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Inter-Governmental Relations and Multi-Inter-Governmental Relations and Multi-Level Governance: Entering the regulatory-Level Governance: Entering the regulatory-

administrative stateadministrative state

Claudio RadaelliClaudio RadaelliProfessor of Political ScienceProfessor of Political Science

University of Exeter UKUniversity of Exeter UKContribution to the round-table of the 4Contribution to the round-table of the 4thth TAD TAD

conference, University Bocconi, Milan, 12-14 June conference, University Bocconi, Milan, 12-14 June 20082008

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The administrative-regulatory stateThe administrative-regulatory state

US: federalism but also US: federalism but also horizontalhorizontal diffusion diffusion (agencies, President, Congress)(agencies, President, Congress)

EU: “regulatory state” is EU: “regulatory state” is verticalvertical: : Commission vs. Member States; EU law Commission vs. Member States; EU law vs. national lawvs. national law

So there are multi-level or IGR So there are multi-level or IGR implications in both cases, but they are not implications in both cases, but they are not the samethe same

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ArgumentArgument ComparisonComparison of meta-regulatory or constitutional aspects of meta-regulatory or constitutional aspects

of the administrative state. Comparison is between the of the administrative state. Comparison is between the US and the EU. In the second part of the paper we will US and the EU. In the second part of the paper we will also say something about the EU and national also say something about the EU and national administrationsadministrations

It shows how the It shows how the problemproblem of getting the administrative- of getting the administrative-regulatory state in line with constitutional values is the regulatory state in line with constitutional values is the same in both systemssame in both systems

However, the However, the solutionssolutions are quite different are quite different To see this, let us think about the To see this, let us think about the transformationstransformations

brought about by the administrative-regulatory state in brought about by the administrative-regulatory state in the US and the EUthe US and the EU

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CaveatCaveat

In this paper, “constitution” does not necessarily In this paper, “constitution” does not necessarily mean a formal constitution or the EU Treaty of mean a formal constitution or the EU Treaty of LisbonLisbon

We are interested in constitutional democratic We are interested in constitutional democratic values (language of rights, legitimacy, balance values (language of rights, legitimacy, balance between an institution and another, authorization between an institution and another, authorization of public action and so on)of public action and so on)

Similar to the idea of Constitution put forward by N. Similar to the idea of Constitution put forward by N. Walker in his article in Walker in his article in Modern Law ReviewModern Law Review

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US: the three transformations of US: the three transformations of democracydemocracy

DelegationDelegation from Congress to Agencies from Congress to Agencies Growth of the Growth of the administrative stateadministrative state Various forms of Various forms of constitutional retrofittingconstitutional retrofitting

to the values of the US Constitution (D to the values of the US Constitution (D Rosembloom)Rosembloom)

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US constitutional (or meta) US constitutional (or meta) regulation of the adm. stateregulation of the adm. state

1.1. Congressional retrofittingCongressional retrofitting2.2. Judicial retrofitting Supreme Court and Judicial retrofitting Supreme Court and

DC CircuitDC Circuit3.3. Presidential retrofitting: Executive orders Presidential retrofitting: Executive orders

on regulatory oversighton regulatory oversight

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Congressional retrofittingCongressional retrofitting APA, section 553 (giving reasons requirment)APA, section 553 (giving reasons requirment) FACA and NRMA on participation in rule-makingFACA and NRMA on participation in rule-making Congressional supervision of administration: Congressional supervision of administration:

Government performance and results act 1993Government performance and results act 1993 Transparency: FOIA 1966, Sunshine Act 1976Transparency: FOIA 1966, Sunshine Act 1976

Source: David Rosenbloom 2000, PARSource: David Rosenbloom 2000, PAR

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Judicial retrofittingJudicial retrofitting

Remedial lawRemedial law Individuals can sue agencies for violations Individuals can sue agencies for violations

of their rightsof their rights Supreme Court Supreme Court

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Presidential oversightPresidential oversight Executive orders on RIA (Hahn and Executive orders on RIA (Hahn and

Tetlock’s review article in Journal of Tetlock’s review article in Journal of Economic Perspectives, 2008)Economic Perspectives, 2008)

Role of OIRA-OMB (Moe and Wilson)Role of OIRA-OMB (Moe and Wilson) Emergence of the unitary executive Emergence of the unitary executive

