Saturday, June 29, 2024

The U.S. Supreme Court Reining in Regulatory Agencies: Implications for the Imperial Presidency

In Loper Bright Enterprises v. Raimondo handed down by the U.S. Supreme Court on June 28, 2024, a majority of the justices overruled Chevron v. Natural Resources Defense Council, which had been the precedent giving regulatory agencies considerable discretion in coming up with specific regulations, given the penchant of the Congress to write vague laws. In the overturning case, a group of fishermen had objected to having to pay for government observers to board the fishing boats to monitor the fishing. On the merits, it does seem unfair for regulatory agencies to charge the regulated to be regulated. In overturning Chevron, however, Loper has much broader implications, chief among them being in terms of separation of powers—specifically in reining in the expanding power of the executive branch, here at the expense of the judiciary.   

Chevron had “required courts to give deference to federal agencies when creating regulations based on an ambiguous law.”[1] Loper could stimulate thought on whether Congress must necessarily promulgate law using vague language. Certainly Congress is capable of being quite specific when writing in loop-holes, or “carve outs,” for particular companies or industries in exchange for political campaign contributions. Moreover, from hearings, Congressional committee staff are surely capable of narrowing the discretionary area in which regulators can exercise considerable power that is essentially that of law-making. So one effect of Loper could be a shift of power from the executive to the legislative branch.

The decision also stood to “shift the balance of power between the executive and judicial branches.”[2] Although CNN goes on to claim that the decision “hands an important victory to conservatives who have sought for years to rein in the regulatory authority of the ‘administrative state’,” strengthening the role of the judiciary to look at administrative rulings is not in itself pro-business, as a judge could come down on an agency as being too lenient to an industry. The notion of regulatory capture, wherein whether from relying on data from a regulated industry or in exchange for lucrative future jobs in the industry for regulators, especially given government salary levels, means that giving courts more of a role in being able to evaluate and overrule agency rule-making and decisions could be a needed check against compromised regulators. At the same time, it is true that because the Supreme Court is the head of the judicial branch of the federal government, a decision that shifts power from one or two of the other branches to the judiciary puts the Court in an institutional conflict of interest (and the justices in personal conflicts of interest as their power would likely increase). Perhaps Congress should have been the branch to decide on the role of the judiciary with respect to the agencies in the executive branch.

Shifting power from the executive branch to the two other branches, especially the judiciary in this case, can also be viewed as a mild correction to the steadily increasing power of the U.S. presidency. In The Imperial Presidency, Arthur Schlesinger traces the increasing power that has come at the expense of the other two branches. The claim of such a correction may be problematic, as reining in regulatory agencies is not the same as reining in a president’s power, such as in exercising the bully pulpit in being able to speak directly to the American people directly as well as through a president’s surrogates. Also, a president as commander in chief and in promulgating foreign policy is unaffected.

It can even be argued that as presidents have typically been oriented to proposing broad policies for Congress to enact through law, that a president’s attention has been minimal in running the administrative agencies—essentially in supervising the cabinet secretaries in their administrative roles at their respective agencies. Such overseeing geared to specific regulations is, I submit, a function that presidents should attend to even more than proposing policies for Congress to enact. In other words, presidents should resist the sensationalistic allure of forming and publicly and privately “selling” policies or ideas for new programs to the extent that the time and effort of a president is monopolized thereby such that functioning as head of the executive branch, which implements law, is slighted. It could even be argued that the latter function should be primary. Were it in fact primary, then Loper would indeed be capable of redressing the historical trend of the imperial presidency to some extent because taking an active role at the regulatory stage would be a significant part of the actual power exercised by presidents. As of 2024 at least, Loper did not really touch the problem of the imperial presidency increasingly compromising the balance of power between the three branches of the U.S.’s federal government.

If democracy is ever at risk in the U.S., it would likely succumb to the hubris of an imperial president rather than to lawmakers in Congress writing laws with more specificity or judges overruling regulatory rulings. According to General Haig, President Nixon considered sending military forces to the Capitol to stave off impeachment during Watergate. Decades later, in December, 2023, protestors of the Congressional counting of the presidential votes of the states’ electoral colleges headed over to the Capitol from President Trump’s rally at the White House and successfully delayed the counting. On the very same day as its Loper decision, the U.S. Supreme Court handed down a ruling on another case—a decision that “limited the power of prosecutors to pursue obstruction charges” against the January 6th protesters at the Capitol.[3] To the extent that that ruling could enhance the imperial presidency itself, June 28, 2024 at the Court may actually have been a net-gain for the presidency.

