On 1 June, 2026, the E.U.’s
two legislative chambers agreed informally on text for a law called Return
Regulation, which is oriented to facilitating the return of illegal aliens to
their respective countries. Both The European Council, the “upper chamber,” and
the European Parliament, the “lower” legislative “chamber” (roughly
corresponding to the U.S. Senate and the U.S. House of Representatives,
respectively) worked in what in American parlance is called a Congressional reconciliation
or conference committee to agree to text enabling state police to enter the
domiciles of illegal immigrants and state governments to set up detention
centers outside of the European Union. That the federal law relegates implementation
to the states illustrates just how different E.U. federalism differs from U.S.
federalism even though both systems are “modern” rather than confederal in that
governmental sovereignty in both unions is split between the federal and state
levels. Even though the E.U. after thirty years was like the U.S. after its
first thirty years in that most of that sovereignty was at the state level, the
use of state governments to implement a federal law differentiates the European
federal system from the American one. Both advantages and disadvantages go with
leaving implementation largely up to the states.
Imagine if the American
Congress had passed a law leaving it up to the state governments to exercise “ICE”
enforcement powers to rid the Union of illegal immigrants. In U.S. President
Trump’s second term in office, Florida would jump at the chance, whereas states
such as Massachusetts, Illinois, and California would refuse to implement the
federal law. It would not be difficult to surmise how illegal aliens would work
around such a patchwork, at least those with enough money to move to a more
preferential state. As a result, the federal rationale—that of eliminating
illegal immigrants from U.S. soil—would be compromised. However, the differing
political-ideological centers-of-gravity in the several states would get more
breathing room, and in empire-scale political unions such as the U.S. and E.U.,
one legislative size does not fit all. When one is imposed, internal pressure
builds up that could eventually blow such a union apart.
Even in the E.U., in which the
new law reflected “a broader political shift . . . sometimes backed by the far
right . . . pushing for a tougher approach to migration,” states could be said
to differ as to the political significance of the far right.[1]
Some state governments may for example not find much internal political support
for a state law that enables police to search a “place of residence or other
relevant premises” of illegal migrants, especially as some NGOs
(non-governmental organizations) compared “to the notorious raids conducted by
the US Immigration and Customs Enforcement (ICE).”[2]
It is not as if the two federal legislative chambers passed the federal law
under the assumption that it would be strenuously implemented by every state. “The
provision is vague on purpose, to allow a broad interpretation in the different
member states. It opens the doors to home raids and also raids in the premises
of associations helping migrants and healthcare facilities,” Eleonora Celoria with
Asgi, a state-level association of legal experts said at the time of the law’s
passage.[3]
Celoria’s depiction of the implications highlight just how politically and
ethically controversial the law is, and this, I submit, is precisely why the
provision is vague on purpose. States could be anticipated to differ on
how the law should be implemented “on the ground.” Even though the maximum
legal detention period for illegal immigrants waiting to be expatriated back to
their respective countries is “extended from six months to two years, with a possible
six-month extension and an unlimited duration for persons considered as posing
a security risk,” clearly not every state legislature would go with the maximus.
The comment made by MEP Mélissa Camara (of the European Parliament) that the
legislative text serves “a xenophobic ideology” may resonate more in some states
than in others.[4] Hence,
the E.U.’s federal system could be said to be healthier than its U.S. counterpart
at the time (2026) because the E.U states were legislatively given more
breathing room in which to tailor the federal law according to their respective
political cultures.
The astute reader may be
waiting for “the other shoe to drop,” meaning: what’s the catch? According to
E.U. figures, “only 29% of migrants with no legal right to remain” in the E.U “leave
the EU.”[5]
Illegals were a big problem facing the Union, and leaving enforcement up to
whether a given state government favors the proposed legislative text risks
creating a legal loophole wherein illegal migrants could simply move to another
state where enforcement is lax or utterly lacking. The intentional vagueness in
the legislative text makes even no enforcement possible. In California at the
time, I was surprised to see a sign outside a popular pizza restaurant indicating
that the workers reserved the right to refuse service and entry to ICE
police, as if enforcement of U.S. immigration law were up to restaurant
workers. Were such law up to the government of California, given the high
proportion of registered Democrats over Republicans, it is a safe bet that no
enforcement could be passed by the California Senate and Assembly. Contrast
this with states such as Oklahoma, Alabama, and Florida! I would even venture
to posit that the ideological distance on the issue of illegal immigration
between those three states and California is more than existed at the time
between E.U. states on the same issue: how, or even whether, illegal
immigration should be expunged.
Perhaps my thesis can be
generalized to say that giving states in an empire-scale union enough breathing
room is inversely related to efficacy at the federal, or Union level.
Federalism is a messy business in part because judgment is requisite; there are
few easy answers in how to navigate the common good (of the political union) while
seeing to it that the states have enough breathing room so their respective
residents do not feel suffocated by a one-size-fits-all federal mentality.
In other words, modern federalism, whose signature attribute is dual
sovereignty, can be said to involve a balancing act. As of 2026, it could be
said that the E.U. was doing a better job at that than was the U.S., but at
what cost in terms of the interests of the European Union as a whole, which is
not a mere aggregate of state interests? This is a dynamic unique to the
empire-level, so it does not pertain to E.U. states that have adopted federal
systems of their own. No large U.S. states are themselves federal, though in a
nod to the Europeans such a prospect is worth entertaining. Even so, the heterogeneity
across an empire of 27 or 50 republics dwarfs that which exists even within a
large E.U. or U.S. state. This is yet another reason why the E.U. and U.S.
should be compared and contrasted, rather than treating a large state in one union
as equivalent to the other union. In other words, the U.S. is not a France with
a large back yard that stretches across a continent and beyond. Within such an
expanse of land, views on immigration can be expected to vary markedly from
state to state.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
