Transatlantic Policy Memorandum
Defending the Rule of Law in the US and EU: Judicial Infringements and Policy Solutions
Lorenzo Catalan Sada; Nicholas Hodson; Alexandra Smith; Maryse Tilman; Lucia Torlai; Niek Wiersma
Framing and Introduction: What is the Rule of Law and Why does it Matter?
Author: Alexandra Smith
The rule of law, “an often invoked yet seldom defined principle...” (Stein, 2019) as US Supreme Court Justice Kennedy defined it, underpins guarantees of fair governance in all democratic systems. Governments and systems understand the rule of law in differing ways in accordance with their legal traditions, institutional arrangements, and customs. The rule of law, defined by World Justice Project, understands the rule of law as, “The World Justice Project defines the rule of law as a durable system of laws, institutions, norms, and community commitment that delivers: accountability, just law, open government, accessible and impartial justice.” (WJP, 2021). In recent years, discussions on the ‘rule of law’ and ‘rule of law backsliding’ have come to pre-occupy political debates across the United States and throughout Europe.
Of course, the rule of law is not merely a formal procedure but, as scholars like Fuller and Waldron argue, has a moral and normative element (Walrdon, 2020). At various times and places, rule of law has been misinterpreted as rule by law which implies that the letter of the law is to rule citizens even amidst contestation and undue legal limitations (Waldron, 2020). The rule of law aims to remedy arbitrariness and unpredictability within societies and is, therefore, an essential element for functioning liberal democracies (Picconine, 2020). From a philosophical standpoint, the rule of law is prized as a general good contributing to the application of and support for justice within societies. In the political realm, respect for the rule of law ensures that elected officials and institutions will legislate and adjudicate within the confines of their delineated duties and be appropriately restrained when infringements occur (Tasioulas, 2020). An essential element of the rule of law that will be examined in succeeding sections is the independence of the judiciary (Jenkins, 2011).
In designing institutional arrangements which could uphold the rule of law and address infringements, scholars like Locke proposed a system with a clear separation of powers and mutual oversight by the delegated branches (Jenkins, 2011). In both the EU and the US, the respective supreme courts, the Court of Justice of the European Union (CJEU), and the Supreme Court hold the powers of judicial review to evaluate and, if necessary, nullify actions taken by legislative actors on the basis of their legality (Magen & Pech, 2018).
In the United States, the rule of law is understood as an adherence to the practices, laws, and procedures enumerated in the US Constitution and the resulting legal customs (Rosenbloom, 2019). The federal government of the United States was arranged with a system of inter-institutional checks and balances to ensure that no one branch has undue influence or power over another and that the constraints placed against the government to protect the rights of citizens are upheld and enforced (Rosenbloom, 2019). In the European Union, the rule of law, at the supranational level, is in conformity to the foundational treaties, directives, and regulations signed on to as a result of EU membership (Magen & Pech, 2018). While sharing some similarities the EU and US, given their unique political and institutional arrangements, also differ in how the rule of law is enforced and understood. These divergences and convergences will be discussed in the succeeding sections.
Generally speaking, the rule of law implies that no particular actor can act outside the realm of legal constraints without due punishment. In the rule of law democracy nexus, the rule of law ensures that democratic processes and procedures, like free and fair elections, will be upheld despite administration changes, external factors, and domestic unrest (WJP, 2021). After recent backsliding in the rule of law in both the United States and the European Union, it is an apropos time for a re-evaluation and re-examination of the important role that the rule of law plays in both places in both a functional and normative sense. In the Transatlantic context, strong adherence to the rule of law at the national level has implications for the US and EU’s likelihood of respecting international law and norms and for its legitimacy in promoting the rule of law in the rest of the world.