1. John Fritze, “Supreme Court Overturns 1984 Chevron Precedent, Curbing Power of Federal Government,” CNN.com, June 28, 2024 (accessed June 29, 2024).
2. Ibid.
3. John Fritze et al, “Takeaways from the Supreme Court’s Decision on January 6 Charges and What It Means for Donald Trump,” CNN.com, June 28, 2024 (accessed June 29, 2024).

Monday, June 24, 2024

On the E.U.’s Principle of Unanimity: The Case of Hungary

As of 2024, enlargement policy, foreign affairs, taxation, and the budget was “bound by the principle of unanimity,” which means that each state government has a veto in the European Council.[1] With 27 states, the E.U. could in effect be held hostage quite easily. Even in the context of the Russian invasion of Ukraine, the state of Hungary was blocking €55 billion in E.U. aid to Ukraine as of June 24, 2024, although revenue from frozen Russian financial assets in the E.U. could be used (because Hungary had not participated in the G7 decision) and Hungary had just reversed its veto against further sanctions against Russia. However, the €1.4 billion from the investment revenue pales in comparison and sanctions do not deliver desperately needed military hardware to the besieged country.

That Hungary’s de facto pro-Russian stance in E.U. foreign policy was contrary to the interest of the E.U. as a whole can be discerned from S&P Global’s report at the time, which states, “The geopolitical conflicts in the Middle East and Ukraine remain the main risks weighing on our immediate economic outlook.”[2] That the E.U. could ill-afford these foreign geopolitical headwinds economically is clear also from the report, which also claims “that European financial markets are too fragmented, too national, too expensive for issuers and for retail investors.”[3] The report then recommends that capital markets be federalized. What could stand in the way of that is the same residual problem underlying the antiquated principle of unanimity: namely, states’ rights, or, in European parlance, Euroskepticism, which in turn is rooted in nationalism ideology. That in turn had been responsible for so much war in the twentieth century. Indeed, the main rationale of the Shuman Plan in the wake of World War II had been to stave off another war. The European Coal and Steel Cooperative was intended to keep an eye on possible German re-militarization. Whether intentionally or de facto, the E.U. state of Hungary in 2024 was enabling Putin’s Russia and indirectly possibly increasing the risk of war within the E.U. by allowing Putin to divide the union.  

 That the E.U. had to go to the G7 decision to spend the revenue on frozen Russian funds in order to go around the opposition of Viktor Orban of Hungary is itself an indication that a “bug” was in the E.U.’s “software.” That János Bóka, Hungary’s Minister for European Affairs, “made it clear” that during Hungary’s presidency of the Council of Ministers during the second half of 2024, Hungary “would not help Kyiv open any of the 35 chapters that make up the six thematic clusters” of accession talks.[4] Instead, accession talks of Baltic states would be encouraged. Whether pro-Russian or anti-Ukrainian, the Hungarian state government’s use of its veto and temporary presidency of the Council on the federal level seems to put the interest of a part (of the union) above that of the whole.

That the E.U.’s supreme court, the European Court of Justice, had recently found the state of Hungary guilty of violating the E.U.’s basic law and ordered a significant fine be taken from the state’s allocation of federal money may be a factor in the active use of the state’s veto. At the very least, being fined by the E.U. put the state government in a conflict of interest in obstructing federal foreign policy. This is yet another reason why the E.U. could not afford the principle of unanimity. More bad news. Unfortunately, even efforts to correct this problem are fraught with a conflict of interest, as state governments would have to agree to give up the power they enjoy under the principle. Even if retiring the principle is in the interest of the whole (i.e., the E.U.), the political interests of the parts are not likely to subordinate their respective interests even for the good of the whole. Future enlargement of the union (which is not a “bloc” because the union is permanent and based in law) would most likely exacerbate the problems ensuing from putting the interest of a part, or the parts, above the good of the whole. And as argued above, belligerent foreign actors, such as Putin of Russia, could easily exploit this fundamental flaw in the E.U. for their own interests.

Who, therefore, is there to stand up for the E.U.’s interest? Perhaps as E.U. citizens, rather than the states, elect the representatives of the European Parliament, the way out of this pretzel may be to transfer some of the Council’s power to the Parliament, or at least to give the latter chamber more power as a check against excesses by state officials acting in the Council, including the Council’s presidency. That is to say, perhaps the conflicts of interest and the over-heavy interests of the parts at the expense of the whole in the E.U. are indicative of a need for a shift in power not only from the states to the union, but also within the union’s government itself.

