I have a new piece posted on SSRN that may be of interest to readers. Entitled ‘Supranational Organizations’, it will appear in the Oxford Handbook of International Organizations (Ian Hurd, Ian Johnstone and Jacob Katz Cogan, eds., forthcoming 2015). This chapter elaborates on the argument (made previously, for example, here and here) that supranational bodies – more specifically those of the EU – are best understood as extensions of modern administrative governance rather than as incipient democratic and constitutional bodies in their own right. The full chapter may be downloaded here. Below, however, are the closing paragraphs, which explore whether, as a consequence of their fundamentally administrative character, supranational bodies in Europe should be subject to some form of constraints on the power delegable to them, a question that goes directly to the administrative-constitutional distinction:
The problem with a “constitutional” framework for understanding European integration is that it ignores any limitation on the scope of authority delegable to the supranational level. It assumes European supranationalism can legitimize an ever-increasing range of regulatory powers in autonomously democratic and constitutional terms, as if supranational institutions are or could be a site of such authority in their own right, apart from the member states that created them. Even for the most sophisticated “constitutional” theorists of the EU, the evolution of European public law and supranational authority ultimately is a question of the functional demands of interdependence as they perceive them (Maduro 2012). Given the demands of the Eurozone crisis, this ultimately functionalist understanding suggests that the Eurozone crisis should have automatically led to both to greater fiscal capacities as well as an intensification of democratization and constitutionalization at the supranational level (Habermas 2013). This purely functionalist approach, however, ignores the complex interplay between the various dimensions of institutional change, not just functional (need), but also political (interests) and cultural (conceptions of right), as well as the ensuing process of contestation, reconciliation, and settlement (cf. Lindseth 2010, 13–14). This failure to account for the full complexity of institutional change leads to a temptation to view European legitimacy as primarily a matter of institutional engineering, most often revolving around more powers for the European Parliament (see, e.g., European Commission 2013).
By contrast, an historical-constructivist understanding of the EU as a denationalized form of administrative governance is deeply cautious about such engineering and, in view of the complex process of institutional change, stresses the ultimate constraints on the scope of authority delegable to the supranational level. Such supranational delegation constraints are analogous, I would maintain, to similar constraints that exist in national administrative states, expressed in such doctrines as the Italian riserva di legge, the German Vorbehalt des Gesetzes, or the American “nondelegation doctrine” (Lindseth 2014, 553, 556). Given the fundamentally administrative character of the European integration, the EU (qua [supranational organization (SNO)]) can sustain a great deal of autonomous regulatory power; nevertheless, there are limits to what it can reasonably sustain given the lack of autonomous democratic and constitutional legitimacy. Continue reading