Rule of law in the EU: independence of the judiciary and monitoring mechanisms
Author: Maryse Tilman
The rule of law is a notion that entails key aspects of a working democracy such as the separation of powers and the independence of the judiciary. The EU determined a set of standards and values to guarantee the independence of the judiciary in its member states. Standards such as public access to a fair trial are guaranteed as a fundamental human right in the UDHR as well as in the European Convention for the Protection of Human Rights (Stopchinski, 2019, p. 679). Furthermore, there should be no politicization of the judiciary, which must remain independent as stated in Article 19 TEU (Manko, 2019), in order to guarantee a democratic order (Stopchinski, 2019, p. 684). Along with democracy and human rights, the rule of law is one of the fundamental values of the EU enshrined in Article 2 TEU (Kelemen, 2020, p. 481). Adhesion to and compliance with these values is also a requirement to access EU membership, as they are part of the Copenhagen criteria (Pech & Kochenov, 2019, p. 1). In this respect, it is paramount for the values enshrined in Article 2 TEU to be upheld and respected at all times and by all the member states (Wouters & Ovádek, 2021, p. 200). If a member state breaches one of the EU values, preventive or sanctioning measures will be taken to restore the rule of law and safeguard democracy.
Because the EU is an “interconnected legal ecosystem” (Pech, 2020, p. 20), the erosion of the rule of law in one of the member states de facto affects all of the Union, which is why direct threats to the rule of law such as what happened in Poland and Hungary need an effective response. To do so, the EU Rule of Law Toolbox contains many mechanisms at the supranational level, ranging from promotion and prevention to sanctions. As Manko suggests, these mechanisms to protect the rule of law can be classified into two categories: first, the political mechanisms (4) and second, the legal ones (Manko, 2019).
The first political mechanism is the Rule of Law Framework – also known as the “pre Article 7 procedure”- which is a tool that has been adopted by the Commission in 2014 (Pech, 2020, p. 22). This tool consists of a three-step process. As a first step, when a breach of the rule of law is witnessed, the Commission enters into dialogue with the member state concerned, in order to assess the situation. Then, the Commission issues recommendations as to how to improve the situation in that member state. Lastly, if the member state still does not comply with the recommendations made by the Commission, it will resort to Article 7, which is a legally binding tool (Raube & Costa Reis, 2021, p. 636).
A second mechanism is Cooperation and Verification for Bulgaria and Romania. It is “a temporary mechanism, set up in 2007, on the assumption that the two then-new Member States 'still had progress to make in the fields of judicial reform, corruption and (for Bulgaria) organized crime’” (Manko, 2019, p. 4). It is a very soft instrument that mostly issues “progress reports” (Manko, 2019, p. 4).
Another tool is the Council’s Annual Rule of Law Dialogue. It is meant to safeguard the rule of law and support the Commission’s Rule of Law Framework (Pech, 2020, p. 23). However, it has been criticized as being “counterproductive” by Kochenov and Pech who argue that a peer-review system would be a more efficient tool (Pech & Kochenov, 2019, p. 4).
Lastly, the EU Justice Scoreboard is a tool to assess in detail the judiciary situation in the EU member states. The focus lies on the efficiency, quality, and independence of the judiciary (European Commission, 2021, p. 1). It serves as a database for the elaboration of the Annual Rule of Law Report (European Commission, 2021).
In terms of the legal system, the EU has its own supranational court – the CJEU – which has the final word when it comes to interpreting EU law when member states have conflicting opinions or try to undermine the rule of law (Pech, 2020, p. 15). When there is a suspicion of a rule of law breach, the Commission can launch infringement procedures against a country, first as a warning, and then, if the country is not acting to comply with EU law and values, the case can be referred to the CJEU under Article 258 TFEU. However, the “illiberal tendencies” witnessed in Poland and Hungary proved to be challenging for the CJEU and its capacity to safeguard EU treaties and fundamental values (Kovács and Scheppele 2018 (Raube & Costa Reis, 2021, p. 639)). In the case of Poland, “the CJEU declared, for the first time, the incompatibility of national measures on the ground that they violated EU values, in particular, Article 19 TEU on the judicial independence of national courts (see Case C-619/18 of June 2019)” (Raube & Costa Reis, 2021, p. 639).
The second legally-binding tool available in the EU Rule of Law Toolbox is Article 7 TEU. Article 7 (1) is invoked when there is a clear risk of breach of EU values under Article 2 TEU, such as what recently happened in Poland. It is a preventive measure that consists of a formal warning (Stopchinski, 2019, p. 684). This tool can be employed by various EU actors: 1/3 of the member states, the EU Parliament, or the Commission (Pech, 2020; Raube & Costa Reis, 2021). After the use of Article 7 (1), if a clear breach of the rule of law is declared, Article 7 (2-3) – the sanction mechanisms - can be invoked and result in the suspension of the member state’s rights, such as the right to vote in the Council (Pech, 2020; Raube & Costa Reis, 2021).
