Supranationalism | Legitimacy | Elections | Constitution | Federalism | Referendums

I can see at least three senses of federalism:

1) favouring more power for the federal government as against the states; contrast “states rights”

2) favouring a de facto and de jure separation of competences between federation and states, such that the one may not unilaterally revoke the powers of the other; contrast “unitary government”

3) favouring the aggregation of states into large states

The problem is sense 2), federalism as against unitary government. Inherently, this sort of federalism implies an enforceable limitation on government power: you have to be able to go to the courts and have legislation declared invalid on grounds that it was enacted at the wrong level of government. And that implies that courts have a power to declare legislation invalid at all.

The UK, France, and the EU do not, in practice, have courts which behave like this. Has any citizen ever had an EU directive declared outside the power of the EU, by the ECJ? The absence of ex post review of legislation in the French and UK traditions has prevented the development of federal systems in those polities, and in any polities which adopted their traditions, such as the EU. The American practice of ex post review, dating to 1803, has allowed the entrenchment of federal vs state powers in the USA, and been copied in Canada, Australia etc. Germany is more similar to the American rather than Anglo-French tradition in this respect.

So, the EU is a unitary rather than federal polity: the ECJ doesn’t in practice practise ex post review, and MEPs hold the idea of exclusive member state competences in open contempt. The contrast with America is again striking: American conservatives have no trouble opposing federal gay marriage bans on states rights grounds.

So. The constructors of the EU have brought about a situation where there can be no enforceable division of competences between the federal and member state governments. An extremist minority persists in attempting further deliberate transfers of competences to federal level, and nothing can stop them.

We should now turn to the Moravcsik fallacy, i.e., that the sorts of powers exercised by the EU are of a type which should not be exercised democratically. Classic examples are the ECB and the Commission’s anti-trust enforcement operation. If all the EU’s competences are of this sort, then the democratic deficit is not just non-existent, it is actually desirable.

Of course, it’s also an argument for abolishing pretty much all EU competences other than the ones which ought not to be exercised democratically.

Moravcsik’s approach is useful: the adequacy of the EU’s democratic mechanisms should be considered on a competence-by-competence basis. What he doesn’t say is that the EU’s record, when considered this way, is pathetic and embarrassing. The radically unitary character of the EU’s allocation of competences means that the record will deteriorate over time and further delegitimise the polity.

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