Foreign Relations Federalism in the United States and the European Union Hierarchy versus pluralism, and the pitfalls of ‘as if’ constitutionalism

摘要

Taking its cue from the recent rise in antagonism between the European Union institutions and Member States, this paper comparatively examines the constitutional framework within which the European Union and the United States engage in foreign relations. The picture that emerges is one in which hierarchy (US) is contrasted with pluralism (EU). This contrast is an invitation for students of EU foreign relations law to revisit certain deeply held assumptions, in particular those underlying the constitutional paradigm through which EU foreign relations law has been studied in recent decades, both in its traditional hierarchical and in its more recent pluralist incarnations. An exploration of the US experience points to the limits of what legal argument and litigation can achieve in this area; it highlights the importance of structural features of the constitutional framework, such as the role of fiscal and military capacities, and points to the need to be mindful, including when interpreting the EU Treaties, of the wider geopolitical environment within which the EU is required to operate. The paper argues that the EU today is caught in a pluralist predicament, between a supranational desire to consolidate, and increased Member State resistance against doing so. To escape from this deadlock, increased mutual trust is required. The path towards such increased trust is not only legal, but also political; it requires sustained political action at both EU and Member State level.