The German Federal Constitutional Court and European Judicial Politics

With its decision on the ratification of the Lisbon Treaty, the German Federal Constitutional Court (FCC) has handed over another landmark ruling on European integration. The ruling made Germany's ratification of the Treaty conditional upon the passage of a new law giving the Bundestag greater oversight of European affairs. This and the consequences of stronger parliamentary oversight for the German government and the way it conducts negotiations at European level have been the focus of most early comments on the decision. No less important, however, are the ruling's potential repercussions on European judicial politics. Coming after a series of highly controversial judgments by the European Court of Justice, the FCC's Lisbon decision is clearly meant as a warning to Brussels and, above all, Luxembourg. The decision could undermine the Court of Justice's authority and encourage non-compliance on the part of national courts, thus bringing about a constitutional crisis at European level. Alternatively, the decision may compel the Court of Justice to reconsider some of the most controversial aspects of its activist jurisprudence and to exert more restraint in the foreseeable future.     

Judicial Europeanisation: The Case of Zambrano in Ireland

The Court of Justice of the European Union is an important motor of integration and is said to be particularly strong in those cases where the Council shows an inability to act. What is the relevance of the Court to social Europe? Europeanisation studies analyse how member states change due to European integration. Judicial Europeanisation is a topic that is under-explored in the literature. Using a case-study approach, this paper analyses the Zambrano case, one of the most notable recent cases of judicial activism of the CJEU with regard to EU citizenship rights. Although the literature often assumes that member states only reluctantly embrace the requirements of case law, the Irish government immediately obliged its administration to implement the required changes. Analysing this case in greater detail and comparing it to the responses of several other member states promises to shed some light on the under-explored question of how Europeanisation through case law proceeds, and what the Court may contribute to social Europe.     

The Federal Judiciary and Northern School Desegregation: Law, Politics, and Judicial Management

Using a three-tier analysis, this article examines how the interplayof political and legal factors has influenced the developmentof school desegregation policy in Michigan and Ohio. The authorconcludes, among other things, that the district courts, theSixth Circuit Court of Appeals, and the U.S. Supreme Court aresensitive to the influences of politics and legalism, but thatthe responses of the three kinds of federal courts are different.Recognizing a constitutional imperative to eradicate segregation,district courts have emphasized the participation of electedofficials and affected community groups in the remedial process.Because of isolation and low visibility, the Sixth Circuit hastended to pursue a more tenacious policy course than eitherthe district court or the Supreme Court. Meanwhile, the U.S.Supreme Court has generally championed the cause of local officialsby attempting to balance the interest of eliminating segregationwith that of protecting the integrity of state and local decisionmakers.     

司法权与法律解释权辨析

司法权是法官在个案中行使的以裁判权为重心的权力,法律解释权是法官在个案中行使的对所适用的法律和所要处理的案件事实进行解释的权力,法律解释权属于司法权的一部分。司法权与法律解释权是同一种性质的权力,二者有许多相同之处。但法律解释权是一种相对独立存在的权力,它与司法权有一定的区别。厘清二者的关系,才能正确适用法律,保证司法公正。     

Performance Funding in Federal Agencies: A Case Study of a Federal Job Training Program

Our case study highlights important details that enter into developing performance contingent budgeting schemes—details that do not emerge in more general discussions of the subject—and shows how the handling of these details can be crucial to these schemes' success. We study a federal job training program that gives state and local decision makers discretion over the program's operation, but through performance funding holds them accountable for achieving specific objectives. We find that states' modifications to the scheme's construction produced over time highly individualized performance funding schemes that likely varied in their effectiveness.     

Political Economy of Grant Allocations: The Case of Federal Highway Demonstration Grants

This article examines the political economy of U.S. federalhighway demonstration grant allocations. Demonstration grantsare a rapidly growing segment of federal highway grants directlyearmarked for a congressional district by Congress, unlike themajority of highway grants where Congress determines a formulaand allocates funds accordingly to states. Our empirical analysis,considering the period 1983–2003, suggests that a state'sability to attract demonstration project grants is positivelyinfluenced by its contributions to the highway trust fund andpolitical variables, and it is not affected by the formula highwayaid and vehicle miles traveled in a state.     

