The ECJ Castigates the Commission for Paying Off Hungary

In an opinion submitted to the European Court of Justice, which tends to follow the legal opinions the 11 Advocates General, Tamara Capeta recommended in February, 2026 to the Court that it “should annul the European Commission’s 2023 decision to disburse €10.2 billion” to the E.U. state of Hungary.[1] Capeta found that the state government had not sufficiently addressed “concerns over systemic corruption and rule of law violations” to qualify for the payment.[2] That the Commission released the payment nonetheless points to corruption at the federal level—in its executive branch in particular—and this charge against the Von der Leyen administration renders the charge against the Hungarian government rather ironic. Rule of law should apply (and be respected!) at both the federal and state levels for the E.U. to continue to be viable. This applies especially to the Commission, as it is tasked with enforcing E.U. laws, directives, and regulations as well as treaty obligations that the EU, including its state governments, have to other countries, whether they are federal unions (e.g., the U.S.) or independent states.  

The Commission’s decision to reverse itself on the payment “came just days before a crucial December 2023 EU summit, where Hungarian Prime Minister Viktor Orbán threatened to veto a €50 billion aid package for Ukraine and block the start of EU accession with Kyiv.”[3] At the European Council’s meeting, “Orbán left the room for a coffee break, allowing the other 26 E.U. [states] to approve the accession talks.”[4] At “an extraordinary” Council session in February 2024, “Hungary lifted its veto on the €50 billion Ukraine support package.”[5] Some representatives in the E.U.’s parliament “suspected the E.U. [had] struck a deal with Hungary, trading unfrozen funds for Orbán’s withdrawal of his veto” even though the Commission “denied any such agreement was made.”[6] Given Orbán’s twice reversal after his state government had just received the suddenly unfrozen funds from the Commission, its denial strains credulity at best, and more realistically actually confirms the charge of sordid dealings in the Commission at the expense of E.U. law.

It is harmful enough to the federal union when a state government violates E.U. law, especially with impunity; for a federal-level governmental institution to shirk federal law says in effect that the E.U. does not respect its own law (so why then should state officials respect it?). Presumably either the Commission and/or one or more of the states could have made a deal with Orbán that did not involve violating E.U. rule-of-law.

Moreover, occasioning the unlawful deal is the staying power of the principle of unanimity in the European Council and the Council of the EU. A minimum of nine states was at the time sufficient for the federal program of “enhanced cooperation” to be invoked, in which case blocs of states could move forward in being subject to a federal law or regulation even though one or more state would still be in opposition but not to be subject to the law. Of course, this program could not apply to votes on whether to annex another state to the Union, and to decisions on whether to spend E.U. funds on other countries, including Ukraine because on such matters, the E.U. itself must either act as one or not act. So a so-called “multiple-speed” E.U. is not a complete answer to the basic problem of applying the principle of unanimity to 27 (and potentially more!) states.

Rather than relying primarily on its state governments for defense and even foreign policy, the E.U. could look to the U.S., which has both a federal military and state armies (called militias). That the federal president can temporarily call upon such armies even if their respective state presidents refuse does not mean that those armies are federal. Such an arrangement, which the E.U. did not have at least as of 2026, is consistent with the underlying dual-sovereignty of both the federal and state governments (or, for the ideologically squeamish, governmental institutions). The augmented federal powers would need to be decided by qualified-majority voting in the Councils that represent the state governments at the federal level; otherwise, no such partial transfer of governmental sovereignty could take place. Being politically unwilling to “step up to the (baseball) plate and bat,” federal and state officials should not collude in deal-making in ways that violate federal laws, lest the Union itself head down a slope wherein federal law has no force. This is especially of value in a world in which military aggressors such as Russia and Israel were wantonly violating international law with impunity; E.U. and U.S. jurisprudence, which is not international, and the corresponding duties at both federal and state levels of government, is not as self-evidently strong as Europeans and Americans may have been assuming in as invasions and genocides elsewhere were going on with impunity internationally.

On a visit to Florida at the time, I was shocked at the extent of brazen refusals by police employees of at least two cities to enforce criminal law—some employees even denying the existence of whole statutes, and the subordinates’ respective managers refused to hold those employees accountable. I was so stunned by the sheer brazenness of the lies that I decided not to move to that U.S. state. The rule of law cannot be assumed as though it castigates sordid personal discretion automatically; rather, law depends on humans to enforce it with integrity. This is why the international “laws” that Putin and Netanyahu were able to violate with such violence for years may not even count as law, for the enforcement-mechanism was entirely lacking de jure et de facto. “Law” without this cannot be counted as law.