On the U.S. Government’s Budget Deficits and Debt: American Democracy Unhinged

It is true that a government’s budget can be read as a blueprint of priorities in terms of what is valued, and what is not so highly valued. The blueprint itself, as a whole, also evinces a priority in terms of values. As the big-ticket items, such as large spending categories and massive tax-cuts, get the most attention, whether a budget is in balance can go by the wayside, and what that says about the electorate (and thus the state of democracy) can easily be missed. Ultimately, public policy and even the votes of the elected representatives point back to the popular sovereign, the People—more specifically, the electorate, and its values. By 2024, the deficit and accumulated debt of the U.S. Government had reached such gigantic numbers that something could be said to be amiss concerning those values. The underlying culprit, which can be said to be an illness that is human, all too human, had by then infected American democracy beyond the wherewithal of virtually any elected federal representative to enunciate well enough that the electorate could look clearly at itself, and thus size itself up beyond the partial diagnoses that can be found in partisan attacks.

In late June, 2024, the (nonpartisan) Congressional Budget Office forecasted a $2 trillion deficit for the year, up from an earlier estimate of $1.6 trillion.[1] At the time, the federal accumulated debt stood at $34 trillion. Whereas in the 1970s, the debt as a percent of GNP was in the low 30s, the percentage for 2023 stood at just over 120 percent. Clearly, the trajectory of deficits and debt was disproportionate even on a percentage basis. Furthermore, interest payments made by the U.S. Government, which the CBO director said were “large by historical standards,”[2] were poised to exceed the entire defense budget in 2024; and that recipients of interest-bearing bonds tend to be on the wealthy side, whereas the poor and middle-class pay taxes, the ballooning debt could be viewed as an engine of wealth-transfer from the poor to the rich via the U.S. Government, hence increasing economic inequality as an indirect effect of fiscal public policy. In short, something systemic was out of balance, with ethical implications.

Blaming large ticket items (i.e., federal spending) provides us with an easy target but only gets at a symptom. Regarding the 2024 fiscal year, the Congressional Budget Office pointed to the $145 billion cost of the President’s changes to student loans and the $95 billion foreign aid for Ukraine, Israel, and Taiwan enacted in April as the two largest factors.[3] Almost a trillion dollars for three countries. Healthcare costs came in third.

To be sure, the changes in student-loan policy under President Biden were in large part due to the spurious vocational claims of for-profit “universities and feckless accrediting agencies, with unemployed former students as the victims. The foreign-aid spending was associated with foreign policy objectives—holding back Russia and sending a message that military aggression (by Russia) is no longer acceptable in the 21st century being foremost. In short, both deficit-growing factors were oriented to protecting victims, and thus could be justified ethically. Increased public health-insurance costs too can be justified ethically, given the value of health irrespective of income and wealth.

Even lofty goals come with costs, however, which may not be affordable. A sovereign government with the authority to “print money” need not be constrained by what it can afford, absent constitutional language mandating a balanced budget. Of course, spending is only half of the deficit equation; taxation being the other. That spending had been outstripping revenue since the Clinton administration can be traced back to the Reagan tax cuts. Regarding the deficit in 2024, the Trump tax cuts should also be remembered. Moreover, the refusal of Congresses and presidents to raise taxes to cover increases in spending when the economy is fine or (especially) good is also a factor in how the U.S. Government’s debt got to $34 trillion.

Both the proclivity to increase government spending and the reluctance to increase taxes (or defeat tax-cut proposals) leads us directly “under the hood” to popular sovereignty: Government by the People. That is to say, the American electorate is ultimately to blame for not electing representatives, senators, and presidents who resist the twin temptations. To be sure, differing political ideologies on the proper size of government, and, more specifically, the federal government, are also legitimate in voting decisions.

A believer in a small federal government, harkening back to Thomas Jefferson, might vote for candidates in favor of tax cuts in order to “starve” the federal government. But this strategy ignores the unlimited ability of that government to enact spending bills. A “small government” ideology should go after spending and taxes with enough tax revenue over spending in the out years to pay off the accumulated debt.

A believer in a large federal government (in absolute terms and relative to those of the states) has no problem resisting tax-cut proposals; it is the notion that a government can or should grow by increased spending, especially without increased taxation to cover both the additional spending and to pay off the accumulated debt, that is problematic.

In the 1980s and early 1990s, the U.S. deficits (and debt) were significant in political discourse. David Stockton, President Reagan’s head of the OMB (Office of Management and Budget), wrote The Triumph of Politics to explain why Reagan failed to bring down the deficit numbers. The imbalance was in the public’s aversion to cutting domestic spending, Reagan’s increase in defense spending, and the president’s tax-cuts. In terms of the American electorate, the desire for immediate consumption, which includes tax-cuts, combined with the lack of responsibility can be cited as the ultimate source of the imbalance that may be inherent in democracy itself.

