(p.483) Appendix Basic Principles for the Allocation of Competence in the United States and the European Union
While the chapters in this book inevitably draw attention to broader issues of legitimacy and levels of governance, this appendix is meant to provide a rough overview of the legal basis for allocating competences between the States and the Union in the two systems. This exercise should better enable appreciation of the nature of the choices that have been made, and are being made, in Europe and the USA. The discussion adopts two assumptions: first, that to qualify as legal principles, the lines of federalism should be drawn in some more or less regular fashion rather than haphazardly or through the sheer exercise of power; second, that whatever the lines of federalism may be, certain legal mechanisms will in fact be put into place in order to ensure that these lines are respected. In reality, there is a much broader range of legal instruments and controls available for these purposes than is commonly supposed, and both the EU and the USA have made, and are still in the process of making, their selections. In a nutshell, federalism principles can be organized around three broad sets of legal criteria, namely, allocative, structural, and procedural: first, the substantive allocation of subject matters or functions to different levels of government would seem to be the most basic approach to the relationship and balance of power between the States and the Union—at least for the general public: second, the structures or institutions at the federal level may be designed to promote indirectly the interests of the constituent States and their separate populations: third, those institutions can be required to employ certain decision‐making procedures or decisional processes aimed at promoting the values of federalism and the respective interests of the various levels of government. The first section of the appendix focuses mainly on the allocative principles of federalism, and the second section signals other considerations that may be relevant to the distribution of competences: supplementary mechanisms to safeguard the basic allocations.
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