Rule of Law in the US: Independence of the Judiciary
Author: Lucia Mariele Torlai
The United States Constitution establishes the Judiciary as one of the three equal branches of the federal government. The Founding Fathers fully recognized the importance of the independence of Federal and States Courts from political influence and shifting popular opinion for the quality of the democratic process. The insulation from external pressures guarantees that the Judges do not face political or personal consequences as a result of their decisions, hence they would act solely in accordance with the written law (Judicial Learning Center, 2019).
Judicial independence at the Federal level is guaranteed by different means. First, Article III affirms that federal judges may hold their positions “during good Behaviour” (U.S. Const. Art. III, § 1), meaning they can serve a Life Term provided they comply with the ethical and legal standards of their judicial office. Moreover, the same article affirms that federal Judges' salaries, set by Congress, cannot be diminished once the judge has taken office- to prevent, for instance, retaliatory measures against unpopular decisions. Thirdly, Federal Judges are appointed, as opposed to being elected. In particular, Article II of the United States Constitution affirms that the President of the United States, with “...the Advice and Consent of the Senate...”(U.S. Const. Art. II, § 2) holds the power to appoint judicial officials. It should be noted, however, that almost all State Judges in the US serve for terms- from 4 to 15 years- and most face some kind of democratic accountability to the people to maintain their posts (USAID 2002). Other means to protect Judicial independence are the self-administration of the judicial branch, and ad-hoc laws to “prevent Conflicts of Interest” such as those regarding transparency and bribery (USAID 2002).
A system of Checks and Balances was built into the Constitution to prevent power abuses on the part of Judges, thus guaranteeing that independent courts and judges would remain faithful to the rule of law. The three major checks on the power of the courts are represented by the possibility of Impeachment and removal, the Judicial Code of Conduct, the Oath of Judges and Justices (Judicial Learning Center, 2019). Moreover, Congress can pass legislation to attempt to limit the power of the Judiciary, for instance following charges of disproportionate judicial activism. Possibilities include changing the Courts’ jurisdiction; redimensioning the impact of a Court decision a posteriori; or amending the Constitution in relation to the Court (Peck 2018).
A parallelism can be drawn between the Role of the Supreme Court in the United States (SCOTUS) and the Court of Justice of the European Union (CJEU), as both represent the final authority ensuring consistent interpretation of- respectively- the Constitution, and the EU Treaties and their correct application. They differ in the number of Appointed Judges (nine in the SCOTUS and twenty-seven in the CJEU) and the duration of their Term (Life Term vs three-year renewable term). Their fundamental difference, however, consists in the Jurisdiction: the CJEU has “jurisdiction over failures of Members States of the EU to fulfill Treaty obligations”, as well as “judicial review over legislation passed by EU bodies”. On the other hand, the Supreme Court has “Ultimate Appellate Jurisdiction over all federal and state courts involving issues of federal law”, as well as original jurisdiction in exceptional circumstances (European Parliament 2021).
Among the threats to the independence of the Judiciary in the United States, there is the increased politicization of State and Federal Courts. For instance, the fact that in 38 States Judges are elected by people has been interpreted as affecting their impartiality, given the expensive campaigns for judicial office and the probability that “judges facing re-election will be affected in their judicial decisions” (Friedman 2019). At the federal level, the perception is similar: a recent study by Harvard CAPS/Harris revealed that “nearly two-thirds of the respondents thought decisions of federal judges are influenced by politics and that rulings are based more and more on political views” (Friedman 2019). Another recent development- analyzed more in depth in the following section- is the interference of the executive in the independence of the judiciary, for instance in the cases of Trump’s presidency appointment of judges, well as vocal opposition and threats towards less accommodating courts or individual judges.
Recent developments in the US: Threats and Norm Breaking in the Judiciary
Author: Nick Hodson
“Every country is a potential democracy, and every country is a potential dictatorship.” (Haass, 2021). Anne Applebaum, a Senior Fellow at John Hopkins, recently described in an interview the crisis that many Western democracies currently face the existential issue of democratic backsliding. The United States (US) is not immune to this wave of undemocratic sentiment. With the election of Donald Trump in 2016, the US and its institutions have had to reconcile with conservative populism which threatened the rule of law in America (Kamarck, 2021). Although Trump is not the cause of this movement, he has wielded the visceral resentment of many Americans to become president and use such power to benefit himself and appease his base. Trump’s disregard for the rule of law undermined existing procedures in the US and led to democratic backsliding (Kamarck, 2021). One primary way Trump did this was through his public assault on the judiciary and his appointment of judges that went against procedural norms.