It is significant that Thomas Jefferson and John Adams agreed long after they were out of the political arena that a viable republic requires an educated and virtuous citizenry. Put another way, self-government requires a sense of responsibility in terms of fiscal governance. That the debt of the U.S. Government had been allowed to reach $34 trillion by 2024 can be interpreted as a verdict, or an x-ray, on just how fit the American electorate had been to govern itself through its chosen representatives. The real threat to American democracy lies within. The threat, in fact, by 2024 may have become much more serious than even that of unbalanced fiscal policy.  For the proverbial invisible “elephant in the room” may no longer have merely been the failure of the American electorate to exercise its popular sovereignty with fiscal responsibility on governmental taxation and spending: the rising unexamined question may ironically have already relegated fiscal responsibility altogether in silently asking whether $34 trillion ever gets paid off. Like an insect whose legs are still twitching even though it is already dead, the U.S. Government may have already been effectively bankrupt without anyone realizing it. If this was already de facto the case by 2024, then the damning verdict, not seen yet in plain sight, would be on another level entirely. 

1. Jennifer Scholtes, “$2T in Red Ink: Foreign Aid, Biden’s Student Loan Policies Hike U.S. Deficit Forecast,” Politico, June 18, 2024 (accessed June 22, 2024).
2. Ibid.
3. Ibid.

Friday, June 21, 2024

E.U. Political Parties

Following the E.U. 2024 election, political parties jostled for members in the Parliament. Whereas the political duopoly of parties in the U.S. House of Representatives severely limits such skipping around, the European analogue puts more of an emphasis on party management in terms of weighing ideological or policy “purity” against the power that comes from size. In contrast, the two major parties in the U.S. must be content to be “big tents,” each of which contains groups. From the standpoint of the parties in the E.U. Parliament, the groups are at the state level. The defection of Andrej Babis and the rest of his group from the Renew Europe party just weeks after the E.U. election in June, 2024 demonstrates the distinct balancing task of the E.U. parties. Such balancing is not something that the American political duopoly of parties need do. I contend that the Americans could benefit by looking at the European case in this regard.

On the one hand, the departure of Babis’s group caused Renew Europe to go from 81 representatives to 74, further weakening its power in the federal legislative body. On the plus side, however, Valérie Hayer, Renew Europe’s head, observed of the departed representatives that “their divergence from our values” had “increased exponentially and we witnessed this with great concern.”[1] For his part, Babis pointed out, “We went to the European elections saying that we would fight against illegal migration, that we wanted to repeal the ban on internal combustion engines and fundamentally change the Green Deal. . . . Above all, we want the Czech Republic to remain a sovereign country.”[2] Although Babis’ claim that the Renew Europe party would not change its party platform on immigration and the Green Deal is correct, he could not very credibly blame the party because the Czech Republic had given up some of its sovereignty in becoming a state in the Union; qualified majority voting alone is part of that transfer, since Babis’ state could be on the losing side of a QMV in the European Council. Nevertheless, the ideological difference between Bibis’s group and the party on immigration and the Green Deal meant that the Renew Europe party would be more ideologically “tight” and thus powerful in that sense with the departure of Babis and his fellow MEPs, and they in turn could find another party closer to their views precisely because the Parliament contained several parties rather than just two. Hayer pointed to the impact on the party’s ideological position in saying that the departed MEPs’ “unwillingness to continue their commitment to liberal values has led to today’s outcome. They have turned their back to our firm pro-European convictions and values.”[3] More to the point, Hayer predicted that the party would be “more united.”[4]  Fewer members in the legislative body but more united: this is the trade-off that any party leadership in the E.U. Parliament had to balance in the post-election phrase of politics. I submit that this is a good thing.

A major benefit of the balancing act is that E.U. citizens going to the polls could more closely tailor their respective votes to their political positions or ideology than can U.S. citizens voting for members of the U.S. House. An American voter angry at the Israeli government, for example, did not have a choice of party opposing the military incursion into Gaza; both the Democratic and Republican parties supported Israel in 2024. In contrast, a European could vote for a party with a plank opposing military support for Israel. The drawback in the European case is in terms of political stability in the Parliament, but as even an increase in representatives in the parties on the right did not fundamentally alter the majority coalition of parties, the inertia of the status quo has considerable weight in maintaining stability even as multiple parties jostle for members while trying to stay true to specific values on the political spectrum. In other words, the fear of political instability from there being many parties in the Parliament is overstated.

