Taking Subsidiarity Seriously: Federalism in the European Community and the United States

For a principle that has dominated discussions of European federalism for over five years, subsidiarity has received surprisingly poor academic mention. Subsidiarity has been criticized as inelegant . . .Eurospeak, the epitome of confusion, and simple gobbledegook. It has been described by some as nothing new and by others as quite novel and actually quite dangerous. The President of the Commission of the European Communities, said to be an enthusiast of subsidiarity, finds it used at times as an alibi, and more specifically as a fig leaf ... to conceal [an] unwillingness to honour the commitments which have already been endorsed. Despite subsidiarity\u27s apparent difficulties, the drafters of the Maastricht Treaty on European Union (TEU) nevertheless chose to make the principle a central tenet of the Community\u27s latest constitutional reform. As set out in the TEU, subsidiarity enjoins the institutions of the Community to act in areas of concurrent competence only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States. According to the principle, the Community institutions should refrain from acting, even when constitutionally permitted to do so, if their objectives could effectively be served by action taken at or below the Member State level. The drafters\u27 apparent purpose was to reassure Member State populations, and subcommunities within those populations, that the Community\u27s seemingly inexorable march toward greater legal and political integration would not needlessly trample their legitimate claims to democratic self-governance and cultural diversity. In this Article, I seek to understand the apparent contradiction between subsidiarity\u27s high claims and its relatively low esteem. The Article consists of four parts. Part I offers a largely historical explanation for the importance that Community leaders have apparently ceded to subsidiarity, while Part II confronts the realities of making subsidiarity in Europe more than a purely rhetorical device. In Part III, I conduct a search for subsidiarity as a principle and practice of U.S. federalism, in the belief that the exercise may instruct us about the utility for the Community of an instrument as seemingly problematic as subsidiarity, as well as about the relationship between subsidiarity and federalism more generally. Part IV sets out the results of this comparison