Charles KECKLER: Independent Agencies as Reverse Parliaments: A Reconciliation of Paradoxes

At times, European constitutional discourse contributes to American discussions about the administrative state and looks at the work of independent agencies and similar institutions. Offering an American point of view of this field inspired by European institutions is not only relevant to European constitutional discourse, but useful in addressing many of the issues Europe is expected to tackle in the future. This piece serves to start a conversation on the topic of independent regulatory agencies, and an argument for why they should be led by commissions, multipartisan in nature, but with a majority and chair in alignment with the current government.

The independent agency (in general) is the most significant alternative method of conducting executive activities in a government, standing in distinction to an “ordinary” hierarchy of agents reaching back to the chief executive. Unlike the chief executive elected by the people and thereby holding democratic legitimacy, an independent agency is generally led by officials who are appointed. Indeed, the independent agency generally has plural officials, not a singular head, and this plurality must now be considered a constitutional requirement (in America) under the Supreme Court’s ruling in Seila Law.[1] Moreover, it is commonly (although not universally) the case that the board, commission, or other plural leadership group is comprised of members from multiple political parties. Some members, notably, will share partisan affiliation with the chief executive in charge, and some will not; in certain circumstances, the agency may find itself for a time still in control of the opposition or deadlocked between the parties. Finally, it is common to speak more precisely of independent regulatory agencies, because this is most typical task assigned to the independent agency – that of crafting rules of general effect at a level nominally below that of legislation yet with the same legal force and often with even greater impact.

None of the elements of this suite of features is, I would argue, accidental – they cohere together in that the structure of the organizational model chosen matches its core intended quasi-legislative function. But the independent regulatory agency is an institution that arose outside of the letter of the Constitution, and sits uneasily within it. Its very name bespeaks its paradoxes. It is “independent,” but of whom? If it is of the Chief Executive, for whom then it is an agency? This presents a key problem of legitimacy, because it is the President who is elected and therefore any independence from the electorate – even at one remove – takes away the imprimatur of the people’s consent from the agency.  The election of the executive is tied to the people’s choice of a plan and agenda; but his or her plan (and thus their choice) is fatally compromised by the presence of an executive element outside presidential control. Presidentialists who support the unitary executive theory consider the division of authority created by independence flatly unconstitutional.[2] Under this theory, moreover, it seems particularly puzzling (and constitutionally dubious) that a newly-elected chief executive must govern through members of an opposition party the voters have just rejected, through semi-autonomous commissions led in part by political opponents, now purportedly his or her subordinates.[3] 

Perhaps less commented upon – simply because it has so long been acceded to – is the ambiguous functional role of the independent regulatory agency. From a practical point of view, the broad, consequential rules developed by any executive agency, backed by force of law, constitute the functional equivalent of legislation and therefore compete with (if not actually usurp) the role of a legislature.[4] The typical hierarchical rules-issuing executive agency, with its single head and single-party leadership is, in structural form quite distinct from the form almost universally expected of a legislature, which normally and normatively consists of a plural body representing different interests and viewpoints. The independent regulatory agency, for all its flaws, however, more closely resembles in design a ‘miniature legislature’. Once this is recognized as representing a valid if undertheorized intuition about the kind of institution best suited to make rules (rather than simply execute them), the constitutional tension created by housing quasi-legislative activity within the executive provides a key insight into how to reconceive and thus resolve several of the puzzles about the independent agency as an institutional form.

Especially since the New Deal, there has been a long struggle over the proper constitutional role for the legislative power exerted by the Executive Branch, and especially by the President. The debate over the independent agencies is an important part, but only a part, of an extended process of controversy and compromise, and attempts by our institutions to reconcile the demands on a modern national government for creative action and adaptation with a constitution that contemplated almost no legislative authority for the executive. In particular, it has been the role of the Supreme Court, as the arbiter between legislature and executive, to put some restraints on the tendency of Presidents to act in place of, in lieu of, or in even in spite of Congressional action which could accomplish the same aims. As Justice Jackson put it:

With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.[5]

The independent agencies, although in effect making law within the Executive, at their best can preserve what Jackson thought essential to free government, aspects of parliamentary deliberation in their legislative rulemaking. Here, I briefly outline a normative theory that extends the analogy to parliamentary systems and suggests a single reform to the independent agency which can address the most salient concerns about being forced to use partisan opponents as agents, and about the discoordination of executive plans raised by advocates of the unitary executive.

An actual Westminster-style parliament successfully blends the legislative and executive functions, although not without tensions and complexities in the field of ‘fusion of powers’.[6] At the most basic level, this is accomplished by “the government” – that is to say, the executive power – coming into being and deriving its legitimate authority from its command of a working majority in the legislature. In Britain, for example, when a new majority takes legislative power in the House of Commons, select members of this majority take subsidiary Cabinet roles as principal officers at the heads of the executive departments, with one becoming Prime Minister or chief executive.[7] To state the obvious, this tight connection provides coordination between the executive and legislative policy agenda, and assures that the terms of office and partisan alignment of these two functions will match.

The Founding era naturally was familiar with parliamentary systems – more familiar, indeed, than with the system of separated and interlocking powers that they were creating.[8] For a variety of reasons, the constitutional convention ended up rejecting a parliamentary system (in the form of a president appointed by the congressional majority), although the question was a much closer one than is commonly understood.[9] But since that time, the growth of the administrative state has to some extent created a convergence at the functional level. For matters within the jurisdictions of the bipartisan, multimember independent agencies, quasi-legislative activities take place within the executive through what are structurally quasi-legislatures. These need a level of autonomy in their decisions, but ideally should be in general coordination with the President having legitimate constitutional authority over all executive branch officials, and with the policy program the electorate has empowered him or her to enact.

The British executive establishment and the Prime Minister in particular derives authority from the Parliament elected by the people. Under a similar rationale, but flowing in the opposite direction, the quasi-legislatures of the independent regulatory agencies can be perceived as deriving their authority from the President elected by the people. In effect, the ideal regulatory commission is a kind of “reverse parliament” – a legislature (albeit one with a delimited scope) which comes into being when an executive comes into power.[10] A key implication of this theoretical reconstruction of the independent commission is that, like the British Cabinet, it should reflect the democratic choices embodied in the elected institution from which it derives its authority, although that authority can remain distinct.

