Strengthening the E.U.’s Border Competency: Implications for Federalism

In politics, it’s not a bad idea to consider the impact on the system of government in formulating, voting on, and enacting laws and regulations. It is not enough to make sure that relationships with political donors are not impaired. Nor, in a federal system, is it enough to look at the implications regarding either the state or the federal level. I contend that the implications for the federal system itself should be formally and informally considered.

In the context of the E.U.’s difficulty with securing its borders even after facing unprecedented migrants entering by boat or even walking in the early 2020s, it is understandable that representatives elected by E.U. citizens and sitting in the European Parliament would try to shore up a federal response, given that in the last quarter of 2024, some state officials took action at state borders in violation of E.U. law. Undercutting federal rule-of-law is a good way to trigger a collapse of a federal system, especially one that had only existed for decades rather than centuries.

On October 23, 2024, the European People’s Party joined the Patriots for Europe, the European Conservatives and Reformists, and the ESN parties in voting in favor of an amendment that goes as follows: “The European Parliament demands appropriate funding for external physical barriers at the Union border.”[1] In other words, the far-right parties wanted a wall at the border. Although the amendment passed with 329 of the elected representatives voting for it, the resolution to which the amendment was attached was later voted down. Victor Negrescu of the S&D party told reporters that a resolution is not necessary for the Parliament to be able to negotiation with the Council on what projects to fund. Tomas Tobé, vice chair of the European People’s Party, countered that because “it is our long-standing policy to advocate for E.U. funding for external border infrastructure,” it is “also in line with the position of the European Council: physical barriers are essential for securing the E.U.’s external borders and managing migration policy.”[2] At the very least, formally letting the Council know the will of the Parliament wouldn’t hurt.

It did hurt the coalition of parties that supported President Von der Leyen’s reelection as President of the E.U.’s executive branch, the Commission, for members of the Renew Europe party could have seen the European People’s Party as betraying the centrist governing coalition in the Parliament by joining the far-right parties there in support of building a wall. But such grumblings may have been overdone, as it was still very unlikely that the EPP would join with the parties on the right on much else, given the daylight between them and the EPP.

Moreover, the resolution served an overriding positive role in fortifying the E.U. itself in regard to its federal system. For it had been a failing policy at the federal level that had prompted more than one state government to exploit the “national emergency” loophole in the Schengen Agreement by patrolling state land-border crossings. In other words, showing signs that the federal government might finally competently secure the E.U.’s borders might get the state violators of Schengen to back off and follow rather than violate the Agreement. The E.U. had only existed for just over thirty years; its federal system was still fluid and thus vulnerable to punctures by state officials heeding popular pressure at home. From abroad, that looks like self-inflicted wounds within the European Union. To some officials of some of the states, most notably Hungary and Slovenia, the Commission may seem to be foreign, but this is not so in state-federal relations within a federal system. For such a system to be viable beyond the short term, the two systems of government—that at the union level and those at the state level—cannot be working against each other without even respecting each other’s laws.

Especially in a new federal system, government officials at both levels would be wise, if they want to continue to get the benefits from the combined power on the world stage, to consider the implications on the federal system itself from any policy proposal or vote. Even as of 2024, European integration politically and economically was not a foregone conclusion. Even though the E.U. had managed by fits and starts rather than in a linear line toward a more perfect union, the threat to the viability of E.U. law, including directives and regulations, was increasing in 2024.

State governments ignoring federal law is an existential threat to any union of states, which is politically distinct from a mere military alliance or trade “bloc,” such as BRICS. Willfully violating federal law could represent more than just a temporary slippage back before bouncing forward again, especially if a few such occurrences gain traction and thus become a de facto norm. Then the de jure federal system is really in trouble, with collapse being even imminent. The category mistake of viewing a federal system in which governmental sovereignty has been divided (i.e., “dual sovereignty”) as an alliance or even worse as a trading association, or “bloc,” can give rise to such destructive opportunistic violations of federal rules, directives, and regulations (i.e., federal law) because they are not viewed as real law. Similarly, the Euroskeptic ideological "word-game" wherein political parties at the federal level are merely "groups" subtly undermines the legitimacy of E.U. law and democracy at the federal level. 

Voting for stronger federal action at the federal borders may have had the effect of reassuring nervous state officials enough that they might return to supporting rather than violating the strictures that hold the Union together. At the time, it could hardly be said with confidence that the E.U. itself would continue as a going concern, so much long-term benefit could be gained by governmental officals at both levels asking themselves how their proposals and actions could impact the federal system itself. 

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1. Vincenzo Genovese and Paula Soler, “EPP and Far Right MEPs Call to Build a Wall at the E.U. Border, Stoking Controversy,” Euronews.com, October 23, 2024.
2. Ibid.

