Examines the most recent attempts in both the USA and the EU to respond to attacks on the legitimacy of ‘federal’ governance by building into the legislative or regulatory processes a federalism or subsidiarity criterion. The authors show that such criteria, when formulated as guidance on ‘where’ policy should be made, have been largely ineffective and inoperable; ‘federalism’ criteria have been subsumed and assumed away under either purely political decisions over the scope of devolution or broader cost-benefit analysis in the USA, and the EU has not abandoned significant policies under its ‘subsidiarity review’. In contrast, there has been increased use of ‘how’ criteria, which increase accountability of central decision-making by requiring a publicized process of justification for the policies. ‘Procedural subsidiarity’ is a concept relevant to governance on both sides, as they each have come to focus on how to provide more discretion to lower levels of governance in implementing or administering federal policies—although that has been achieved in very different ways in the USA and the EU. In short, the authors make the case that new sources of legitimate governance are not mainly to be found in the recent subsidiarity and devolution pledges appended to the USA and EU covenants.
Keywords: accountability, central decision-making, cost-benefit analysis, decision-making, devolution, EU, federal governance, federalism, governance, how criteria, policy-making, procedural subsidiarity, regulatory processes, subsidiarity, USA, where criteria