The obligation of government officials to recognize and enforce rather than deny the very existence statutory law should be a given. It follows that federal officials in the Commission should not have been permitted to ignore the relevant federal law when it became an obstacle to making political deals with Hungarian state officials. If getting those state officials on board with a political priority of the Commission was so important, then the Commission could alternatively have pressured the states to reduce or end outright the application of the principle of unanimity in the two federal councils that represent state officials directly at the federal level, at least with respect to foreign policy and defense and even on the matter of “enlargement” (i.e., annexing future states). If qualified-majority is too low, then perhaps 75% of the states could be used as a benchmark for such very important policy decisions. The QMV-unanimity distinction is a false dichotomy, given the daylight available between the two voting methods. If one state can hold an entire Union back, then something is wrong with that federal system, and violating federal law to get around that problem is at best a short-sighted, expedient solution. In other words, the E.U.’s federal system has been suffering, at least as of 2026, from a much more serious problem than (collusive) corruption in the Commission and the Hungarian government.

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1. Sandor Zsiros, “E.U. Court Challenges Controversial €10.2bn Payment to Hungary,” Euronews.com, February 12, 2026.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.

The E.U. on Ukraine: On the Human, All Too Human

On August 17, 2025, Ukraine’s president Volodymyr Zelenskyy met with Ursula von der Leyen, president of the E.U., as a precursor to both of them meeting with Don Trump, president of the U.S. on ending Russia’s invasion of Ukraine. President Von der Leyen had decided to accompany Zelensky to Washington in part to potentially play interference should the U.S. president again publicly berate Zelensky to his face and in part to protect Zelensky should Trump’s position/pressure be too pro-Russia (i.e., pro-Putin). To virtually all Europeans and to many Americans, Trump’s verbal outburst at Zelensky in the Oval Office had been shocking, especially as it seemed to be pre-meditated and orchestrated. Taking emotional advantage of the head of a state being invaded by the empire-scale Russia can assuredly be reckoned as being a bad host, and even low class for the president of the empire-scale United States. International relations do indeed contain a very human element, and in fact leaving it out of an analysis of an international situation is nothing short of negligent.

The full essay is at "The E.U. on Ukraine."

Euroskeptic Federalism: Obstructing the E.U.'s Recognition of Palestine

Just because U.S. federalism deposits foreign policy exclusively with governmental institutions at the federal level does not mean that that domain cannot be shared between state and federal governments in a federal system. This was precisely the case in the E.U. as it struggled to come up with a unified response to Israel having ignored the verdict of the World Court—the UN’s court—ordering Israel to cease and decease from invading Rafah from May 24, 2024 onward. Meanwhile, two of the E.U.’s states were poised to recognize Palestine. Such emphasis on the state governments playing the leading role is fraught with difficulties even though in theory there is on reason why foreign policy cannot be a competency, or domain, that is shared at the state and federal “levels.” In federalism, the federal and state governmental systems are on par, rather than one of the governmental systems being above the other, so “levels” is misleading. Even so, a lot can be said for delegating foreign policy to the federal level. This can be seen from the state and federal reactions in the E.U. as Israel continued its invasion of Rafah just after the World Court had ruled that Israel would be violating international law and the UN’s charter in continuing the offensive.

The full essay is at "The E.U. on Israel."

Israel Legalizes Illegal Settlements on Palestinian Land: On the Toll on the Rule of Law

Israel’s legislature passed a law on February 6, 2017 retroactively legalizing Jewish settlements on privately owned Palestinian land. Incredibly, the state’s own attorney general said he would not defend the new law in court because he had determined the law to unconstitutional and in violation of international law. Anat Ben Nun of an anti-settlement group said the law was “deteriorating Israel’s democracy, making stealing an official policy.”[1] Specifically, the Palestinians in the occupied West Bank, including those offered financial compensation for the “long term use of their land” but without being able to reclaim their property under the new law, “are not Israeli citizens and cannot vote for candidates for Israel’s Parliament, or Kenesset.”[2] I submit nevertheless that the underlying casualty in this case is the rule of law itself.

The full essay is at "Israel Legalizes Illegal Settlements."

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1. Ian Fisher, “Israel Passes Provocative Legislation to Retroactively Legalize Settlements,” The New York Times, February 7, 2017.

2. Ibid.

The E.U. Bailout Fund: The IMF of Europe?

One of the benefits of being in a federation—as distinct from an international organization—is that states in fiscal trouble can benefit from redistribution through a federal center. In other words, federalism provides a safety buffer that is lacking at the international level. E.U. finance ministers agreed on March 30, 2012 to create a permanent bailout fund for states that have adopted the euro. The New York Times reports that questions persisted “about whether the fund, even at about $1 trillion, will be sufficient to deal with crises” in large states like Spain and Italy, which are comparable to Illinois and California in the U.S.[1] Mudding the water, the Times incorrectly refers to the bailout fund as the E.U.’s IMF: “(T)he “bailout mechanism . . .  is meant to be a European equivalent of the I.M.F.”[2] However, the term “bailout fund” itself comes from the TARP, which was not the U.S.’s IMF.

The complete essay is at Essays on Two Federal Empires, available in print and as an ebook at Amazon.