From this follows logically an acceptance of the most fundamental argument against opposition party members: that a President should not have to depend on the political opposition to carry out the activities within the Executive Branch. This does not imply a requirement that everyone other than a member of the President’s party should be purged from leadership of an independent agency. However, both the administrative capacity of the President and his constitutional ability to assure faithful execution reach a key inflection point when he or she commands a majority of the commission in question. Moreover, this alignment is what creates democratic legitimacy for the commission’s authority and autonomy, tying its exercise of governmental powers back to the choice of the electorate. Under the reverse parliament model, just as when in Britain a new parliamentary majority creates an executive, in the American administrative state a new executive should generate a new commission majority.

If this model were carried out, it would also address the key and most legitimate demand of presidentialists and unitary executive theorists, that a President have the facility to coordinate the activities he or she has been elected to lead, and be able to execute the program which was presumably the basis of that election. With a majority in place at or near the time the new President comes into office, it becomes possible for the President to effectively transmit his or her proposals to the relevant agencies with a reasonable expectation of them being considered and implemented in conjunction with the rest of the Executive Branch. He or she should not be compelled to wait for years for action based on the adventitious expiration of fixed terms or fortunate resignations. The presidential program would be subject to debate within the commissions, because they would maintain bipartisan membership, and would benefit from the expertise derived from continuity of members’ service, because only members sufficient to form a majority (usually just one) would need be replaced. But a proposal would not be dead on arrival due to overlapping officer terms that have little constitutional weight, and which only serve to exacerbate the constitutional tensions inherent in the independent agency system.

The most efficient way to put the reverse parliament theory into practice is to tie the terms of commission chairmen – but not commission members generally – to Presidential terms, or else make chairs (and only them) removable at will. For some agencies, courts may be able to judicially interpret provisions allowing Presidential selection of the chair to achieve this effect,[11] especially where the statute does not have explicit protection for agency leadership and the “independence” of the agency is based on judicial inference (usually derived from the presence of a bipartisan commission structure). Creating a new background norm of the relations between agencies and Presidents would alter what the Court has until now taken to be the implication from the organizational commission form, at least with regard to the chairs of commissions. The result would be that the judiciary would cease to assume any removal protection or independence for chairs, once a change in the partisan control of the executive branch occurs. The better solution, however, required in many circumstances and more appropriate in all, would be for Congress to pass a straightforward law that aligns the terms of office for commission chairman with the date of the presidential inauguration, putting in place a rule applicable across all the independent agencies.

Note that this does not change the presence or validity of the only-for-cause removal restriction, as such, for any independent agency director, including the chairs. Once appointed, chairs would possess protection, but their term and thus appointment are tied back to the presidential authority. Once their term expires, chairs could continue to serve until replaced (for continuity or to assist during periods of presidential transition). But they would enter into what is called “holdover” status, and become removable even if they had possessed removal protection while serving their term.[12] Knowing this, many chairs likely would resign, but if they refused to do so, they could be legally removed without demonstrating the removal need be one undertaken for cause. As a consequence, new Presidents could have the opportunity to select leadership at the time they are forming their government in general, and avoid the delays and policy asynchrony that should trouble advocates of a strong and responsible executive.

At the same time, this proposal, and the model from which it derives, conserves the core features of the independent agency as it has developed in American law, and permits it to continue as a second-best accommodation to the growth of the administrative state and executive legislation. Under this clarified, limited, and electorally responsive structure, achievable by only minor adjustments to the way most independent agencies are already structured and operate, the long controversy over removability of directors may begin to lessen, and the independent agency can attain a more secure footing in the constitutional order.

Charles N. W. Keckler is a graduate of Harvard College, where he was elected to Phi Beta Kappa and received his B.A. in Anthropology, magna cum laude. He went on to receive his M.A. in Anthropology, and his J.D., from the University of Michigan. He has served, during two presidential administrations, in several senior appointed positions in the U.S. Department of Health and Human Services, including Senior Advisor to the Secretary and Acting Deputy Secretary, and from 2017-2020, led the Department’s award-winning transformation initiative, ReImagine HHS. Between his periods at HHS, he was twice confirmed by the Senate as a minority party member of the Board of Directors of the Legal Services Corporation. His academic experience has included teaching courses in various disciplines at Harvard, the University of Michigan, the University of New Mexico, Northwestern, Pennsylvania State University, Washington & Lee, and George Mason University.

[1] See e.g. Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. ____ (2020), 2. („leadership by a single individual […] violates the separation of powers.”)

[2] See, e.g., Steven G. Calabresi & Nicholas Terrell, The Fatally Flawed Theory of the Unbundled Executive, 93 Minn. L. Rev. 1696, 1697 (2009); Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205, 1244 (2013).

[3] Ronald J., Krotoszynski Jr., Johnjerica Hodge, and Wesley W. Wintermyer,

Partisan Balance Requirements in the Age of New Formalism, 90 Notre Dame L. Rev. 940, 949-50 (2015). See also id. at 998 (“Although the Constitution contemplates a system of checks and balances in the federal government, mandatory partisan balance requirements clearly create significant tension with the unitary executive created in Article II, Section 1 of the Constitution.”). Cf. Charles N. W. Keckler, I’m Unconstitutional: Another Dubious Restriction on the Power to Remove, 20 Green Bag 2d 175, 178 (2017) (providing a justification for opposition-party members as an institutional source of alternative analysis).

[4] Stephanie P. Newbold & David H. Rosenbloom, Critical Reflections on Hamiltonian Perspectives on Rule-Making and Legislative Proposal Initiatives by the Chief Executive, 67 Public Admin. Rev. 1049, 1053 (2007).

