The federalism dimension of proportionality

EU Treaties contain an arsenal of purpose-defined and ambiguous competences that are enjoyed by EU institutions, yet devote little attention to the restraining impact of EU competences on Member States' autonomy and policies. While the focus has traditionally been on subsidiarity to deal with competence issues, the judgment of the Bundesverfassungsgericht in Weiss revitalises the discussion on the potential of proportionality to guide competence issues. This inquiry seeks to highlight both the existing traces of competence proportionality employed by the Court to allocate competences as well as the potential of the proportionality standard to temper the spillovers on Member States' autonomy accruing from the exercise of EU competences. While the Treaty restricts proportionality to reviewing the use (not existence) of EU competences, the Court has implicitly employed proportionality considerations to verify the existence of EU competences. In addition, drawing from established case law, competence proportionality assessments could rely on an effect-based substantive review in combination with procedural duties allowing a meaningful balancing of national autonomy against the dynamics of deeper integration.     

New federalism and health care policy: states and the old questions

The New Federalism that evolved under the Reagan administration tends to grant states more discretion in the implementation of health care programs. It thereby rekindles old concerns about the commitment, capacity, and progressivity of the states. This paper reviews recent policy developments and reconsiders state performance from the vantage point of the mid-1980s. While hard evidence remains elusive, a plausible case exists that any gap between the states and Washington on commitment, capacity, and progressivity has diminished. State administrative capacity in particular has probably increased. The continued presence of substantial variation among the states needs to be underscored, however. Moreover, the relentless imperative of economic development, or migration, theory sets severe limits on how far states can go in adopting redistributive measures to assure adequate medical care for the poor. Given current federal laws, the most optimistic, plausible scenario envisions the rise of a technical politics of efficiency in the states. In spite of state limitations, health policy reformers need to pay increased attention to their potential role.     

The form and context of federalism: meanings for health care financing

This article examines the meaning of federalism for health care financing (HCF) and is based on two considerations. First, federal institutions are embedded in their national context and interact with them. The design and performance of HCF policy will be influenced by contexts, the workings of the federal institutions, and the interactions of these institutions with different elements of the context. This article unravels these influences. Second, there is no unique model of federalism, and so we have to specify the particular form to which we refer. The examination of the influence of federalism and its context on HCF policy is facilitated by using a transnational comparative approach, and this article examines four mature federations: the United States, Australia, Canada, and Germany. The relatively poor performance of the U.S. HCF system seems associated with the fact that it operates in a context markedly less benign than those of the other national HCF systems. Heterogeneity of context appears also to have contributed to important differences between the United States and the other countries in the design of HCF policies. An analysis of how federalism works in practice suggests that, while U.S. federalism may be overall less favorable to the development of well-functioning HCF policies, the inferior performance of these policies is to be principally attributed to context.     

Executive federalism and Medicaid demonstration waivers: implications for policy and democratic process

Executive federalism emphasizes collaboration between the executive branches at the national and state levels to transform grant programs through the implementation process. In this regard, Medicaid demonstration waivers loomed large during the presidencies of Bill Clinton and George W. Bush. This article documents and compares the volume and substance of section 1115 Medicaid waiver activity under the two presidencies. From the perspective of policy performance, Medicaid demonstration waivers provide modest support for the view that states serve as laboratories for policy learning in the health care arena. More broadly, the waivers have not yielded a major solution to the problem of the uninsured and are unlikely to do so. At the same time, they have not (as some have suggested) been a subterranean force for the erosion of Medicaid. To the contrary, these waivers have often enhanced health services for low-income people; above all, they have helped preserve Medicaid as an entitlement by undercutting support for those seeking to convert the program into a block grant. From the perspective of the democratic process, we find that Congress has been a more significant player in shaping waivers than the executive federalism model suggests. While the decision processes surrounding Medicaid waivers often fall short of democratic standards with respect to transparency and opportunities for public input, they still compare favorably to certain alternatives.     

Representation in demoicracies. Contributions from Belgian federalism to the future of Europe

This contribution assesses representation in the EU through the lens of demoicracy, focusing on how the demos and the demoi are represented and how this interacts with the executive-legislative balance and party politics. As the Belgian polity is a living case for the EU but often as flawed as the latter when it comes to democratic standards of representation, we examine whether and how reform proposals for the Belgian polity can inspire future reforms at EU level. We demonstrate that the direction demoicracies should head for when strengthening democratic representation should include a balanced representation of the demos and demoi via a bicameral system, a polity-wide constituency to represent the demos, involvement of the legislatives of the constituent units at the encompassing level, and a specific role for polity-wide parties.     

Inching toward incrementalism: federalism, devolution, and health policy in the United States and the United Kingdom

In the United States, the recently enacted Patient Protection and Affordable Care Act of 2010 envisions a significant increase in federal oversight over the nation's health care system. At the same time, however, the legislation requires the states to play key roles in every aspect of the reform agenda (such as expanding Medicaid programs, creating insurance exchanges, and working with providers on delivery system reforms). The complicated intergovernmental partnerships that govern the nation's fragmented and decentralized system are likely to continue, albeit with greater federal oversight and control. But what about intergovernmental relations in the United Kingdom? What impact did the formal devolution of power in 1999 to Scotland, Wales, and Northern Ireland have on health policy in those nations, and in the United Kingdom more generally? Has devolution begun a political process in which health policy in the United Kingdom will, over time, become increasingly decentralized and fragmented, or will this "state of unions" retain its long-standing reputation as perhaps the most centralized of the European nations? In this article, we explore the federalist and intergovernmental implications of recent reforms in the United States and the United Kingdom, and we put forward the argument that political fragmentation (long-standing in the United States and just emerging in the United Kingdom) produces new intergovernmental partnerships that, in turn, produce incremental growth in overall government involvement in the health care arena. This is the impact of what can be called catalytic federalism.     

Section 1983 litigation: An effective remedy to police misconduct or an insidious federalism?

In recent years the federal courts have experienced a dramatic increase in civil suits alleging police misconduct under the federal provision, 42 U.S.C. Section 1983, which was originally enactd as part of the Civil Rights Act of 1871. Section 1983, presently the second most litigated provision of the United States Code, grants a private right of action for redressing violations of federal and Constitutional rights committed by persons (including municipalities) acting under color of state law. The recent development of Section 1983 as a mechanism for controlling police misconduct has profound implications for New Federalism, public official conduct and traditional legal doctrines (such as the exclusionary rule). This study reviews the legal basis for civil liability remedies, examines the impact of recent developments on police behavior, and explores the policy considerations underlying an assessment of this expanding legal remedy as a viable option in preventing police misconduct.