(Blumstein) and the Presidential (Blumstein) and the Presidential Administration (Kagan)Administration (Kagan)

Institutionalisation of regulatory oversight Institutionalisation of regulatory oversight (William West)(William West)

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The EU: two transformations, not The EU: two transformations, not threethree

11stst The rise of the European Commission as The rise of the European Commission as regulator and the ECJ creation of a community regulator and the ECJ creation of a community of courtsof courts

22ndnd Europeanization Europeanization Re-alignment of the European regulatory state Re-alignment of the European regulatory state

with the constitutional values of domestic with the constitutional values of domestic democratic politics: this is democratic politics: this is largely incomplete largely incomplete (no (no APA for Europe for example, no constitutional APA for Europe for example, no constitutional discussion on controls on law-making such as discussion on controls on law-making such as the EU RIAthe EU RIA11, etc., etc.

(1)(1) For an exception see Anne Meuwese 2008 For an exception see Anne Meuwese 2008

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ImplicationsImplications

EU: policy without politicsEU: policy without politics National level: politics without policyNational level: politics without policy

We can therefore revisit this argument We can therefore revisit this argument (made by Peter Mair and recently Vivien (made by Peter Mair and recently Vivien Schmidt) through new lenses if we take Schmidt) through new lenses if we take the administrative-regulatory state the administrative-regulatory state perspectiveperspective

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Why a third transformation has not Why a third transformation has not as yet materialised in the EUas yet materialised in the EU

European Commission does not implement European Commission does not implement policies directly – the national bureaucracies policies directly – the national bureaucracies implement. So implementation involves 27 implement. So implementation involves 27 different systems of administrative lawdifferent systems of administrative law

Arguably it would be difficult to imagine a system Arguably it would be difficult to imagine a system of rights and other constitutional retrofitters that of rights and other constitutional retrofitters that applies throughout the EUapplies throughout the EU

Discussion on a possible APA for Europe in the Discussion on a possible APA for Europe in the 1990s (Majone, Dehousse, Joerges)1990s (Majone, Dehousse, Joerges)

Different understandings of federalism across Different understandings of federalism across the two sides of the Atlantic (cooperative the two sides of the Atlantic (cooperative federalism and competitive federalism)federalism and competitive federalism)

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Exploring the role of national Exploring the role of national administrations in implementationadministrations in implementation

National bureaucracies are the National bureaucracies are the agentsagents of of implementation of EU policiesimplementation of EU policies

The alignment betweenThe alignment between UK and the EU UK and the EU model of model of implementation and delivery: how public action is implementation and delivery: how public action is re-authorised in output and partially in input via re-authorised in output and partially in input via better regulationbetter regulation

Fr, ItalyFr, Italy locked in a model of justification and locked in a model of justification and legitimation of public action that is based on the legitimation of public action that is based on the political (parliamentary) inputpolitical (parliamentary) input

New member statesNew member states: more problems….: more problems….

Source:Alessia Damonte (2007)Source:Alessia Damonte (2007)

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ConclusionsConclusions Comparison shows that the EU has just started a Comparison shows that the EU has just started a

process of meta-regulation of the administrative state process of meta-regulation of the administrative state based on constitutional valuesbased on constitutional values

Comparison does not show that the US got it right but Comparison does not show that the US got it right but the Europeans did not: this paper has looked only at the Europeans did not: this paper has looked only at design not at the final outcomes of US constitutional design not at the final outcomes of US constitutional retrofittingretrofitting

Lack of retrofitting compounds the constitutional of the Lack of retrofitting compounds the constitutional of the EU: arguably, this is an accountability deficit rather than EU: arguably, this is an accountability deficit rather than a legitimacy deficit (in line with Majone, 2005)a legitimacy deficit (in line with Majone, 2005)

Solutions for the EU don’t have to be necessarily in the Solutions for the EU don’t have to be necessarily in the form of Constitutional Treaties (back to Walker’s idea of form of Constitutional Treaties (back to Walker’s idea of constitution)constitution)

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Thank youThank you

This presentation is based on a research This presentation is based on a research project on regulatory impact assessment project on regulatory impact assessment in comparative perspective funded by the in comparative perspective funded by the Economic and Social Research Council of Economic and Social Research Council of the UKthe UK

C.Radaelli@ex.ac.ukC.Radaelli@ex.ac.uk