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.
This disconnect is something that the Eurozone crisis has arguably demonstrated in a highly acute and perhaps even tragic way. As Stefano Bartolini presciently warned in 2005 (i.e., well before the onset of the crisis), “the risk of miscalculating the extent to which true legitimacy surrounds the European institutions and their decisions . . . may lead to the overestimating of the capacity of the EU to overcome major economic and security crises” (Bartolini 2005, 175). When it comes to the sort of transnational taxing, borrowing, and spending authority that many thought the Eurozone crisis demanded for the EU, there proved to be “a line in the sand beyond which only governments can set priorities and act” (Pisani-Ferry 2013). The lack of robust democratic and constitutional legitimacy at the supranational level in the EU is a barrier to formulating policies with real macro-economic significance (not the one per cent of European GDP that is the current EU budget). Without these supranational fiscal capacities—and more importantly without the autonomous democratic and constitutional legitimacy to support them—the central instrument used to pay for the Eurozone crisis has necessarily been national austerity, combined with national pre-commitments to fiscal discipline enforced by supranational institutions.
This outcome, alas, is entirely predictable from an administrative perspective on European legal integration and its ongoing struggle for reconciliation between supranational regulatory power and national democratic and constitutional legitimacy (see generally Lindseth 2010). European governance, as an example of an SNO of an essentially administrative character, is legitimate for certain purposes but not others—unless Europeans are prepared to change fundamentally their understanding of what democratic self-government means, or where it is located. Both the allocation of competences in the first place, as well as the interpretation of competences already allocated, must be sensitive to this reality.
In short, whenever we talk about the legitimacy of a supranational organization, we must always ask “legitimate for what?”—just as we would for an administrative body on the national level (Lindseth 2012a). It is one thing to delegate authority to harmonize regulatory standards in various domains (important a task though that may be). It is quite another to delegate taxing, spending, and borrowing authority in some indeterminate way, subject to the control of a European Parliament whose democratic and constitutional legitimacy is tenuous. For that latter kind of power, as the Eurozone crisis seems to have demonstrated, Europe still depends on the strongly legitimated institutions of outright “government” at the national level. Institutions of supranational “governance,” exercising delegated power in a delegated, administrative sense, are simply not yet equal to that task.