1. James Kanter, “Europe Agrees to Bailout Fund for Euro of Over $1 Trillion,” The New York Times, March 30, 2012. 

2. Ibid.

Corporate Legal Personhood in the Kiobel Case

In Kiobel v. Royal Dutch Petroleum, the U.S. Supreme Court waded into the murky waters of corporate legal personhood, at least potentially, in hearing oral arguments in late February 2012. The issue in the case is whether corporations can be held liable to the extent that they are complicit in a foreign government’s human rights abuses. Legal personhood would say that they could be. This would represent an obligation that goes with legal personhood. The question is whether the justices who conferred in the Citizens United decision the right of corporations, based on their legal personhood, to make unlimited political donations would also be willing to view obligations as “part and parcel” with such personhood. If not, then legal persons, unlike human persons, would have the benefits of personhood without any of the obligations—an oxymoron to corporations to be sure. In other words, such an asymmetry would render the legal personhood doctrine itself as akin to a one-sided coin—which cannot exist, let alone stand.

As in any legal analysis, it is best to include a bit on the particular case itself. “In Kiobel, about a dozen Nigerians contend that Shell Oil's parent company aided and abetted their government in its torture and extrajudicial killing of environmental and human rights protesters resisting Shell's operations in Nigeria in the 1990s. . . . The plaintiffs brought their suit under a law, commonly called the Alien Tort Statute, passed by the first Congress in 1789 to allow foreign nationals to bring civil suits in federal courts ‘for a tort only, committed in violation of the law of nations or a treaty of the United States.’”[1] The law is silent on whether corporations can be sued under the law. Because of this silence, the U.S. Supreme Court can decide the case on the basis of whether corporations are legal persons, and, if so, whether obligations go with such personhood.

For its part, the U.S. Government submitted a brief stating in part, “Corporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our 'legal culture.'"[2] In other words, corporate personhood entails obligations, one of which is to refrain from contributing to human rights abuses abroad. On the other side, corporations and their allies have been submitting briefs arguing that they should not be subject to the law. It is only natural to want benefits without obligations. Corporate power could indeed enable “legal persons” to shamelessly enjoy the benefits without being subject to any of the obligations—even as such “persons” extoll their “corporate citizenship” for public relations purposes. That is to say, the U.S. Supreme Court could maintain the legal person doctrine for corporate contributions and essentially ignore it in refusing to include corporations as the “persons” subject to the Alien Torts Statute.

Indeed, in oral arguments, the high court seemed split five to four, with the conservative majority looking to exempt corporations even as it had cited their personhood in granting them the right of “wealth as free speech” in political contributions. Justice Kennedy, for example, said that “the case turns in large part” on the point that “international law does not recognize corporate liability.”[3] However, U.S. law is not limited to what is recognized in international law. In fact, the U.S. does not even recognize the International Criminal Court. Chief Justice Roberts and Justices Alito and Scalia expressed hostility toward the Alien Tort Statute itself. Alito noted that the lawsuit had been brought by foreign plaintiffs against a foreign defendant for acts that took place in a foreign country. “What business does a case like that have in the courts of the United States?” Justice Ginsburg noted that the U.S. Supreme Court had already allowed such cases to be brought under the Alien Tort Statute. She reminded the Court that the question was whether only individual defendants or also corporate defendants are liable—not whether the law itself is constitutional. Alito’s ploy at subterfuge—subtly attempted by pivoting on “the issue”—had been rendered transparent by the veteran justice. Unfortunately, however, the doctrine of legal personhood itself was not given center stage in the oral arguments.

In my view, rather than focus on the relationship between U.S. and international law, the justices should have used the oral arguments in Kiobel to decide in a definitive way whether “personhood” extends to corporations. Given the Court’s Citizen’s United decision, which allows corporate “persons” to give unlimited amounts to political action committees, a decision on Kiobel could have “laid down the law” not only on “abstract” legal personhood, but also more specifically on whether both benefits and obligations go along with personhood in a legal system based on laws. If corporations are able to cherry-pick legal opinions through inconsistent conservative justices in the majority—the Court itself reflecting a more general partisanship rather than the coherency that law itself must have—then we are no longer a people based on law rather than the power of the most powerful of our institutions. In other words, corporations may indeed be able to get away with all of the benefits of personhood without any of the obligations, with the cost being “passed on” in terms of the viability of the United States themselves.

1. Mike Sacks, “Corporate Immunity Looks Likely: Supreme Court Seems Ready to Side with Shell in Human Rights Suit,” The Huffington Post, February 28, 2012; Mike Sacks, “Corporate Personhood Case Forces Supreme Court to Hack New Path,” Huffington Post, February 27, 2012. 
2. Ibid.
3. Ibid.

The European Council and the U.S. Senate: Intergovernmental Institutions in Modern Federalism

As part of comparing the U.S. and E.U., pointing to similarities between the U.S. Senate (especially as originally designed) and the European Council is particularly valuable because both institutions constitute the intergovernmental, and thus international, aspect of their respective unions. By contrast, both the U.S. House of Representatives and the E.U. Parliament constitute purely governmental, or “national,” bodies irrespective of the state governments. Hence both the E.U. and U.S. governments are hybrid governmental/intergovernmental, and thus neither national nor international.

The complete essay is at Essays on Two Federal Empires.