[5] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 655 (1952) (Jackson, J., concurring);

[6] See Matthew Flinders, Shifting the Balance? Parliament, the Executive and the British Constitution, 50 Political Studies, 23, 26 (2002) (discussing multiple approaches to the legislative-executive in Britain, all leading to a doctrine of parliamentary sovereignty).

[7] Members of the House of Lords can also join the executive as members of the government, and a number of sub-Cabinet officials (“junior ministers”) are also appointed from the majority and given executive responsibilities. These details and the additional nuances are not critical to the theoretical points developed here, however.

[8] F. H. Buckley, The Efficient Secret: How America Nearly Adopted a Parliamentary

System, and Why It Should Have Done So, 1 Brit. J. Am. Legal Stud. 349, 366 (2012).

[9] See id., at 80-83 (discussing how supporters of a parliamentary system compromised to accept the Electoral College).

[10] This remains only a quasi-legislature with its jurisdiction limited by the statutory delegation of authority by the real legislature, Congress, which loses none (or rather, no more) of its authority under this theory.

[11]See Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 796 (2013) (“Chairs are typically seen as a presidential proxy because they usually hold their position as chair (but not as members of the agency) at the will of the President.”)

[12]See Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) (member of National Credit Union Administration was removable without cause after expiration of his statutory term, although still serving under provision that allowed holding office until replaced). There is not a Supreme Court precedent on this precise point, but the logic of Free Enterprise Fund would almost certainly uphold Swan and extend it. See Keckler, supra n. 2, at 178 n. 10.

Luca Sevaracz: Hungary Elects – Will 2022 Be a Happy New Year Bringing a New Era?

Considerations on Some Electoral Rules

The (happy new?) year of the general elections of Members of the Hungarian National Assembly long awaited by many all over Europe has finally arrived. Most recent preludes to this year’s elections include the Hungarian opposition primary in 2021, organized for the first time since the 1989 transition. Political parties are in an active campaign mode yet the official campaign period – in accordance with Section 139 (1) of the Act XXXVI of 2013 on Electoral Procedure (EPA) – only lasts from the 50th day before and until the end of Election Day. Currently, we seem to have more questions than answers on some of the constitutional aspects of the campaign and the elections since Election Day was set on 3 April 2022 by the President of the Republic – consequently, the election period starts on 12 February 2022 – yet we don’t know whether the previous jurisprudence of the Hungarian Constitutional Court (HCC) and the Curia on state neutrality will be upheld. Nevertheless, I’m going to take a look at the details.

According to John Rawls, the neutrality of a state generally means that the state, on behalf of its citizens, cannot decide what constitutes “good life”. The same perception of state neutrality appears in different constitutional norms and constitutional principles; it can be also viewed as an underlying principle of constitutional interpretation. The criterion of state neutrality is a complex question. Although the Fundamental Law of Hungary does not explicitly state it, it can be inferred from its specified provisions such as Article VIII (3) which states that “political parties shall participate in the formation and expression of the will of the people”; as well as, “they may not exercise public power directly” or Article XV, which guarantees equal opportunity.

First and foremost, the Curia infers the requirement of neutrality from Section 2 (1) c) of the EPA. In its case-law it frequently refers to the established principles laid down in case no. Kvk.IV.37.360/2014/2., which hold that “the basis of parliamentary democracy is the political parties’ competition for votes. The healthy operation of democracy cannot be imagined without political pluralism and the political parties’ equal opportunity in the political contests. The legal framework with equal terms guarantees the state’s neutrality in the contests of the political parties. This requirement is relevant to the local governments as well. […] As the state, so the local government must warrant the equal expression of politically active citizens’ party preferences. The state and the local government with public power must not influence the actual competitive positions, must not level yet must not widen the differences.” In 2019, the citizens of ten (from twenty-three) cities with country status (megyei jogú város, the Hungarian classification of administrative law that house country-level administration and dispose of additional rights and obligations) elected mayors from the opposition parties. It remains to be seen whether these opposition leaders will interfere with the campaign on this level by using their public positions, even though part of them used to lodge objections with the National Election Commission against the governing parties for committing similar abuses of power.

The Venice Commission laid out the main fields of equal opportunity for political parties and candidates in its Code of Good Practice in Electoral Matters as follows: (i) the election campaign and its specific parts; (ii) media coverage, in particular by the publicly-owned media; and (iii) public funding of parties and campaigns. Before 2019, the basic premise of the case-law of the HCC and the Curia on state neutrality was that elections must be open to competition, and that the state shall guarantee the equal treatment of the parties and the candidates. However, due to the amendment of the EPA, entering Section 142 into force, the jurisprudence of the Curia took an unexpected turn. In the Case of Gulyás (Kvk.III.38.043/2019/2.) – in which Gergely Gulyás, the Minister of the Prime Minister’s Office, on behalf of the Hungarian Government, declared that he finds Gergely Karácsony unsuitable to the position of the Lord Mayor – the Curia held that since the entry into force of Section 142, its precedent on state neutrality within the election campaign cannot be upheld anymore, as it has already not been applied in the campaigns of the elections of the European Parliament’s Members. Under Section 142 EPA, the activities of election bodies, personal communication among citizens as private persons, regardless of its content and form, the activities arising from functions determined by the law and performed by the Constitutional Court, courts, local governments and other State entities do not fall under the notion of an election campaign. The above-mentioned decision of the Curia is apparently not in conformity with Article 28 of the Fundamental Law since the judicial interpretation of Section 142 (which states that the previous jurisprudence cannot be upheld), is inconsistent with the detailed justification of the same provision, highlighting the necessity of shifting back to the Curia’s earlier jurisprudence. According to Article 28 of the Fundamental Law, courts shall interpret the text of laws primarily based on their purpose which can be construed in reliance on the preamble of the law in question and the justification of the proposal for the law in question or its amendment. In conclusion, the Curia, referring to the jurisprudence of the HCC, allowed the amalgamation of the communication of the Government and the governing parties which encourages an alarming campaign strategy. In this year, the HCC shall decide what future is ahead for state neutrality within the election campaign.