Federal Constitutional Power Over the Economy

This article examines the non-fiscal powers of the federal Parliamentof Australia to make laws to control the economy. Although thecommerce power in Australia was inspired by that in the U.S.Constitution, the High Court of Australia has not followed theliberal interpretation of the commerce power adopted by theU.S. Supreme Court since 1937. However, other express federalpowers, particularly those relating to corporations and externalaffairs, have been used for purposes that in the United Stateswould be encompassed by the commerce power. While the AustralianParliament does not have the degree of power possessed by Congress,the judicial trend is toward broader interpretations of federalpowers. Also discussed is Section 92 of the Australian Constitution,which declares that "trade, commerce and intercourse among theStates shall be absolutely free." This provision, which limitsboth federal and state power, was interpreted for many decadesas embodying the principle oflaissezfaire. In 1988 the HighCourt of Australia held that its scope is limited to prohibitinglaws that discriminate against interstate commerce with a protectionistpurpose or effect.     

Budgetary Consequences of Selling Federal Power Assets

This article reports on an analysis of the long-term budgetary effects of selling federal power programs at market value. The analysis looks at changes in future budgetary receipts and costs for power operations and at changes in future federal taxes as a result of new ownership. Under current rate-setting policy, federal agencies must generate a future operating surplus (and hence, budgetary income) worth about $46 billion in today's dollars to repay past capital investments. With optimistic assumptions about rising power rates, market values for all federal power assets (including the power-generation assets of the Bureau of Reclamation and the Corps of Engineers) could be as high as $62 billion. In that case, their sale would produce long-term budgetary savings of about $16 billion, in today's dollars. The analysis also notes that budgetary savings are not a measure of the gains in economic efficiency from privatization. Such considerations as efficiency or fairness to particular groups will be important in any debate about the future of federal power programs.     

The Fiscal Consequences of Changing Federal and State Revenue Policies: The Case of Small Oregon Cities

This article examines the fiscal consequences for twelve, smallOregon cities of recent changes in federal and state intergovernmentalrevenue policies. Many small local governments have experienceddouble revenue reverses in recent years—reductions inown-source revenues because of economic decline as well as decreasesin intergovernmental revenues, especially federal aid. The twelvesmall cities are compared with all 241 cities in Oregon andthe 136 Oregon cities in the 1,000 to 49,999 population range.Using aggregate and interview data, a major finding is thatalthough stabilization and/or decline in federal-state revenuesharing and entitlement program funds have accentuated difficultlocal revenue situations, economic decline has been the moreimportant contributor to the fiscal stress of the twelve smallmunicipalities. Most of the twelve cities had limited fiscalcapacity—as indicated by low assessed property valuations—makingit difficult to produce sufficient revenue to meet basic publicservice needs. These cities were also unable to get citizenapproval of increases in property taxes.     

Mini-Symposium: The Federal Executive Budget

James Edwin Kee, Introduction
Bernard Pitsvada, The Executive Budget: An Idea Whose Time Has Passed
Naomi Caiden, Comments
Louise Fisher, Comments
Lance T. LeLoup, Comments     

Federal Administrative and Judicial Oversight of Medicaid: Policy Legacies and Tandem Institutions under the Boren Amendment

Because of the active role assumed by the courts in Medicaidnursing facility reimbursement, and because that role changedover time, federal intervention in this area provides a usefulwindow through which to examine the role of the federal judiciaryin oversight of state health policy making. Findings supportthe proposition that because judicial influence extends beyondprogram outcomes to include the organizational structure andbeliefs of key stakeholder groups, the effects of case decisions,and the statutes under which they are litigation, may be deeperand longer lasting than their usefulness as a litigation tool.Findings also support the proposition that neither the executivenor the judiciary acts in isolation but instead they serve astandem institutions guiding federal oversight of state policymaking. Data for this analysis derive from archival documents,secondary sources, and 101 in-depth interviews.     

Strategic Considerations and Judicial Review: The Case of Workers' Compensation Laws in the American States

Whether state supreme court justices votesincerely or strategically depends upon:(1) justices' sincere preferences; (2)ideological differences between a justiceand other state actors, which affect the willingness of actors tosanction justices; and (3) institutionalrules and political settings, which affect the ability of otheractors to retaliate against justices forobjectionable decisions. Since institutional rules do notvary for the U.S. Supreme Court but do forthe 50 states, state supreme court cases are thebest site for testing conditions underwhich justices are likely to vote strategically. Moreover,amendment of state constitutions isrelatively easy, which permits systematic examination of theextent to which strategic behavior manifests in judicialreview cases. Using data on docketing anddecisions on workers' compensation laws for1970–1993, this research offers a broaderunderstanding of strategic behavior byjudges.     

Bureaucratic Professionalization and the Limits of the Political Control Thesis: The Case of the Federal Trade Commission

This article explores the political control thesis in light of the literature on bureaucratic politics and agency professionalization. It argues that existing studies of political control have been limited by a failure to analyze the impact of organizational factors on policy change. The article tests political-control and bureaucratic hypotheses through an analysis of changing enforcement priorities at the Federal Trade Commission, The results suggest that the growing role of economists in the agency, rather than congressional oversight or presidential appointments, is critical in explaining the changing antitrust priorities of the Federal Trade Commission.     