American Federalism: The Case of Coronavirus

On March 22, 2020, during a press conference on the coronavirus, U.S. Vice President Pence claimed that the United States is unique in that it has a federal system of public governance. He overlooked the equivalent case of the European Union even as he stressed an idea that is the European federal principle of subsidiarity, which means that decisions and actions that can be taken locally are to be done locally. The state level is next, followed by the federal level. The theory behind this principle is that cultural, political, economic, and social diversity that exists from state to state, especially in an empire-scale federal system such as the E.U. and U.S., means that one-size-fits-all federal-level decisions may not be effective everywhere. Pence’s point was that the federal government would be playing a supportive role so the States get what they need, rather than playing a pivotal role with the States and localities as instruments of implementation. I contend that relative to the European Union, the United States was at the time much less equipped to apply the principle of subsidiarity to the coronavirus pandemic.

At the time of the press conference, Washington, New York, and California were the “hot spots” wherein the virus was relatively pronounced. Even though the European Union had not only closed its borders, it had also allowed states including Italy, France, and Germany—the E.U.’s “hot-spots”—to close their respective borders. Lest it be objected that their American counterparts could not close their borders practically and even constitutionally, this point suggests that the American federal system had not taken sufficient account of subsidiarity even in the constitutional design. Put another way, a sitting vice president emphasized the principle even as it has insufficiently incorporated into statute and constitutional/basic law. The implication is that the constitution was flawed or deficient.

The E.U. demonstrates that a federal system can indeed take subsidiarity into account. Even as the E.U. itself had its federal borders at the time, its states could maintain their own even though most of those borders were open. The case of the virus in 2020 shows that in an emergency, federal officials, together with state officials, could suspend the open-border law.

To be sure, the American states were not completely without authority to protect themselves as suited their particular circumstances. The government of California, for instance, put its 40 million residents on lock-down, whereas Arizona, a neighboring state, did not (as of March 22^, 2020) because that state was not then a “hot-spot.” This is indeed a valuable benefit of federalism. Especially at the empire-scale (i.e., wherein the states are the size of fully-sovereign, or unfederalized, states, governmental measures in “hot-spot” states would not fit, and indeed could be bad for, states in which the virus was present in a big way. In short, the principle of subsidiarity was present in the American Constitution.

Unfortunately, it is also evident that the principle was not sufficiently in the American Constitution because the States should have been able to close their respective borders within the U.S. to reduce people entering with the virus and slow down the spread of the virus into other states. A basis for such state authority on an emergency basis could be that under normal circumstances, California could stop entering vehicles to search for plants. Thus, border stations already existed. Constitutionally, perhaps California’s rationale of keeping agricultural pests out could be broadened to give the state governments authority to close their respective borders under emergency circumstances such as a pandemic.

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.

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

[2] Ibid.

Migrants Overwhelming Europe: Unfairness Impeding the E.U.

More than 100,000 migrants, many of them refugees from conflicts in the Middle East and Africa, entered Hungary from January to August 2015, the vast majority en route to the more affluent northwestern E.U. states. A record 50,000, many of them Syrians, reached Greece by boat from Turkey in July alone. Meanwhile, Hungary was building a fence along the state’s border with Serbia, where 8,000 migrants were staying in parks, to keep more migrants from entering.[1] 

I contend that the disproportionate power of the state governments relative to that of the federal government accounts in part for the difficulty that the E.U. has faced in coming to grips with the tremendous influx. This case suggests why redressing the imbalance in the federal system has been plagued with difficulty.

At the time, Jean-Claude Juncker, president of the E.U. Commission—the federal executive branch—criticized state officials for “finger pointing” instead of coming up with viable public policies. He deputy, Frans Timmermans, said in an interview, “Europe has failed. Europe has to get moving. . . . So far, many member states have thought they can go it alone. That doesn’t work. We have to do it together.”[2] In other words, leaving the problem to the states was not working, yet something was impeding united action. I submit that the want of sufficient competencies (i.e., enumerated powers) at the federal level was the main obstacle.

Police disperse migrants at a registration place in Kos, Greece. Should the E.U. leave it to the state governments to handle the crisis? (Yorgos Karahalis/AP)

To be sure, for the E.U.’s general government to warrant additional competencies, it’s governmental machinery must be viewed as fair—that is to say, impartial regarding the various states. In taking sides in favor of creditor states as Greeks were heading to the polls to vote on a referendum in July on whether to accept additional austerity as part of a proposed debt “bailout,” E.U. officials compromised the legitimacy of their respective institutions, and thus of the federal government itself.

The unfairness may have manifested as well in the case of border protection funds. Hungary’s prime minister, Vikto Orban, claimed, “The European Union distributes border protection funds in a humiliating way.”[3] More power states to the west had been able to take the money from the eastern states. He went on to say that the E.U. institutions had failed to offer a coherent solution. I submit that the perception of unfairness and the failure to come up with a viable solution are linked, for granting institutions thought to be unfair additional authority is understandably difficult for the state governments on the “outside.” In other words, to the extent that E.U. institutions are pliable enough to be manipulated by the wealthiest, most powerful states, efforts to move toward a state-federal balance-of-power will face resistance.

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[1] Reuters, “As Migrants Head North, Hungary Decries ‘Humiliating’ EU Policy,” The World Post, August 25, 2015.

[2] Ibid.

[3] Ibid.