Serious concerns can be raised over media coverage in Hungary and we may see a tendency how the publicly-owned media tries to influence the voters’ choices. The HCC differentiates between broadcast and print media based on persuasiveness in conformity with the recommendation of the Venice Commission. In connection with broadcast media, a wider restriction of the freedom of the press and editorial freedom can be acceptable since it has a more extensive impact on voters’ attitudes. The only exception is print media owned by public authorities because these publications represent the owner who exercises public power. Therefore, these outlets also have to be neutral. More specifically there is a constitutional and statutory requirement for balanced and impartial information under the Fundamental Law, for instance, Article IX (2) which states that Hungary shall recognise and protect the freedom and diversity of the press and shall ensure the conditions for the free dissemination of information necessary for the formation of democratic public opinion. According to HCC Decision 16/2020. (VII. 8.), the establishing and maintaining of democratic public opinion arise from the institutional protection of the freedom of expression, which is not only the obligation of the state but also of the media. Besides that, public media should provide equal conditions for the parties and the candidates to relay their messages to the voters, however, they usually interfere with the campaign by allowing access to platforms on the basis of political orientation.

Last but not least, let’s take a current example, and see how campaign funding can distort the political competition for votes. From 6 January 2022, a new Facebook advertisement is available, which is financed by the Hungarian Government. Its title is the Government’s latest campaign slogan for the upcoming elections which is “Hungary goes (or must go) forward, not backwards.” According to the information provided by Facebook, the Government already spent over one million Hungarian Forints on this advertisement and the number of impressions is over one million too. And yet, we haven’t talked about the billboards with the same slogan all over the country. Although the Government finances the advertisements, these can strengthen the governing parties’ messages and influence voters’ choices.

In correlation with the above-mentioned, another constitutional concern raises in terms of free elections, which should be protected by the state as well. Under HCC Decision 1/2013. (I. 7.) the state must provide the free expression of opinion and the freedom of choice in the context of the elections. The jurisprudence of the German Federal Constitutional Court holds that any state interference violates the integrity of the free expression of the voters’ will. If a state entity’s operation is intended to influence voters’ choices, on the one hand, it engages in campaign activity; on the other hand, it harms the free decision-making of the voters which should be undisturbed. The misuse of public media, the confusing slogans or disproportionate public campaign funding could easily lead to the violation of free elections.

Recognising this disquieting global trend, the European Commission set up six priorities between 2019 and 2024, one of them is called “A new push for European democracy.” The European Democracy Action Plan is part of this priority and intends to promote free and fair elections; as well as, to strengthen media freedom in the light of the Elections of the Members of the European Parliament. Key actions in the area of protecting elections include proposing legislation to ensure greater transparency in the area of sponsored political content, accompanied by support measures and guidance for political parties and the Member States, moreover, proposing a revision of the Regulation on the funding of European political parties. The Plan’s second pillar is media freedom and pluralism where the Commission tends to curb strategic lawsuits against public participation (SLAPPs by way of the wide-spread US acronym), furthermore, it aims to strengthen the transparency of media ownership and state advertising through the new Media Ownership Monitor.

To summarise, in the spirit of state neutrality, democratic elections cannot be imagined without equal opportunities for those who compete for votes and without the free expression of will. Free elections go hand in hand with democratic public opinion which stands on two pillars; (i) on the comprehensive and unbiased reporting by the media and (ii) on the information obligation of those who exercise public power. As regards the latter, in 2018, the Curia stated in the Case of the “STOP billboard campaign” (Kvk.III.37.421/2018/8.) that, during the campaign period, state entities shall inform voters about their activities within the framework of the EPA. Furthermore, the information must be impartial, objective, current and shall serve the public interest. By using its positions to engage in campaigning instead of providing information, through its media, to the public, any state entity might cross important thresholds of pluralism and decrease the possibility of an effective public debate.

Luca Sevaracz is a Hungarian final-year undergraduate law student at the University of Szeged, Hungary. Between 2020 and 2021, she was a teacher’s assistant at the Institute of Public Law. Her work experience includes voluntary work at different non-governmental organizations as well as an internship at the Office of the National Assembly and at the Hungarian Constitutional Court. She was awarded 3rd place in one of the sections of Constitutional Law at the Scientific Students’ Associations Conference and she won the National Higher Education Scholarship in 2021. She is the Vice President in charge of Academic Activities in the European Law Students’ Association (ELSA) in Szeged.

Her current research is on the position of a neutral state within the election campaign as far as the jurisprudence of the Hungarian Constitutional Court, the Curia and the National Election Committee are concerned.

Frederik BEHRE: A Ministry of Finance?

Charting and Testing the National Constitutional Limits to EU Fiscal Integration

I am honored to have been invited to introduce my 2021 PhD-thesis titled “A Ministry of Finance? Charting and Testing the National Constitutional Limits to EU Fiscal Integration”, published in the series of the Meijers Research Institute and Graduate School of Leiden Law School (Leiden University) on the pages of Constitutional Discourse.

The EU financial and sovereign debt crisis – better known as the Eurocrisis – erupted in late 2009 with destructive force. It threatened the survival of the EU’s single currency and thereby endangered the entire European integration process. The crisis revealed that the Euro suffers from major structural deficiencies, formally embedded into the Economic and Monetary Union’s (EMU) legal framework. And despite initial emergency fixes undertaken during the peak of the crisis, it is accepted that more comprehensive reforms are necessary to remedy this deficient EMU structure. The remaining flaws are currently in the spotlight again due to the economic consequences of COVID-19. It is by now widely acknowledged that some form of EU fiscal integration is necessary to remedy these structural flaws and achieve a stable euro in the long run. To clarify, the research employs the concept of EU fiscal integration as a broad, open-ended umbrella-term that encompasses all decisions on public expenditure and revenue, including on taxation and debt-issuing. Subsequently, this open-ended term is rendered more specific based on concrete EU fiscal integration proposals. Despite the apparent necessity of EU fiscal integration, the room for such integration steps seems strictly delimited by national constitutional concerns, as was only recently illustrated by the German PSPP-judgment and the reluctant stance of the Finnish Constitutional Law Committee in relation to Next Generation EU. Metaphorically speaking, these two constitutional decisions are only the tip of a much larger iceberg of critical national constitutional views formulated against the conferral of core state powers to the supranational level – including in particular national budgetary and fiscal prerogatives that would ultimately be altered by the proposed EU fiscal integration steps. National constitutional law therefore formulates hard limits against the surrender of fiscal, budgetary or economic powers to the EU. The result is a fundamental dilemma: on the one hand, effective EU fiscal integration seems necessary to stabilize the common currency and avoid an even more costly crisis. On the other hand, fiscal integration in the EU appears to be legally impossible, given the limits imposed by national constitutional systems and the need to respect national democracy and sovereignty.

