The Separation of Powers Doctrine and the Power of Participation: Citizen's Influence in Delegated Rule-Making in the United States, the European Union and Germany
Final Report Abstract
The theory I have developed and which I call a Constitutional Theory of Imperative Participation conceptualizes participation and makes the the legal orders’ founding texts, i.e. the US Constitution’s, the Grundgesetz’ and the Treaty on the Functioning of the European Union’s implicit rules on participation explicit. It shows who must be able to participate and how much influence this participation must possess in order to add to the legitimacy of the exercise of public authority. Participation, as it is understood in my work possesses a legal effect which is imperative on the State. It is therefore referred to as “imperative participation”. The imperative effect of citizens’ participation can differ: direct democracy allows for legislating directly, while voting leads to newly constituted organs. Participation in rulemaking and other acts of state forces the State to react to and consider the submission (though not necessarily to follow it). Participation in judicial matters forces the State to activate the judicial process and to deliver a judgment (though not to decide in favor of the plaintiff). The litmus test of delegated rulemaking shows that participation spells out as follows: First, everybody is able to participate on the legislative level, either indirectly via elections or directly via forms of direct democracy. Direct democracy of course does not exist on the US, German federal level nor the EU level but only on the State level in some US States and in all 16 German Laender. Second, the rule will be made by the Executive but the public and not only those individuals who are directly affected can comment on the issue and these comments need to be taken into consideration. Third, with regard to judicial review, those whose participatory rights were infringed have standing to challenge the executive proceedings. These criteria are not only the limits of participation but should be understood as its ideal, following from the principles of democracy and the rule of law as balanced by the separation of powers doctrine. Germany and the EU can certainly learn a lot from participation in the US in order to make their systems more participatory and responsive.
Publications
- A Constitutional Theory of Imperative Participation – Delegated Rulemaking, Citizens’ Participation and the Separation of Powers Doctrine, in: Albany Law Review 2016, S. 101- 167
Dominik Steiger
