Tuesday, October 11, 2016

The E.U.’s Border-Control and Coast Guard: Held Hostage by Confederalism

In policing its borders as late as 2016, the E.U. suffered the same plight as the U.S. did under its Articles of Confederation—only whereas in the case of the U.S. the States retained all of their governmental sovereignty under the Articles, some governmental sovereignty in the E.U. was already lodged at the federal level. I contend that this perplexing disjunction between extant federal competencies and state rights in the E.U. is not sustainable.

On October 6, 2016 when the E.U. opened its Boarder and Coast Guard Agency to police the E.U.’s borders given the refugee crisis stemming from Syria’s civil war, the state governments were not required to provide guards and equipment. Those governments had “proved slow in delivering on their pledges to the agency’s predecessor, Frontex.”[1] Accordingly, E.U. Migration Commissioner, Dimitris Avramopoulos, warned, “Everyone must join in and implement it as soon as possible. We have no time to lose.”[2] He was not the first federal official to face such a frustration. Similarly, Alexander Hamilton had had so much difficulty getting the U.S. States to send their quotas of men and equipment to General Washington’s Continental Army that he would later push for a large transfer of governmental sovereignty to the federal level of the U.S. Fortunately, that level had few enumerated powers under the Articles of Confederation, whereas the E.U. Commission has a substantial number of competencies in 2016.

Therefore, having to rely on voluntary contributions from the state governments really does not fit in the case of the E.U.’s border-control and coast guard agency. Even just getting to the goal of 1,500 border-guard officers could be difficult if state officials decide to hold their government’s quota hostage for some other political purpose, for example. Moreover, that a state could fall short and yet get the benefit of border-control agents sent from other states gives such a state an incentive to fall short. Exactly the opposite should be the incentive.

The underlying problem is structural in nature: the federal level of the E.U. had at the time sufficient competencies (i.e., enumerated powers) that the extent of remaining state sovereignty was too much for the federal system itself to function viably. Put another way, state and federal officials, and the European electorate, had stood by in desiring both more federal competencies and substantial state sovereignty—proverbially wanting their cake and eating it too.

[1] Valentina Pop, “EU Launches Effort to Police Its Borders,” The Wall Street Journal, October 7, 2016.
[2] Ibid.