Rescue Package for Fundamental Rights: Further Comments from PETER LINDSETH

It is a tribute to the thoughtfulness of the Heidelberg proposal that it has stimulated such a provocative exchange of views so far. It is quite obvious that, regardless of one’s position vis-à-vis the merits of ‘reverse Solange’, there is widely shared concern regarding the evolution of the Hungarian regime. Therefore, at least on an instrumental level, the debate is primarily over the proper balance between judicial and political approaches in challenging that evolution, a debate that the Heidelberg proposal has stimulated quite nicely.

But on a deeper level—one of principle—the debate has been over the character of European integration itself. It is on that level that I’d like to engage the views expressed by my American colleague, Daniel Halberstam, in particular. I see the disagreement between Daniel and myself as revealing of some of the deeper stakes for European public law that the ‘reverse Solange’ proposal potentially involves.

Daniel expresses some surprise that my initial comments on the Heidelberg proposal alluded to the nondelegation doctrine in the US. He argues that nondelegation has ‘not proven a full-fledged workable doctrine of containment’, even though he acknowledges that ‘remnants persist here and there of the doctrine’. Those ‘remnants’, alas, are precisely what are relevant here, and they arguably have direct analogies in German constitutional law.

Constitutional delegation constraints in the US operate, not as a basis for a frontal attack, but as a canon of construction where, as here, someone is offering an interpretation that raises nondelegation concerns. (On this point, see Cass Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315 (2000); see also John Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup. Ct. Rev. 223 ...

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