Faced with this apparent dilemma, my research conducts a comparative assessment of a selection of national constitutional limits that are applicable to EU fiscal integration in order to investigate the dilemma’s legal-constitutional parameter. The research thereby determines how similarly – or differently – national constitutional systems address the very same EU integration ambition in order to determine what EU integration steps are compatible with national constitutional law. The research is hence divided into two different conceptual parts. In the first part, the available national constitutional space for EU fiscal integration is charted and dismantled. The chosen comparative setting allows to focus on a selection of representative national constitutional approaches and to identify national constitutional best practices. These best practices could be potentially employed in other Member States to locate additional constitutional space for EU fiscal integration whilst maintaining – or even increasing – the effective protection of core constitutional concerns. In the second part of the research, the previously charted national constitutional space is tested against the most authoritative fiscal integration reform proposals debated within the EU in order to evaluate and determine their national constitutional attainability.

More specifically, as previously indicated, Part I compares a selection of national constitutional constraints that set limits to EU fiscal integration ambitions. Confronted with 27 national constitutional strategies to manage EU integration, the research is delimited to a representative sample of national constitutional approaches and limitations imposed against these integration ambitions. It identifies two principal archetypes of how constitutional systems approach EU integration. On the one hand, a range of national constitutional systems developed more rigid constitutional approaches to EU integration that formulate strict substantive limits – or as Mattias Wendel calls them “red-lines” – for EU integration, traditionally determined by strong and independent constitutional actors. As a conceptual opposite to constitutional rigidity, some Member States have adopted more flexible constitutional approaches, where the main constitutional hurdle for EU integration is political-procedural in nature. Given that EU fiscal integration proposals will have to fit the constitutional space available under rigid as well as flexible constitutional approaches, the research conducts a wide charting and dismantling of national constitutional limits in the respective systems taking Germany as study case for rigid and Finland as study case for more flexible constitutional approaches. This assessment reveals that constitutional identity limits are seemingly the most serious legal-constitutional hurdle for EU fiscal integration ambitions. Therefore, the subsequent comparative assessment focused on the French, German, Polish and Spanish constitutional identity limit to determine their possible limiting effect for EU fiscal integration. Taken together, Part I thus establishes what the current legal space for EU fiscal integration is, and to what extent more space can be created by applying the outlined constitutional best practices.

Part II then examines whether the most authoritative reform proposals for EU fiscal integration are feasible within the available constitutional space. In other words, are the proposals currently on the table legally feasible? And conversely, what form of fiscal integration is maximally achievable within the available national constitutional space? This entails first the identification of the most relevant and authoritative EU fiscal integration proposals. These proposals are subsequently broken down into core components following a two-fold functional approach, which organizes the proposed fiscal integration steps first based on substantive elements (such as the creation of a fiscal capacity or the creation of new institutional-administrative structures) and second based on the envisaged degree of EU control. Subsequently, the deconstructed EU fiscal integration steps are tested against the previously charted national constitutional space to determine their attainability. The resulting overview outlines possible constitutional conflicts and remedies to address such conflicts both at the national constitutional level as well as when devising these EMU reform plans.

Based on this analysis, the research shows that there are important and far-reaching national constitutional limitations to EU fiscal integration. At the same time, even in the most rigid national constitutional systems, legal space can be found and created for some degree of EU fiscal integration, provided it is well designed.

In order to further reduce the tension between fiscal integration ambitions and national constitutional law, without renouncing national constitutional core values, the dissertation introduces two concrete proposals:

Firstly, the research proposes to integrate the explicit and implicit benefits resulting from EU fiscal integration into the national constitutional assessment of integration. This would modernize the prevailing state-centric or competence-centric interpretation of national sovereignty and democracy, so that it better matches the actual interests of Member States and their citizens. National constitutional actors can achieve this modernized understanding by following two strategies developed within the research: On the one hand, the research identified a constitutional double standard in the interpretation and application of national constitutional law – particularly in Germany – to the disadvantage of EU integration. Hence, by applying a consistent interpretation of national constitutional law, additional constitutional space can be located for EU fiscal integration. And, on the other hand, constitutional actors can draw inspiration from constitutional best practices identified, for example, in the Finnish constitutional order.

Secondly, the thesis proposes to better adapt the current proposals for EU fiscal integration to the limits that inherently result from the nature and content of the various national constitutions and the well-founded concerns of several constitutional actors that oversee these constitutions. These adjustments can constructively take into account the identified national constitutional constraints and shape fiscal integration in such a way as to go along with and leave room for national constitutional debate. One concrete possibility for institutional amendment at the EU level to address these national concerns is the establishment of a Eurozone Forum of National Parliamentary Delegates. This Forum would be exclusively composed of national parliamentary delegates and thus integrate the national parliamentary level better into EMU decision-making, which could address the identified concerns of national constitutional authorities regarding EU fiscal integration and the required degree of national parliamentary control over budgetary and fiscal decision-making. The proposed Forum would complement the existing informal general dialogue of COSAC and could guarantee that the fiscal decision-making process at EU level is in sync with the national processes.

