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2 Colum. J. Eur. L. 573 (1995-1996)
Subsidiarity, Harmonization, and Their Values: Convergence and Divergence in Europe and the United States

handle is hein.journals/coljeul2 and id is 581 raw text is: Conclusions

SUBSIDIARITY, HARMONIZATION, AND THEIR VALUES:
CONVERGENCE AND DIVERGENCE IN EUROPE AND THE
UNITED STATES
Gerald L. Neuman*
In surveying insights gained from these two symposia, I will not presume to
replicate George Bermann's fine recapitulation of the first symposium.' Rather I
will try to make a series of comparative observations on what I have learned,
from an American point of view, under the general heading Subsidiarity,
Harmonization, and their Values.
Speakers have repeatedly invoked the Supreme Court's opinion in New York v.
United States.2 Early in that opinion, Justice O'Connor made the following
disclaimer:
The benefits of this federal structure have been extensively catalogued elsewhere,
but they need not concern us here. Our task would be the same even if one could
prove that federalism secured no advantages to anyone. It consists not of devising
our preferred system of government, but of understanding and applying the
framework set forth in the Constitution.3
Then, in a manner too predictable to be called ironic, O'Connor followed this
disclaimer by imposing a brand-new doctrine of federalism - the anti-
commandeering principle - which may or may not be normatively attractive,4
but which lacks persuasive grounding in either text or history.5
* Professor of Law, Columbia University School of Law.
George A. Bermann, Regulatory Federalism: A Reprise and Introduction, 2 COLUM. J. EUm. L.
395 (1996) [Bermann, Reprise].
2 505 U.S. 144 (1992).
3 Id., at 157 (citations omitted).
4 As George Bermann and Ingolf Pernice observe, both European Community law and German
federalism are built on the contrary principle of mandatory state enforcement. George Bermann,
Harmonization and Regulatory Federalism [Bermann, Regulatory Federalism], in HARMONIZATION OF
LEGISLATION IN FEDERAL SYSTEMS: FIRST SYMPOSIUM OF THE COLUMBIA LAW SCHOOL AND THE LAW
FACULTY OF THE JOHANN WOLFGANG-GoETHE UNIVERSITY FRANKFURT 37, 41 (Ingolf Pernice ed.
1996) [FIRST SYMPOSIUM]; Ingolf Pernice, Harmonization of Legislation in Federal Systems:
Constitutional, Federal and Subsidiarity Aspects [Pernice, Aspects], in FIRST SYMROSIUM at 9, 18.
1 See Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State
Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001 (1995); H. Jefferson Powell, The
Oldest Question of Constitutional Law, 79 VA. L. REV. 633 (1993); see also Saikrishna B. Prakash,
Field Office Federalism, 79 VA. L. REV. 1957 (1993) (finding original intent to permit
commandeering of state executive officers, but not state legislatures).

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