1 Inter-Governmental Relations and Multi- Level Governance: Entering the regulatory- administrative state Claudio Radaelli Professor of Political Science University of Exeter UK Contribution to the round-table of the 4 th TAD conference, University Bocconi, Milan, June 2008

2 The administrative-regulatory state  US: federalism but also horizontal diffusion (agencies, President, Congress)  EU: “regulatory state” is vertical: Commission vs. Member States; EU law vs. national law  So there are multi-level or IGR implications in both cases, but they are not the same

3 Argument  Comparison of meta-regulatory or constitutional aspects of the administrative state. Comparison is between the US and the EU. In the second part of the paper we will also say something about the EU and national administrations  It shows how the problem of getting the administrative- regulatory state in line with constitutional values is the same in both systems  However, the solutions are quite different  To see this, let us think about the transformations brought about by the administrative-regulatory state in the US and the EU

4 Caveat In this paper, “constitution” does not necessarily mean a formal constitution or the EU Treaty of Lisbon We are interested in constitutional democratic values (language of rights, legitimacy, balance between an institution and another, authorization of public action and so on) Similar to the idea of Constitution put forward by N. Walker in his article in Modern Law Review

5 US: the three transformations of democracy  Delegation from Congress to Agencies  Growth of the administrative state  Various forms of constitutional retrofitting to the values of the US Constitution (D Rosembloom)

6 US constitutional (or meta) regulation of the adm. state 1. Congressional retrofitting 2. Judicial retrofitting Supreme Court and DC Circuit 3. Presidential retrofitting: Executive orders on regulatory oversight

7 Congressional retrofitting  APA, section 553 (giving reasons requirment)  FACA and NRMA on participation in rule-making  Congressional supervision of administration: Government performance and results act 1993  Transparency: FOIA 1966, Sunshine Act 1976 Source: David Rosenbloom 2000, PAR

8 Judicial retrofitting  Remedial law  Individuals can sue agencies for violations of their rights  Supreme Court

9 Presidential oversight  Executive orders on RIA (Hahn and Tetlock’s review article in Journal of Economic Perspectives, 2008)  Role of OIRA-OMB (Moe and Wilson)  Emergence of the unitary executive (Blumstein) and the Presidential Administration (Kagan)  Institutionalisation of regulatory oversight (William West)

10 The EU: two transformations, not three  1 st The rise of the European Commission as regulator and the ECJ creation of a community of courts  2 nd Europeanization  Re-alignment of the European regulatory state with the constitutional values of domestic democratic politics: this is largely incomplete (no APA for Europe for example, no constitutional discussion on controls on law-making such as the EU RIA 1, etc. (1) For an exception see Anne Meuwese 2008

11 Implications  EU: policy without politics  National level: politics without policy We can therefore revisit this argument (made by Peter Mair and recently Vivien Schmidt) through new lenses if we take the administrative-regulatory state perspective

12 Why a third transformation has not as yet materialised in the EU  European Commission does not implement policies directly – the national bureaucracies implement. So implementation involves 27 different systems of administrative law  Arguably it would be difficult to imagine a system of rights and other constitutional retrofitters that applies throughout the EU  Discussion on a possible APA for Europe in the 1990s (Majone, Dehousse, Joerges)  Different understandings of federalism across the two sides of the Atlantic (cooperative federalism and competitive federalism)

13 Exploring the role of national administrations in implementation  National bureaucracies are the agents of implementation of EU policies  The alignment between UK and the EU model of implementation and delivery: how public action is re-authorised in output and partially in input via better regulation  Fr, Italy locked in a model of justification and legitimation of public action that is based on the political (parliamentary) input  New member states: more problems…. Source:Alessia Damonte (2007)

14 Conclusions  Comparison shows that the EU has just started a process of meta-regulation of the administrative state based on constitutional values  Comparison does not show that the US got it right but the Europeans did not: this paper has looked only at design not at the final outcomes of US constitutional retrofitting  Lack of retrofitting compounds the constitutional of the EU: arguably, this is an accountability deficit rather than a legitimacy deficit (in line with Majone, 2005)  Solutions for the EU don’t have to be necessarily in the form of Constitutional Treaties (back to Walker’s idea of constitution)

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