Ultimately, these two proposals could help to break the apparent dilemma between the need for EU fiscal integration and respect for national constitutional boundaries. Overall, EU integration is a process of continuous amendments, challenges and transformation. Increasingly, this process conflicts with traditional characteristics of the national constitutional space, which can explain the emergence of national constitutional identity limits as a new type of constitutional defense mechanism. Through these limits, national constitutional authorities attempt to contain EU integration and preserve national constitutional structures in light of an ever-deepening integration. Although the research illustrates that national constitutional systems can be receptive towards the various benefits that stem from supranational cooperation, this receptiveness is increasingly limited as EU integration advances towards the core of national systems: their constitutional identity. EU fiscal integration ambitions squarely fit into this general trend, as they propose a shift of core constitutional and political competences from the national to the supranational level. Naturally, this proposed shift is met with national constitutional resistance displayed in the various constitutional proceedings in the Member States assessed within the research. The PhD-manuscript argues that overcoming these national constitutional challenges against EU fiscal integration – but also against EU cooperation in core state areas generally – might require initiating a new chapter in national and supranational constitutionalism. After all, EU integration and national constitutional law are not opponents but can and should be mutually reinforcing allies in a globalized world.

Frederik BEHRE is a postdoctoral researcher at the Europa Institute (Leiden University). He completed his PhD-degree in October 2021, focusing in his research on a comparative assessment of the national constitutional limits to EU fiscal integration. Frederik graduated from the European Law LL.M. programme at Leiden University. Previously, he studied German Law and completed the LL.B. programme on Information Technology and Intellectual Property Law at Leibniz University (Hannover, Germany). In addition, Frederik completed the Europaeum Scholars Programme (first cohort), a PhD-programme organized by Oxford University and the Europaeum network.

In his research, Frederik is particularly interested in the interaction between national constitutional law and EU law, including a focus on comparative constitutional research. He explores the challenges and opportunities of this interaction through substantive areas of the law, such as the Economic and Monetary Union and most recently EU climate change and environmental regulation. Frederik is also interested in comparative regional integration law and the potential to exchange legal experiences across different regional integration projects globally.

Norbert TRIBL: Game of thrones? Is winter really coming?

Interview with the Presidents of the Supreme Court (Kúria) and the Constitutional Court of Hungary on the relationship between the apex courts of the Member States and the CJEU

I wrote a few weeks ago about Advocate General Bobek’s position that, under certain conditions, the ordinary courts of the Member States must disregard the decision of the Constitutional Court of the Member States and ensure that the provisions of the European law is upheld. On April 30, the President of the Hungarian Constitutional Court, Tamás Sulyok, and the President of the Kúria, András Varga Zs. gave a joint interview on the issue.

The central issue in the debate was the approach taken from the Advocate General’s position, which has not yet been adopted by the CJEU, that European Union law takes absolute primacy over the national law of the Member States. In this connection, Tamás Sulyok reminded that 28 sui generis legal systems must cooperate in the European space: the legal systems of the 27 member states and the EU itself. The CJEU has established the principle of primacy in its former case law, according to which EU law takes precedence over national law. However, the President of the Constitutional Court warned that this priority of application could not imply hegemony in any way, it cannot imply absolute supremacy, that is, there are constitutional – member state – rules against which the primacy of EU law cannot arise. This is indicated, inter alia, in Article 4 (2) TEU. According to Tamás Sulyok, the German Federal Constitutional Court’s line of reasoning, according to which the responsibility for integration is the joint responsibility of the Member States and the European Union, is decisive and to be followed position on the issue. The president stated that the responsibility for integration is also the joint responsibility of the supreme and constitutional courts of the Member States and of the CJEU, and if the responsibility is shared, the means must also be shared. According to him, this responsibility for integration is what creates the right and obligation for the constitutional courts of the Member States to examine the constitutional powers on which the joint exercise of competences by the European Union and the Member States is based.

Regarding the Advocate General’s position and its possible consequences, the President of the Kúria explained that the ordinary courts of the Member States shall recognize where the application of EU law might be necessary. In case any doubt arises regarding the need for application of EU law, ordinary courts shall turn to the CJEU. At the same time, according to András Zs. Varga, there is a consensus among the constitutional courts of the Member States that this priority cannot cover all areas, and national law and national constitutional rules also have their own place and function. According to the President, the question is that in a concrete situation who is entitled to decide whether national law or European law should be applied? He described the situation as a “game of thrones”, the resolution of which is one of the most important issues affecting the European legal order.

According to András Zs. Varga, the situation arising from the position of the Advocate General would be practically incomprehensible in the case of Hungary, as one of the defining powers of the Hungarian Constitutional Court is a real constitutional complaint aimed at annulling court decisions in conflict with the Fundamental Law. Thus, a judicial decision which would be contrary to the decision of the Constitutional Court – and consequently to the Fundamental Law – would be obliged to be annulled by the Constitutional Court.

During the interview, the participants discussed the relationship between the Kúria and the Hungarian Constitutional Court and their function. Both Presidents stressed that the two institutions have a good relationship with each other, bearing in mind that their constitutional functions are different: the Constitutional Court can only have the final word on matters of constitutional relevance, while the Kúria has the final word in general matters. (It should be noted that Advocate General Bobek’s position on the application of EU law does not distinguish between the ordinary courts of the Member States and the constitutional courts according to their function and their role in the constitutional order.)

Regarding the growing prevalence of international judicial forums, Tamás Sulyok explained that international courts do not implement political aspirations, and the constitutional courts of the Member States are not under political influence. However, we must see that in the European legal area, 27 + 1 legal systems must coexist, which necessarily gives rise to conflicts due to the differences among the systems. The President of the Constitutional Court quoted former German Constitutional Judge Ferdinand Kirchhof as saying that the European courts and the constitutional courts of the Member States should jointly implement the European legal community within the limits and powers provided for in the Treaties. In this connection, Tamás Sulyok highlighted that there is a very important emphasis on the fact that the CJEU’s power to interpret Treaties cannot constitute a hegemony of interpretation. The final word in interpretations of the Treaties is usually given by the CJEU, but the constitutional courts of the Member States cannot be deprived of the right to examine Member States ‘powers of joint exercise or EU acts based on them for compliance with Member States’ constitutional requirements. According to the President of the Hungarian Constitutional Court, the integration responsibility of the constitutional courts of the Member States is embodied in this examination, among other things: these bodies are also responsible for the integration process, similarly to the CJEU. The responsibility for integration is two-sided: the responsibility of the constitutional courts lies in ensuring that the Union’s institutions, including the CJEU itself, do not go beyond the Treaties, while the responsibility of integration institutions lies in keeping Member States within the framework of the Treaties. The integration process must therefore be guarded from two sides.

