Comparative Federalism and the Issue of Commandeering
University of Michigan Law School
THE FEDERAL VISION: LEGITIMACY AND LEVELS OF GOVERNANCE IN THE US AND THE EU, Kalypso Nicolaidis & Robert Howse, eds, Oxford University Press, 2001
Divided power systems, such as the United States, the European Union, and the Federal Republic of Germany, confront a common question: whether the central government may "commandeer" its component States, that is, whether the central government may issue binding commands that force its component States to take regulatory action with respect to private parties. This Article explores what may initially appear as a puzzling difference in the answers given. Whereas U.S. constitutional jurisprudence currently prohibits commandeering, the founding charters of the EU and Germany permit such action.
This Article responds in part to Justice Breyer's dissent in Printz v. United States, 521 US 898 (1997), in which he seeks to draw on the European experience as an example of how "commandeering" may further the integrity of subnational units of governance and, ultimately, promote individual liberty. Taking up Justice Breyer's comparative inquiry, this Article seeks (1) to illustrate that comparative investigations into foreign constitutional systems may assist in developing a richer understanding of one's own, and (2) to demonstrate that any conclusion derived from such comparisons must be highly attentive to the broader institutional and political context in which the studied phenomenon (such as commandeering) occurs. The piece examines several differences that may account for differing component State preferences regarding commandeering in the various systems (most prominently, the corporate representation of the component State within the central lawmaking bodies, the relative completeness and effectiveness of the central and component State systems, and the prominent alternatives to commandeering). It then illustrates the dynamic of these institutional arrangements by way of the German example, and finally touches upon general considerations regarding the relative merits of the distribution of power in the various systems.
The Article concludes that the radically different views regarding commandeering in the various systems may be somewhat less puzzling after the more searching examination of the institutional dynamics presented in this piece.
Number of Pages in PDF File: 34
Date posted: January 17, 2001