Therefore, Americans could be less scared of deviating from the American duopoly of major parties, as if the credible advent of other parties being truly competitive would trigger seismic political instability. A recalibrated “cost-benefit” analysis of having a duopoly of just two major “big tents” could result in reforms in which voters would be better able to tailor their votes to their values and political positions without having to vote for whichever party is closer even if it isn’t really very close and may even have antipodal positions. The political-legal electoral architecture, or basic framework, that favors the duopoly would have to be fundamentally changed, and in a political culture of incrementalism, such a change is only possible but not probable. Even so, it doesn’t hurt to look to the E.U. for ideas. That is to say, the U.S. could learn a thing or two from the E.U.


1. Jorge Liboreiro, “E.U. Liberals Dealt a New Blow after Czechia’s Andrej Babis Pulls Out His Seven MEPs,” Euronews, June 21, 2024.
2. Ibid.
3. Ibid.
4. Ibid.

Wednesday, June 19, 2024

Nominating and Electing the President of the E.U.'s Commission

Before the office of president of the European Commission can be elected by the European Parliament by a simple majority, the European Council must nominate a candidate. The nomination is by qualified majority vote, in that at least 55% of the states must be in favor and the combined population of the states voting yes must be at least 65% of the total population of the European Union. Were any state represented in the Council to have a veto (i.e., unanimity being required), the infeasibility alone of getting a candidate nominated would be astounding and prohibitive for the Union and especially its executive branch, the Commission. Just imagine if every sitting state governor in the U.S. meeting as the Senate (which represents the states) had to sign off on a candidate for that union’s executive-branch president before the House of Representatives (which represents citizens) could elect the candidate by a simple majority! From this comparison, we might wonder whether the European Council should be tasked with nominating two candidates, whom the representatives in the Parliament would then vote on in electing the president of Union’s executive branch. After all, there is more than one candidate when the U.S. House of Representatives votes (by member state!) to elect the president if no candidate receives a majority of the votes of the states’ electoral colleges. Indeed, the E.U. is not the only federal union in which states have a significant role in electing the head of the (federal) executive branch. I contend that the members of parliament should have a choice of more than one candidate when voting for the president of the E.U.’s executive branch. This is as of June, 2024, when the European Council was busy coming up with a nominee; being able to present two nominees to the Parliament would have made the Council’s job easier and the Parliament’s voting more democratic.

With no decision on a nominee at the Council’s informal dinner on June 17, 2024, a meeting was set for June 27th to make another attempt, doubtless after ten days of horse-trading in private. With the European People’s Party having amassed the most seats of any party in the Parliament, that party was able to continue its coalition agreement with the Renew Europe party even though it had lost 20 seats compared to 2019. With the Green party and the Socialist party, the coalition could have 400-plus seats. The right-wing Identity and Democracy party and the European Conservatives and Reformists party gained members, though not as many as expected, so the People’s Party did not have to reach out to those parties in putting together the governing coalition. Such a coalition was necessary because the EPP did not get a majority of the 720 seats. To be sure, political groups at the state level in some states, such as Le Pen’s group in France and the Alt group in Germany could feed into the right-wing parties in the Parliament and affect how they relate, and those parties in turn had the option of combining into one larger party to act as a united opposition to the grand coalition. However, the ID party’s efforts had not borne fruit as of the Council’s informal dinner.[1]

Rather than get consumed by the various mechanizations of the state-level groups, a matter of more importance on the federal level is that of how much of a say the federal-level parties represented in (and recognized by) the European Parliament that were not in the majority coalition should have in the nominating process.

At the informal dinner, a “raft of bilateral and trilateral meetings between the three main parties—the European People’s Party (EPP), the Socialists and the Liberals—helped bridge the gaps but became bogged down by the EPP’s maximalist demands.”[2] Those likely included the demand to split the term of the Council’s president to have an EPP person in for 2.5 years even as Von der Leyen, who wanted a second term as president of the Commission and was in the EPP, was likely to be nominated. That the parties on the right were left out of the discussions even though they had gained seats in the Parliament was not lost on Viktor Orbán of the E.U. state of Hungary, who said, “The will of the European people was ignored today in Brussels,” at the end of the meeting.[3] Those parties would have been justified in objecting to the “custom” whereby the candidate from the party of the most seats, the EPP in 2024, is supposed to be automatically “rubber-stamped” by the Council as its nominee; at least as of 2024, the Council had a free hand constitutionally (i.e., in terms of the E.U.’s basic law) in picking a nominee, as the Council is independent of the Parliament. On a basic level, the Council represents the states while the Parliament represents E.U. citizens (and residents). That the largest party in the Parliament should have its candidate automatically nominated by the Council also runs up against the separation between the legislative-branch Parliament and the executive-branch Commission.

Were the Council tasked with presenting at least two nominees to the Parliament, the nominating process would obviate (or eviscerate) the custom of rubber-stamping the wishes of the largest party in the Parliament. The E.U. parties on the right that were not included in the EPP’s majority-coalition could perhaps have seen a candidate representing the right compete with the other nominee at the election stage at the Parliament. Should the Council come up with more than two nominees in the future, then the Parliament could simply include a process of elimination feature in its voting process. Rather than risk the Parliament rejecting a sole nominee from the Council, which would bring the process back to the Council, and so further delay the selection, the Commission would not have to face the possibility of being without a head for so long. In the midst of the Russian military menace on the eastern flank of the E.U. in 2024, elongating the nominating and electing process would not be in the interest of the European Union.

As it stood in 2024, the nomination of just one candidate followed by a vote in the legislative lower house was more like the nomination by the U.S. president of one person to be a justice of the U.S. Supreme Court and the subsequent majority vote by the U.S. Senate than the way the U.S. House of Representatives elects the President if no candidate has received a majority of the combined electors of the states’ electoral colleges. I contend that the selection of the head of the E.U.’s executive branch should not be like that of a U.S. justice, for unlike the latter, the former is not supposed to be immune from politics. This is not to say that the dominant coalition of the Parliament, or the largest party, should have political control the President of the Commission. Rather, it is to say that democratic competition at the election stage of that president is fitting (whereas it wouldn’t be for selecting a justice). Comparing the E.U. and U.S. can thus be seen as a beneficial project for both unions as each seeks to be better as systems of public governance.

1. Jorge Liboreiro, “Analysis: Why Orbán, Meloni, and Fiala Are Angry about the E.U. Top Jobs,” Euronews, June 19, 2024.
2. Ibid.
3. Ibid.

Thursday, June 13, 2024

The European Court of Justice Slaps Down Hungary: A Defense of Modern Federalism

The European Court of Justice (ECJ), the E.U.’s supreme court, which like the U.S. counterpart can overrule state courts, ordered the E.U. state of Hungary to pay a lump sum of €200 million and €1 million per day of delay from June 12, 2024 because the state government had disregarded “the principle of sincere cooperation” between states in taking in their fair share of foreign asylum-seekers and “deliberately” evaded implementing the federal law that directs the states how to treat those people who enter the E.U. through the state seeking political asylum.[1] The state government had made it “virtually impossible” for asylum seekers to file applications.[2] Similar to the Nullification Acts passed by the state government of South Carolina in the U.S. when that union was between 30 and 40 years old, the decision of Hungary to ignore the ECJ’s ruling on the matter in 2020 could not be tolerated by federal authorities, for a federal system of dual sovereignty (i.e., some held at the federal level and the rest at the state level) cannot survive if state governments can unilaterally decide to nullify, or ignore federal law. That federal directives in the E.U. reply on implementation into law at the state level just makes the E.U. more vulnerable should a state government so easily dismiss federal law. Why even be in a union if its law is deemed not worthy of respect?

In their written opinion, the justices of the ECJ clearly understood that the problem of Hungary’s dismissiveness of the legitimacy of federal law within the state struck at the foundation of the union. “That conduct constitutes a serious threat to the unity of E.U. law, which has an extraordinarily serious impact both on private interests, particularly the interests of asylum seekers, and on the public interest,” the high court declared.[3] The problem being extraordinary for the E.U. as a federal system of public governance, the public interest being impacted certainly includes that of the union itself. It is necessary therefore to separate out the particular issue, that of political asylum and even immigration, and focus on the viability of the E.U. itself.

Any federal system will not long endure if state governments attempt to throw off problems onto other states. In fact, given the cultural heterogeneity that naturally exists in an empire-scale federation such as the E.U. and U.S., cooperation between the states directly as well as through federal institutions of government plays a vital role. Tensions that might tear such gigantic unions apart need to be offset by cooperation; the last thing such a union needs is political infighting between the states and even just one state that presumes not to be subject to federal law. For such a union to lack enforcement power even in regard to its own competencies (E.U.), or enumerated powers (U.S.) is a sure recipe for collapse and the epitome, moreover, of weakness. So, the ECJ justices acted wisely in automatically taking Hungary’s fine out of its share of largess from the E.U. budget.