András Zs. Varga approached and emphasized the issue from the side of sovereignty: law and sovereignty are inextricably linked, only rules of conduct based on sovereignty can have enforceable, binding force, and the EU has no sovereignty. Consequently, the binding force of EU law is not guaranteed by its own sovereignty but by the joint sovereignty of the Member States. According to the President of the Kúria, the problem can be solved relatively easily in the case of Hungary, as the Fundamental Law itself states that it is the basis of the legal system, and the FL itself stipulates that EU law prevails as Hungarian law. The Constitutional Court had previously taken a similar position when it ruled that EU law is binding under the Hungarian Constitution. According to the President of the Kúria, since the Hungarian Fundamental Law guarantees the enforcement of EU law in Hungary and the authentic, erga omnes interpreter of the FL is the Constitutional Court, in the absence of an explicit constitutional provision, the decision of the Constitutional Court is binding on everyone.

During the discussion, the participants discussed the issue of the rule of law, in addition to the relationship between the supreme courts of the Member States, the constitutional courts and the CJEU, in connection with which Tamás Sulyok explained: In his opinion, one of the guarantees of the rule of law is that in Hungary the Constitutional Court exercises constitutional control over all branches of power, whereas previously it could only prevail over the legislature. In this way, it can be ensured that not only created but also applied law meets the requirements of the Fundamental Law.

Regarding the rule of law, András Zs. Varga drew attention to the fact that the rule of law in Hungary has a history dating back several centuries, for example, the Kúria itself is an 800-year-old institution. Among other things, the ancient respect for the rule of law is why the Constitutional Court and the constitutional judiciary have played and continue to play a decisive role in the operation and development of the Hungarian legal system. According to the President of the Kúria, constitutional judiciary is built into Hungary’s public law traditions, so it is important that Hungary has its own legal traditions, including its own understanding of the rule of law, which is not necessarily contrary to the European concept, it is only different from the historical perspective through which we view it. In his view, it is not possible to apply the same concept of the rule of law in all countries – or at least not with the same content – because the historical perspectives are different, however the roots of the concept being the same.

In this connection, Tamás Sulyok reminded: an integral part of Hungarian history is the struggle for independence, which has always had a political background. According to him, legal independence represents almost as much value for Hungary as effective independence. This is a special development process that is part of Hungary’s national identity. He recalled that the EU is unity in diversity, that is, diversity is also important, cannot be ignored and that anyone who emphasizes only the unity, strives for hegemony. Who also emphasizes diversity is at the root of equality in the Member States.

The President of the Constitutional Court explained that one of the greatest questions for the future is how to preserve the national traditions of each Member State within the European Union. In the case of European nations, every human being, that is, every European citizen, is born into a specific religious, historical, and linguistic environment, which can vary from nation to nation. This is a European feature, but rather the strength and not the weakness of Europe. In his view, it is important to join forces along certain values and interests, but this does not necessarily mean value preference, but at the same time it must mean development in common values, which is realized as a process. The values enshrined in the Treaties establishing the European Union are important, but they may be viewed differently by each Member State according to its historical specificities.

András Zs. Varga closed the conversation with the idea that the above issues should be debated, but not quarreled. The author of the present lines adds, however, that the discussion requires at least two actors and is a precondition for the parties to know and understand each other’s position.

Norbert TRIBL is an assistant research fellow at the University of Szeged (Hungary), Institute of Public Law as well as a consultant at the Constitutional Court of Hungary. Since 2020, he has been the editor of the Constitutional Discourse Blog.

Márton SULYOK: Who? What? When? Why? How? – Lessons from 2020

On the Pitfalls of Constitutional Discourse on Criticizing Constitutional Courts

I think there is widespread consensus now within legal academia that 2020 was an eventful year in the lives of many courts tasked with or engaging in constitutional justice. Whether it was about the constitutional review of emergency legislation necessitated by COVID-19 in Austria, or about the interpretation of certain core fundamental rights in Poland, or about interpreting the relationship of the national constitutional order and European Union law in Germany – constitutional courts have met significant criticism for standing their ground on many issues. This criticism also arrived from public institutions, state political bodies as well as international institutions, from civil society and from within the ranks of legal academia.

Constitutional discourse on the activity of these courts has always been inserted into the arena of “personal politics” in the United States, where former President Trump’s latest 2020 pick for the Supreme Court was criticized for her views on abortion and her religious beliefs. This practice of ‘constitutional politics’ – in Ackerman’s words – is coded into the fabric of the US legal and political system.

Constitutional discourse In Europe, however, more often touches upon the activity of the courts as institutions and their decisions and not as much on the individual judges – with more political than legal criticism.

Based on a few key cases selected from various European constitutional courts’ jurisprudence, I would like to reflect on some of the finer points on what should be allowed in terms of criticizing constitutional courts and their decisions.

The first tidal wave of loud criticism by European constitutional scholar and political scientists arrived shortly after the first wave of COVID-19 last spring, in May 2020, after the Karlsruhe Court (GFCC) deliberated on the so-called PSPP program of the EU, and declared an act by an EU institutions ultra vires, i.e. overstepping the competences set out in the Treaties, and therefore declared it unenforceable in Germany based on their ‘Integrationsverantwortung’, a constitutional responsibility for the European integration process, dedication to which is also demonstrated by the fact that the German legislature enacted a federal law on the issue back in 2009. The decision has met mostly negative echoes from Europe, oddly, even from the UK, and this very negative reception is also demonstrated by the fact that the EU Commission, by that time under German leadership has threatened Germany with triggering infringement proceedings as a result of the decision. May this year bring about such action, we keep wondering.

