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Thursday, July 4, 2013

The Checks and Balances of Federalism: Hungary vs. the European Parliament

One of the benefits of federalism is the checks and balances between the two systems of government existing in a federal system—that of the states and that of the federal government. That is to say, federalism can be thought of as a governmental system that contains two systems of government—that of the states and that of the federation. Either of these systems can go too far, and the other system should have the wherewithal to pull the other back without compromising its viability. This is why the consolidation of power in one system (e.g., the U.S. Federal Government) compromises the viability of a federal system at least with respect to its checks and balances. One other point: the two systems in a federal system are on the same level; that is, one is not “above” the other. Hence, the supremacy clauses in the E.U. and U.S. refer only to competencies or domains assigned to the federal government.
As an example of the checks and balances, Hungary passed a resolution in July 2013 “condemning” the European Parliament’s report critical of Hungarian Prime Minister Viktor Orban and his party curbing the powers of the state’s constitutional court, weakening the independence of the state’s judiciary, and limiting media freedom and the rights of churches and minorities (including the homeless).[1] In recommending the establishment of “an independent body to protect citizens’ rights and avoid creating double standards,”[2] the E.U.’s parliament sought to check excesses that would then be possible at the state level in Hungary. The parliament’s response is thus entirely consistent with federalism.
                                                     The Joys of Being Checked and Balanced
Hungarian Prime Minister Viktor Orban during a debate in the E.U. Parliament, being "checked and balanced" by the federal legislature. 
The ensuing resolution by the Hungarian state legislature condemning the federal parliament may not be so consistent; en fait, requiring “the EU to respect our rights” may imply that because the “Hungarians joined the European Union of our free will,” the state continued to be sovereign. In other words, the reaction of the state legislature suggests that any check on the state government by the federal system is invalid because Hungary requires the E.U. institutions to respect its rights. This stance handicaps the viability of the federal system in terms of the checks and balances that it can potentially deliver.
As a “reality check” for the Hungarian government, the state has been semi-sovereign since it became an E.U. state. Direct effect (i.e., the ability of a state’s citizens to use E.U. law in a state court—something that does not apply to international law), qualified majority voting in the Council of Ministers and the E.U. Parliament (which correspond to the U.S. Senate and House, respectively), the supremacy clause enunciated by the European Court of Justice in Van Lend and Loos (1963) and Costa (1964), and the exclusive competencies (i.e., domains of authority) of the E.U. are all indicative of a transfer of governmental sovereignty from one of the systems of government (i.e., the state governments) to the other (i.e., the federal government) in the European Union.
Therefore, in acting on the basis of the basic principles of the E.U. (considered primary law), the European Parliament did not violate the rights of the Hungarian government in proposing a means to defend the rights of minorities in Hungary. Put another way, the Hungarian government’s claim that the European Parliament was going too far in encroaching on the remaining sovereignty of the state is erroneous. In fact, the reaction itself suggests that the European Parliament was providing a check and thus acting in line with federalism.

1. Veronika Gulyas, “Hungary Resolution Slams European Parliament Criticism,” The Wall Street Journal, July 4, 2013.
2. Veronika Gulyas, “Hungary Resolution Slams European Parliament Criticism,” The Wall Street Journal, July 4, 2013.