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Protecting Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism

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Protecting Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism PROTECTING MEMBER STATE AUTONOMY IN THE EUROPEAN UNION: SOME CAUTIONARY TALES FROM AMERICAN FEDERALISM ERNEST A. YOUNG* The European Union's ongoing "Convention on the Future of Europe" must tackle a fundamental issue offederalism: the balance between central authority and Mem- ber State autonomy. In this Article, Ernest Young explores two strategiesfor pro- tecting federalism in America-imposing substantive limits on central power and relying on political and procedural safeguards-andconsiders their prospects in Europe. American experience suggests that European attempts to limit central power by enumerating substantive "competences" for Union institutions are un- likely to hold up, and that other substantive strategies such as the concept of "sub- sidiarity" tend to work best as political imperatives rather than judicially enforceable doctrines. Professor Young then examines the "politicalsafeguards" of Member State autonomy in the EU as currently constituted. He argues that the balance between the center and the periphery is likely to be affected by how the EU resolves basic separation-of-powersquestions at the center. Efforts to address per- ceived deficiencies of the Union government in its resource base, lawmaking effi- ciency, and democratic legitimacy likewise will have a fundamental impact on federalism. Finally, Professor Young touches on two broader themes. He first asks whether Europeans, given their cultural distinctiveness, would prefer a stronger form of federalism than America has been able to maintain; if so, the American experience is relevant primarily as a cautionary tale. He then considers how Eu- rope's institutional experience and current debate can inform the American dis- course on federalism by helping Americans break free of ideological and historical preconceptionsand offering insights into emerging issues at the intersection of do- mestic constitutions and supranationalinstitutions. INTRODUCTION ................................................. 1613 I. EUROPE'S GREAT EXPERIMENT ......................... 1621 A. The Tale of the Treaties ............................. 1623 B. The Community Institutions......................... 1625 * Assistant Professor of Law, The University of Texas at Austin. B.A., 1990, Dartmouth College; J.D., 1993, Harvard Law School; [email protected]. I presented earlier versions of this paper at St. John's College, Oxford, and the University of Siena, and I am indebted to Paul Craig and Francesco Francioni for their hospitality and insightful observations on those occasions. I am also grateful to Hans Baade, Lynn Baker, Daniel Halberstam, Mattias Kumm, Doug Laycock, Jonathan Pratter, Steve Ratner, Larry Sager, Russell Weintraub, and Allegra Young for helpful comments on drafts, as well as to the participants in the UT Faculty Colloquium. Finally, I appreciate the helpful research and editorial assistance of William Ashworth, Kelli Baxter, and Beth Youngdale, as well as Gerald Neugebauer, Jason Padgett, and the other editors of the New York University Law Review. 1612 Imaged with the Permission of N.Y.U. Law Review December 2002] PROTECTING MEMBER STATE AUTONOMY C. Allocating Power Between the Member States and the Union ........................................... 1633 D. Three Challenges .................................... 1636 II. FEDERALISM AND THE PROBLEM OF DOCTRINAL AND INSTITUTIONAL DESIGN ................................. 1640 A. Federalism and Comparability ...................... 1641 B. Three Approaches to Federalism Doctrine........... 1645 1. Power Federalism............................... 1645 2. Process Federalism.............................. 1649 a. Clear Statement Rules ....................... 1651 b. Anticommandeering......................... 1653 c. The Federal Separation of Powers........... 1655 d. Cross-JurisdictionalRelationships ........... 1659 3. Immunity Federalism............................ 1660 IIl. POWER FEDERALISM IN EUROPE ....................... 1663 A. The Trouble with Categories: Dual Federalism in A m erica ............................................ 1664 B. Enumeration and Competences ..................... 1670 C. Subsidiarity ......................................... 1677 IV. THE POLITICAL SAFEGUARDS OF MEMBER STATE AUTONOMY ............................................. 1682 A. Safeguards Against What? Of Vertical and Horizontal Aggrandizement ......................... 1683 B. Council, Commission, and Parliament............... 1689 1. The Two Councils .............................. 1689 2. The European Commission ..................... 1694 3. The European Parliament....................... 