Barely a month has passed and the international stage was filled again with searchlights and voices looking for the rationale behind the 2020 amendments of the Russian constitution regarding the enforceability of decisions brought by interstate bodies, namely and most specifically, the European Court of Human Rights. Questioning the enforceability of ECtHR judgments is nothing new under the Russian sun, ever since they submitted to the Court’s jurisdiction ion 1998, but more recently, two cases contributed to further refining constitutional rules regarding these decisions that lead to an opinion being adopted by the Venice Commission in June 2020. Back in 2016-2017, the judgments of the ECtHR in Anchugov and Gladkov v. Russia and the infamous Yukos case (OAO Neftyanaya Kompaniya Yukos v. Russia) triggered previous amendments that created powers for the Russian Constitutional Court (RCC) to declare them unenforceable by reason of incompatibility with the constitutional foundations of the Russian Federation. Just as it was lurking in the background of the German PSPP decision, considerations of budgetary expenditures and national economy directed the RCC to declare that the certainty of enforcing these decisions has been brought into question. The quite substantial amount of just satisfaction awarded to the shareholders of the now dismantled Yukos (namely 1.866.104.634 EUR) – owned by disgraced businessman Mikhail Khodorkovsky – was the supposed origin for “sounding the alarm bells”. Last summer, the Venice Commission turned toward this Russian issue with careful criticism, and also touched upon other aspects of the reform regarding the replacement of constitutional judges, shifting the relevant power from the quorum of the RCC to the Federation Council, the upper house of the national legislator. More on the legislative influencing of the composition of constitutional courts later, when discussing the Ukrainian reform in this regard.

It turned out a couple of months later that conservative stances on abortion not only trigger social movements in America when a new debate was sparked in Europe in the fall of 2020. In their decision on 22 October 2020, the Polish Constitutional Tribunal (PCT) issued what cannot otherwise be characterized as an unconventionally conservative interpretation of the fetal rights to life. Their decision is sometimes labeled as one rendering “eugenic abortion”unconstitutional. All this in an era, by when the traditionally very conservative Irish constitutional system also changed toward a more liberal approach, allowing for the first time to legislate on the termination of pregnancy (in 2018) based on conditions likely to lead to the death of the fetus or risk to the life or health of the mother. Interestingly, also, in the Hungarian regulation currently in force, largely with the same rules since 1993, the provisions protect the mother and allow room for discretion regarding termination of pregnancy in case the fetus suffers from a deficiency incompatible with life or the probability of the genetic and teratological damage to the fetus reaches 50% via prenatal diagnostic procedures. (Articles 6-7 of Act LXXXIX of 1992 on the protection of fetal life). The publicity of the Polish decision was only partly due to its subject matter, it has also been reinforced by the echo chamber and the context of those EU proceedings that are in motion regarding Poland. In such an environment, the PCT has met sharp criticism from both legal academia and public opinion – involving civil society organizations, calling the attention of the leaders EU institutions to the fact that the disobedience of Polish courts has reached the apex and the EU’s fundamental values are yet again endangered by judicial review.

To finish up, the already mentioned Ukrainian case shall also be discussed, leading to the most important conclusions on the topic of this ‘2020 year in review’ of constitutional jurisprudence. The sheer absurdity of some aspects of the case will – I imagine – provide fertile ground for constitutional scholars to analyze for months to come, and the Venice Commission also was cognizant of this. They adopted an urgent opinion on 11 December 2020 following President Zelensky’s request to review the 27 October decision of the Ukrainian Constitutional Court (UCC), which – based on an initiative by MPs declared the unconstitutionality of most of the criminal anti-corruption legislation in the country. The President, who by the way is partly in charge of appointing UCC judges (together with the Parliament and the Judicial Council) also asked the Commission to form an opinion regarding the status of the judges involved in decision-making on the grounds that they were seemingly in a conflict of interest when casting their vote, thereby violating core principles of due process. Besides the many aspects of the year-long 2020 Ukrainian judicial reform, it is important to point out that four of the quorum of the UCC involved in the decision attacked have been affected by challenges from President Zelensky as a party to the proceedings for their direct involvement in national anticorruption investigations based on their failure to provide appropriate accounts of their finances. Despite these challenges, the judges continued to participate in decision-making, which lead to a show of force by the positive legislator toward the negative legislator, i.e. by the Parliament toward the UCC. A couple of draft laws were introduced aiming at declaring the attacked decision of the UCC void by reason of it being arbitrary and violating the rule of law and in this regard reinstating the effect of those criminal provisions that have been declared unconstitutional. What is more, and here comes the punchline, the possibility and the new criteria for the selection of new judges was also included in the draft, alongside a freezing of finances provided for the UCC’s operation and increasing the quorum necessary for decision-making.

Obviously, this case greatly surpasses any relevant professional or public criticism of the work of the constitutional court previously mentioned, as here the source of the attack is a state actor, and the motivation of the attack is political. The rule of law standard mentioned above is also applied by the Venice Commission, leading to their conclusion that it is a severe violation of the principle and others flowing therefrom if political institutions, such as the Parliament obstruct institutions created for the constitutional review of legislation. They point out, and rightly so, that the criticism of the operation of these institutions is allowed, but any arriving from actors exercising public power shall be exercised with the utmost restraint. It undoubtedly creates an unconstitutional situation if a law puts an end to the mandate of constitutional judges and a decision of a constitutional court is rendered void. This way, in practice, legislative checks and balances become meaningless.

Through actions similar to what has been described above will and could constitutional courts really become captured or packed. These are two words that have recently been fancied in Europe to depict national ‘outlier’ constitutional courts based on American terminology evolving from the deeply-rooted theory of capture in administrative law. Those politicians, professional and medias that set out to become voices critical of constitutional courts, shall heed the words of the Venice Commission’s urgent opinion on this Ukrainian matter, and it might even be worth to think along those lines a little further ahead: Such criticism of constitutional courts in constitutional discourse which rests solely on political grounds and intends to limit constitutional protection without the requisite restraint and well-rounded professional justification with not only erode public trust in constitutional justice, but also the main function and raison d’être of these institutions as well.

Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: