For a federal system to be viable over the long term, a core
of basic values must be shared even though one of the main functions of
federalism as a system of government is the ability to accommodate diversity
from state to state. In the case of the E.U. and the U.S., the rule of law,
democracy, and separation of powers as concerns the independence of judiciaries
at the state and federal levels are non-negotiable; hence as these are
compromised or thwarted outright, the viability of E Pluribus Unum can be expected to unravel. As 2017 came to an end,
the E.U. found itself largely impotent as some of the eastern states violated
the basic principles of rule of law and an independent judiciary with impunity.
If the impunity was indeed real, the federal system itself was in desperate
need of repair.
The expansion of the U.S. westward during the nineteenth century
brought the rule of law to the “wild west.” Similarly, the expansion of the
E.U. eastward in the early decades of the twenty-first century was meant in
part to instill the rule of law after
decades of corruption under communism. Yet
in the state of Poland late in 2017, the state government fired more than a
third of the judges on the state’s highest court. That government even ignored
the ruling of the state’s constitutional tribunal, “prompting the European
Commission to trigger a sanctions procedure that could strip Poland of its
voting rights in the union.”[1]
Making the weakness of the E.U.’s lopsided (i.e., state dominated) federal
system transparent, the governor of the state of Hungary declared he would veto
any such stripping. The conflict of interest is obvious, given Viktor Orban’s “increasing
authoritarianism” in Hungary.[2]
In particular, his Fidesz party had forced judges into early retirement and
exerted control over the media, central bank, and data protection in the state
after winning a supermajority in the state legislature in 2010. That the
federal procedure for punishing the state government of Poland could be subject
to a veto from another wayward state government points to weakness at the
federal level. Specifically, not enough governmental sovereignty had been
shifted from the states to the Union.
The compromised independence of state judiciaries cut into
the core values of separation of power and of law, which are essential in any
viable republic (i.e., representative democracy); for a democratic majority can
oppress minorities and individuals and thus deprive them of essential liberties
that in turn underpin a democracy. Although the state of Bulgaria, which began
its six-month E.U. “presidency” in January, 2018, had made some progress
against corruption, that state and Romania were said by the Commission to have
not made enough progress to end a decade of special monitoring. To be sure, Malta
too had issues with the rule of law. The same could be said of the Sicily
region of the state of Italy, where the mafia was still vibrant, so the western
states were not immune. Even so, an E.U. official said that people in the west
felt betrayed by their fellow citizens in the east.
A house divided cannot long stand, it is said, yet
institutions have an incredible amount of undeserved inertia. Even so, the
gravity of the problem facing the E.U., which I contend is enough to warrant an
additional shift of governmental sovereignty to the federal level with respect
especially to the ability of the “feds” to come down on wayward states, is
evident from E.U. Vice President Frans Timmermans’ statement that undermining
the rule of law “is putting at jeopardy the very core of what holds us
together.”[3]
Perhaps the E.U. should have held off the accessions of the formerly Communist
states or taken a greater role in ongoing monitoring in them, but the
fundamental values of a political culture are slow and even resistant to
change. The federal level of the E.U. needed more power with which to stave off
inertia or back-sliding in the problematic eastern states. A federal FBI and
adequate federal laws to go after individual wrongdoers in the state
governments could have made a dent in the problem, in that E.U. citizens living
in the east could have seen that participating in corruption does not pay even
if it still does locally. The ECJ could have been empowered to take on a larger
role with respect to the state governments and even their respective individual
officeholders. Criminal law is not among my areas of expertise, however,
whereas I can state decisively that the inability of a federal level to enforce
basic principles against opposition in a few states points to a serious
weakness in the federal system itself with respect to the relation of the
federal and state levels in terms of authority. A viable federal system enables
both the federal and state levels to act as checks against the other, and this
requires something approaching a balance of power between the two levels. In
the case of the E.U., as in the early U.S., the problem has been the
insufficiency of power at the federal level.
[1]
Valentina Pop and Daniel Michaels, “EU Confronts Deep Divisions Over Legal
Standards,”The Wall Street Journal, January
19, 2018.
[2]
Ibid.
[3]
Ibid.
