The Role of Law in the Functioning of Federal Systems
Federal systems are about the distribution of legal and political power, but law is not only one of the currencies of federalism, it is also one of federalism's most important supports; this chapter considers the role that law plays in establishing and enforcing the system by which both legal and political power are distributed within the USA and the EU. Bermann explores the various ways in which the courts can, and choose to, enforce the principles of federalism beyond the classical ‘political’ and ‘procedural’ safeguards provided by the institutional structures themselves and the constraints on the deliberative process. He describes the reluctance on the part of courts on both sides to police the borders of enumerated competences, assess the ‘necessity’ of federal action, or carve out the ‘core’ of state sovereignty, all of which are ways of ‘second‐guessing’ the political process; he then points to the recent emphasis of the USA Supreme Court on what he calls the ‘relational’ aspects of federalism, whereby courts can identify ‘forbidden interfaces’ between State and federal governments, even without specific constitutional grounds. Bermann uses the examples of sovereign immunity and of anti‐commandeering to illustrate the manner in which court‐enforced constraints on the manner in which different levels of government interact can protect and promote democratic accountability in the USA. In contrast, European Union law offers no protection against risks to democracy from commandeering, but more broadly relies almost exclusively on the representation of member states and sub‐national units in the Council as structural political safeguards.
Keywords: anti‐commandeering, commandeering, court enforcement, courts, democracy, democratic accountability, EU, federal governments, federal systems, federalism, governance, institutional structures, law, legal power, political power, sovereign immunity, state, state sovereignty, USA
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