For its part, the state government of Hungary could have taken the opportunity to definitely decide whether to accept the validity of E.U. law as applicable even for the state governments, or secede from the union as the British did after they finally came to a decision rejecting the dual-sovereignty, which distinguishes (early) modern federalism from what is now called confederalism. A common expression in English comes to mind: that of, “shit or get off the pot.” Translated, this means, “use the toilette or get up, rather than procrastinate on it all day.” Muddling the difference by staying in the Union and yet mislabeling it as a “bloc” or a “network” rather than a federal system of government, and the European Parliament’s political parties (even the EPP!) as mere “groupings,” as if that legislative body were not a real legislature and political parties could only exist at the state level, only puts the E.U.’s self-understanding at odds with what the Union actually is, and such a lack of self-understanding can never be good for anything (or anyone).[4] A fish would not long live if it comes to believe that it is a frog. A house divided is bad enough; a house that comes to be viewed as a mere tool shed is in even worse shape.

Even though some healthy degree of anti-federalism is a good means of forestalling (i.e., by acting as a check politically and even in the basic or constitutional law itself) the kind of federal consolidation that has occurred in the U.S. since 1865 (i.e., the anti-federalists had been right), knowingly pretending with ill-suited words that a federal union of states is something else altogether whose nature, superimposed, weakens the union by denying what it is empirically is needlessly destructive and utterly dishonest intellectually. Engaging in word-games to obfuscate the public’s understanding of the very nature of the E.U. really only demonstrates the cognitively distortive propensity of ideology (i.e., its susceptibility to delusion from pride and resentment). Journalists and their editors generally have been easy, unthinking tools in that political game of perpetuating an illusion as if it were empirically extant and a fact of reason. What then of the perpetual peace, which old Kant saw as only possible rather than probable if there were a world federation, if a federal system just in Europe cannot even be consistently recognized as federal government rather than as something else entirely that is weaker in providing for public governance?  

1. Jorge Liboreiro, “ECJ Finds Hungary with €200 Million over ‘Extremely Serious’ Breach of E.U. Asylum Law,” Euronews.com, June 12, 2024 (accessed June 13, 2024).
2. Ibid.
3. Ibid, italics added for emphasis.
4. I am in the midst of translating a 17th century text from French, and I think the tiresomely long sentences are rubbing off on me. At least I’m not compounding the problem by inserting colons and semicolons throughout such a train of thought. Regarding the EPP, the European People’s Party, which is a political party in the European Parliament, a journalist at the time even parroted (not quoting) a Euroskeptic by dutifully writing, “the European People’s Party group” in an article published online by Euronews. Stating the obvious, I feel the instinctual need nonetheless to point out that “party” is in the very name of the party and thus it is, and understands itself as, a political party. Perhaps “group” should be used to designate the smaller parties at the state level, as more than one of such groups can feed into one of the larger federal parties by means of the elected representatives in the federal parliament—such groups themselves not being recognized there. Such a reversal would doubtless not be tolerated for long! Even so, by engaging in such a reversal, the hypocrisy of the status quo may be better known.

Saturday, June 1, 2024

The E.U.: Pulled in Two Directions

European integration has proceeded in fits and starts since Robert Shuman proposed the European Coal and Steel Cooperative in 1950 so Europe could keep an eye on Germany’s military in the wake of World War II. Euroatom and the European Economic Community came in 1957, and the EC, which consisted of the three organizations, existed until 1993. Since then, the European Union too has progressed step-wise, with some steps backwards, such as when Britain seceded from the Union. Whereas the U.S. made the leap from a supranational alliance, the Articles of Confederation, to a federal government all at once in 1789, the way of the E.U. in terms of dual sovereignty and adding states has been incremental. Perhaps throughout its 31 year history, as of its federal election in 2024, the E.U. was being pulled in two directions. Some forces have led the E.U. to gain competencies over time, whereas other forces could be described as “states’ rights,” anti-federalist, or Euroskeptic tendencies. If dominant, those forces would ultimately lead to the dissolution of the federal union, whereas the former forces would lead to its consolidation. After thirty years, the U.S. too was more subject to the centripetal forces than those for ever closer union. From the subsequent history of the U.S., it is perfectly legitimate to ask whether the E.U. too will lean so close too to political (and economic) consolidation too by the time that union is over 200 years old. Like Europeans today, the Americans of the 1820s would never have dreamed that the federal level would be so dominate over the states, which were still regarded as countries.  

