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77 N.Y.U. L. Rev. 1612 (2002)
Protecting Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism

handle is hein.journals/nylr77 and id is 1626 raw text is: PROTECTING MEMBER STATE AUTONOMY IN THE EUROPEAN UNION: SOME CAUTIONARY TALES FROM AMERICAN FEDERALISM ERNEST A. YOUNG* The European Union's ongoing Convention on the Future of Europe must tackle a fundamental issue offederalism: the balance between central authority and Mem- ber State autonomy. In this Article, Ernest Young explores two strategies for pro- tecting federalism in America-imposing substantive limits on central power and relying on political and procedural safeguards-and considers their prospects in Europe. American experience suggests that European attempts to limit central power by enumerating substantive competences for Union institutions are un- likely to hold up, and that other substantive strategies such as the concept of sub- sidiarity tend to work best as political imperatives rather than judicially enforceable doctrines. Professor Young then examines the political safeguards of Member State autonomy in the EU as currently constituted. He argues that the balance between the center and the periphery is likely to be affected by how the EU resolves basic separation-of-powers questions at the center. Efforts to address per- ceived deficiencies of the Union government in its resource base, lawmaking effi- ciency, and democratic legitimacy likewise will have a fundamental impact on federalism. Finally, Professor Young touches on two broader themes. He first asks whether Europeans, given their cultural distinctiveness, would prefer a stronger form of federalism than America has been able to maintain; if so, the American experience is relevant primarily as a cautionary tale. He then considers how Eu- rope's institutional experience and current debate can inform the American dis- course on federalism by helping Americans break free of ideological and historical preconceptions and offering insights into emerging issues at the intersection of do- mestic constitutions and supranational institutions. INTRODUCTION ................................................. 1613 I. EUROPE'S GREAT EXPERIMENT ......................... 1621 A. The Tale of the Treaties ............................. 1623 B. The Community Institutions ......................... 1625 * Assistant Professor of Law, The University of Texas at Austin. B.A., 1990, Dartmouth College; J.D., 1993, Harvard Law School; eyoung@mail.law.utexas.edu. I presented earlier versions of this paper at St. John's College, Oxford, and the University of Siena, and I am indebted to Paul Craig and Francesco Francioni for their hospitality and insightful observations on those occasions. I am also grateful to Hans Baade, Lynn Baker, Daniel Halberstam, Mattias Kumm, Doug Laycock, Jonathan Pratter, Steve Ratner, Larry Sager, Russell Weintraub, and Allegra Young for helpful comments on drafts, as well as to the participants in the UT Faculty Colloquium. Finally, I appreciate the helpful research and editorial assistance of William Ashworth, Kelli Baxter, and Beth Youngdale, as well as Gerald Neugebauer, Jason Padgett, and the other editors of the New York University Law Review. 1612 Imaged with the Permission of N.Y.U. Law Review