"Comparative Federalism and the Issue of Commandeering"

Michigan Law Authors
Publish Date
The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union
Publication Type
Book Chapter

Examines the difference between the European and American perceptions of the effects and desirability of commandeering (the issue of binding commands by central government that force its component states to take regulatory action with respect to private parties) as a mechanism of central–component system interaction. Whereas the USA constitutional jurisprudence prohibits commandeering, the founding charters of the European Union and Germany permit such action. In successive sections, the chapter explores the relevant political and institutional background against which commandeering takes place in the USA, the EU, and Germany. It discusses (1) commandeering in international law and the apparent paradox in American views; (2) the formal supremacy of central law within component legal systems; (3) the ‘viscosity’ of the central legal system, i.e., the intensity of the obligation to adhere to the central legal system's norms; (4) the specificity of commands issued by central to component units of government (the directive as a limited tool of commandeering); (5) the corporate representation of component state systems within the law‐making bodies of central systems; and (6) the relative completeness and effectiveness of the levels of governance and the prominent alternatives to commandeering in each system, with specific reference to central government dependence (or not) on component state resources.

Full Text