That more sovereignty to go to the E.U. on defense was being debated in the weeks before the E.U. election in 2024, with the E.U.’s People’s Party, a proponent of the E.U. defense being expanded to include air defense, being projected to win in the European Parliament, and Russia’s Putin still invading Ukraine and making threats against Europe, even the governments of the largest E.U. states were supporting the additional transfer of governmental sovereignty to the federal government in order to protect the E.U. from its eastern menace. It is significant that whereas the U.S. began as a military alliance of thirteen sovereign countries, the E.U.’s antecedents were economic in nature (even though the E.U.’s pillars extended beyond the economic domain). Even so, it could have been predicted in 1993 that the E.U. would eventually handle both defense and interstate commerce, as those are typically handled at the empire-level in empire-scale unions. This was so in the British Empire, for example, and the U.S. federal government inherited the imperial-level powers of the British king.

It is important to resist the easy conclusion that the E.U. was poised in 2024 to take a step towards ever closer union, for the E.U. was also subject to forces to the contrary. According to the Euronews Super Polls, one thing looked certain a week before the E.U. election: “after the 6-9 June elections, the European Parliament will have a clear right-wing majority.”[1] That majority would be keener on having the state governments get back some of the governmental functions (i.e., governmental sovereignty) that had been delegated to the federal government incrementally since 1993.

It is important to take account of the role of international forces on the two contending political forces in the E.U. that bear on its degree of integration. I have already alluded to Putin’s Russia as prompting concern by E.U. citizens for more federal competencies in defense (e.g., an air defense). The American government’s support of Israel as it continued to ignore and violate the “cease and desist” rulings of the UN’s top court, the International Court of Justice, was undoubtedly causing Europeans to question a global order in which the U.S. would continue to be relied on as the global “police.” European values in favor of international law would not be protected by relying on the Americans. The possibility of the former U.S. president, Don Trump, returning to office meant that an American administration could actually enable and even strengthen the positions of Putin of Russia and Netanyahu of Israel was not lost on E.U. citizens as they prepared to vote in early June, 2024. The E.U. not only being able to defend itself militarily but also have military sway in the global order could naturally result from these forces from abroad.

Going in the other direction, away from increasing E.U. competencies, or enumerated powers in Ameri-speak, the failure of the E.U. to handle the mass immigration from Africa was feeding into the increasing popularity of the “right-wing” European parties in the Parliament. How could the E.U. handle more exclusive competencies if it could not handle its existing functions? More to the point, stubborn anti-federalist, or “nationalist,” resistance to doing away with the veto in the European Council ironically fed the E.U.’s functional difficulties with its extant competencies. Just as the veto in the U.S.’s Articles of Confederation stymied the American Continental Army against the British Empire, so too the refusal of E.U. state governments to agree that more E.U. competencies must be decided by qualified-majority voting rather than unanimity has resulted in a less-than-functional federal government. In the wake of Israel’s refusal to abide by the verdicts of the International Court of Justice (even though the UN founded Israel!) for an immediate cessation of the invasion of Gaza, that the E.U. had to rely on state governments on whether to recognize Palestine is a real testament to the inutility of the veto at the federal level (e.g. in the Council of Ministers, as well as the European Council).[2] In words used for American basketball, the federal recognition of Palestine should have been “a slam dunk.” That it was not signals that something is very wrong with the E.U.’s federal system, and in particular with how decisions are taken at its federal level.

So, heading into their federal election in June, 2024, E.U. citizens were subject to conflicting forces, and thus to opposing political movements, some for and others against ever closer union. My point is that contending forces and questions of federal-level functionality have existed throughout the post-World War II period of European integration. Fits and starts, rather than all at once.  Even in the U.S., the shift from a system in which the state governments held most of the sovereignty to one in which the federal institutions do has been gradual. The difference is perhaps that Europeans do it piecemeal formally in terms of basic law, whereas the progression has been more by case law in the U.S. Essentially, this means that Europeans have had to decide on what Americans call constitutional amendments more often—amendments (i.e., changes to basic law) that are more significant for the federal system as a whole than the American amendments (after the Bill of Rights) have been. This is why the impact of contemporary international forces is so relevant to the E.U. as a still-changing federal system of dual sovereignty (i.e., not confederal, as in the Articles and the EC).

1. Sergio Cantone, “Super Poll Q&A: Is EU-Wide Conservative Coalition Losing Momentum?” Euronews.com, June 6, 2024.
2. Skip Worden, “Euroskeptic Federalism Obstructing the E.U.’s Recognition of Palestine,” The Worden Report: International Relations, May 27, 2024.

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