Changes in Federal Aid and City Finances: A Case Study of Oregon Cities

Federal aid was not found to stimulate spending for cities inOregon during 1984–1989. Oregon cities relied primarilyon their own-source revenues to finance spending increases.The exception was capital spending, where receipt of federalaid in 1989 positively influenced the rate of spending change.This most likely reflected lower spending by those cities thatdid not receive competitive federal grants. The amount of federalaid received is greatly influenced by the grants skill availableto the community. Growth in total direct current spending wassignificantly associated with increases in user fees and charges.A closer look at specific spending categories revealed a hierarchyof reliance on cities' own-source revenues. Cities increaseduser fees and other benefit charges where possible, and seeminglyonly resorted to property-tax increases when these other revenueswere inappropriate.     

Globalisation, Marketisation and Power: The Swedish Case of Institutional Change

Globalisation is often thought to threaten the autonomy of national policymaking and generous welfare policies. This article examines two decades of policy change in Sweden, often viewed as a prime example of a fully fledged welfare state. The analysis is focused on reforms within the welfare sector, which is compared with three other important areas – credit markets, the labour market, and infrastructure policy. These areas can all be seen as crucial aspects of the Swedish social democratic model.  The findings can be summarised in three parts. First, seeing the credit–market deregulation as the first phase of the internationalisation of capital in Sweden lends some support to the idea of globalisation as the result of political decisions rather than a structural change caused by technical change. Second, during the last two decades, there have been signs of marketisation of the Swedish public sector. However, this analysis does not give support to the simple hypothesis of globalisation. There are quite large variations both between and within policy areas, variations that are not easily related to international integration. Third, marketisation involves a shift in political power. An overall effect is that the government has lost some of its former direct influence. However, behind the façade of the invisible market we find the same actors as before influencing policy. Globalisation can have tremendous effects on power. Whether or not this will be the case is first and foremost the result of political decisions and individual desires.     

The 1983 Federal Budget

Editors' Note: The following material is taken, with permission of the author, from the first chapter of The Brookings Institution's Setting National Priorities: The 1983 Budget.     

Federal Aid and Afro-American Political Power in Three Mississippi Towns

Since 1967 Afro-Americans have made great strides in electoralpolitics in the rural South. However, comparable progress inacquiring material resources to satisfy escalating demands fromnewly mobilized constituents has not been achieved in many instances.This article examines the experiences of three, rural, Mississippitowns which elected their first Afro-American mayors in the1970s. In responding to the separate demands of representation(direct citizen benefits) and institutionalization (maintenanceof Afro-American leadership), the new mayors made successfuluse of various federal aid programs. While helping the mayorsto improve public services and construct new community facilities,the federal aid did not contribute to the more long-range goalof institutionalization. The continuing problem for such localareas under Afro-American political control is the lack of independentresources.     

The Federal Civil Service: The Demise of an Institution

Recent changes in federal personnel practices, ostensibly for the purpose of "performance," serve to deprive the civil service of its moral content and hence to undermine its viability as an institution.     

Non-violent Erotica: A Case Study in an Issue Network within the Australian Federal Parliament

The federal government's attempt to replace the X classification for videotapes with a Non-violent Erotica (NVE) classification category was rejected through the intervention of an issue network within the federal parliament. By assessing this process, we can see how individuals can form issue networks and successfully alter a policy proposal.     

How Weak Recognition and Measurement in the Federal Budget Encouraged Costly Policy: The Case of "Supervisory Goodwill"

The budget process is the primary means by which federal policymakers allocate resources. The failure of the budget to recognize and measure the full cost of federal programs encourages the Congress and president to skew resource allocation toward policies whose budgetary costs are underestimated. These "low-cost" policies often increase costs to taxpayers without providing taxpayers with benefits. Recent examples of this phenomenon are found in the "supervisory goodwill" cases. This article reviews these cases, the budgetary weaknesses they identify, the influence these weaknesses had on legislators, and the unnecessary costs for taxpayers that result from the supervisory goodwill policy. Specifically, the federal budget did not recognize the cost that would result from encouraging financial institutions to assume the assets and liabilities of insolvent savings and loans. The budget's recognition of costs failed a second time by not recording expenditures when the government abrogated its contracts with acquirers. Both actions raised costs to taxpayers unnecessarily. In addition to analyzing budgetary weaknesses and their potential costs, this article also reviews two proposed budgetary reforms that could address the budgetary failures highlighted by the supervisory goodwill cases.