinivasan, Tatel, and Williams; opinion by Srinivasan, partial dissent by Williams) has upheld the FCC’s “net neutrality” rule. Henceforth broadband providers will be regulated not as information providers but as a “telecommunications service” under Title II of the Communications Act. Among other things this entails “must carry” obligations and a command that the providers may not charge different rates to different content providers (in regulatory parlance, “paid prioritization”).

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Puerto Rico: The Process Works, So Far

Puerto Rican flag on beach

In a 5-2 decision in Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust (Justice Alito recused), the U.S. Supreme Court has held that the Commonwealth of Puerto Rico may neither avail itself of the protections of Chapter 9 of the U.S. Bankruptcy Code nor, by way of a “Recovery Act,” authorize its municipalities and utilities to restructure debts owed to bondholders and various other entities (some $70 billion, at last count). Justice Thomas’s opinion for the Court rests on a strict reading of the statute, which says (in one provision) that Puerto Rico isn’t a “state” “for purposes of defining who may be a debtor under chapter 9” but defines the Commonwealth as a “state” for purposes of its preemption provision, which bars any state from enacting debt relief measures for municipalities outside Chapter 9.

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