1697 C. Enforcement, Resources, and Efficiency ............. 1705 D. Statutory Interpretationand Teleology ............... 1712 E. Amendment, Entrenchment, and Judicial Review ....1718 V. BROADER LESSONS ALL ROUND ....................... 1723 A. Federalismor FederalismLite? ...................... 1723 B. Europe, Federalism, and Time ...................... 1726 C. America's Federal Conversation..................... 1730 CONCLUSION ................................................... 1735 INTRODUCTION Since March of this year, some 100 delegates from the member nations of the European Union have been meeting in Brussels to be- gin a "Convention on the Future of Europe." In calling the conven- tion, the European Council's Laeken Declaration asserted that "the Union stands at a crossroads, a defining moment in its existence. The Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 77:1612 unification of Europe is near."' The declaration charged the conven- tion to redefine and reallocate the division of functions between the Union and its Member States, to simplify the Union's constitutive in- struments, and to bring "[m]ore democracy, transparency, and effi- ciency" to the Union.2 Many hope the convention will replace the EU's complex web of constitutive treaties with a definitive constitu- tion.3 Former French President Val6ry Giscard d'Estaing, whom the Council selected to head the convention, has said that the delibera- tions "recall[ ], in some respects, the famous convention of Philadel- phia of 1787. ,,4 The European convention, like the Philadelphia Convention before it, confronts a basic problem of federalism: how to create a set of central institutions strong enough to pursue common ends effec- tively at home and exert influence abroad, while at the same time pre- serving the autonomy of the Member States. Many Europeans have traditionally shied away from the term "federalism," which is often equated with the creation of a European "super-state. ' 5 Peter Hain, the British Minister for Europe, recently warned of "creeping federal- ism" in the EU, complaining that "[t]he powers have all been going towards Brussels and away from nation states."' 6 But issues of federal- ism exist whenever a society seeks to divide power between a central government and its component units. Prominent Europeans, moreo- ver, have become willing to use the term in recent years. German Foreign Minister Joschka Fischer, in a famous speech two years ago, called for a "European Federation."'7 And European academics and 1 European Council, Laeken Declaration on the Future of the European Union, Dec. 15, 2001, in Presidency Conclusions: European Council Meeting in Laeken 14 and 15 De- cember 2001, annex I at 19, http://ue.eu.intlpressData/en/ec/68827.pdf [hereinafter Laeken Declaration]. 2 Id. 3 See Daniela Spinant, Historical Convention on EU Future to Kick Off, Feb. 28,2002, at http://www.euobserver.com/index.phtml?aid=5368. 4 Valdry Giscard d'Estaing, Letters to the Editor, The European Convention, Int'l Herald Trib., Dec. 27, 2001, at 7. For more skeptical assessments, see, e.g., In Search of "Good Europeans," Economist, Jan. 26, 2002, at 45; Robert Kagan, Postcard from Belgium, Wash. Post, Dec. 21, 2001, at A45; Flora Lewis, Europe: The Euro Is Fine, But Where Are the Big Decisions?, Int'l Herald Trib., Jan. 4, 2002, at 6. 5 See, e.g., Klaus von Beyme, Fischer's Move Towards a European Constitution (lain L. Fraser trans.), in What Kind of Constitution for What Kind of Polity? Responses to Joschka Fischer 73, 78 (Christian Joerges, Yves M6ny & J.H.H. Weiler eds., 2000), http:// www.iue.it/RSC/pdf/J.%20FISCHER%20text%20.pdf [hereinafter What Kind of Constitu- tion] (observing that "Britain, in particular, would tolerate no echo of federal vocabulary" in Maastricht Treaty). 6 Andrew Grice, Hain Warns of "Creeping Federalism" in EU, Indep., July 22,2002, at 1. 7 Joschka Fischer, From Confederacy to Federation: Thoughts on the Finality of Euro- pean Integration, Speech at the Humboldt University in Berlin (May 12, 2000) (trans. of Imaged with the Permission of N.Y.U. Law Review December 2002] PROTECTING MEMBER STATE AUTONOMY jurists are increasingly discussing the European future in federalist terms, notwithstanding profound differences about what sort of feder- alism they want to see." The "F word" 9 is in the air. "F word" jitters may have intensified this September when the EU Observer, an on-line news service, somewhat breathlessly re- ported that "[m]embers of the European Parliament suspect Val6ry Giscard d'Estaing, president of the Convention on EU future, of tak- ing too much interest in the American institutional system, with a view to introducing it in the European Union."'10 Despite the report's suggestion that the very enterprise of comparative scholarship ought to be grounds for suspicion, the new constitutional
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