The US Constitution gives the president the authority to appoint Federal judges. Presidents generally appoint judges that are close to their political ideology. Presidents have also been known to criticize judges that did not rule in their favor in instances where the federal government is a party in such a trial. However, Trump at a greater frequency and with harsher language sought to intimidate judges both that had ruled against the Trump Administration and judges that would hear cases in the future dealing with the federal government (Brennan Center, 2017).
In addition, Trump had threatened to dissolve the Ninth Circuit Court, a federal appeals court, for its perceived ideological stance and propensity to take on Trump's policies (Brennan Center, 2021). Although the Trump Administration did not take action on this threat, judicial independence was regularly contested under his presidency. Furthermore, Congress, whose role is to act as an additional check on the Executive, repeatedly fell short in reinforcing the independence of the courts (Kinsella, Weiner, Lau, 2020). The World Justice Project, an international civil society organization, reported a half-point decrease in the constraints of government authorities in the US between 2016-and 2021 (World Justice Project, 2021). These constraints encapsulate the effectiveness of a judicial system to exercise independent checks on the executive, legislature, and bureaucracy (World Justice Project, 2021). This indicates a quantitative decline in the health of the judicial branch during Trump’s tenure.
Concurrently, Trump had abandoned long-standing norms for appointing federal judges. Since 1917, Senators from the state in which a judge was to be nominated needed to approve a judge in order to move on in the appointment process. This practice supported a moderate and depoliticized judiciary. However, because this was merely a norm and not a rule, the Trump Administration bypassed this process and appointed judges at will. Furthermore, the Trump Administration almost exclusively took recommendations for these judicial offices from conservative legal groups such as The Heritage Foundation and the Federalist Society (Faleschini, 2017). Although this is not forbidden within the Constitution to appoint judges on ideological grounds, when coupled with ignoring the norm of having the American Bar Association vet nominees, this sets a dangerous new precedent for the politicization of the courts.
Furthermore, Trump challenged the results of the 2020 General Election and attempted to use the courts at the state level to overturn the results (Wheeler, 2021). While this attempt failed and President Biden was eventually confirmed as the winner by recounts, Trump’s disregard for the long-standing processes used in the American democratic system further demonstrated his indifference toward the rule of law (Wheeler, 2021).
Recent Developments in the EU: Poland’s Case Study
Author: Lorenzo Catalan Sada
In 2015, the Polish Government started implementing a judicial reform through more than 30 laws relative to the entirety of the judicial power structure. A reform that affected the Constitutional Court, the Supreme Court, the National Council of the Judiciary, ordinary courts, administrative courts as well as the prosecution office by increasing the executive and legislative powers over the judiciary (European Commission, 2021). The scale of the reform pushed legal scholars to refer to these events not as a constitutional crisis but rather as an illegal war against the Polish Constitution led by the Polish constitutional authorities (Wyrzykowski, 2019).
Among the numerous acts of dikastophobia – the strategy of preventing the executive and legislative bodies to be controlled by the judiciary – the Commission took first an anxious interest in the reform of the Constitutional Court. A body that acts as the core defender of the Polish Constitution and, by extension, the Polish separation of powers. This Court saw 5 judges appointed by a previous legislature revoked by the new legislature who appointed 5 new judges and introduced a reform to typify their decision. Appointments that were annulled by the Constitutional Court itself in two judgments that went ignored (European Commission, 2016). These unconstitutional acts pushed the Commission to adopt within the EU rule of law framework a series of recommendations to Poland which got wider with new judicial reforms that, inter alia, forced Supreme Court Judges out through early retirement or established a new disciplinary regime for judges (European Commission 2017). Because of this, the Commission submitted in 2017 a Reasoned Proposal to the Council detailing all the violations of the rule of law and triggering art. 7(1) TEU pressuring Poland in undoing most of the reforms (European Commission, 2021).
Since a legal battle has been raging between Courts. Firstly, inside Poland where some Courts defended the applicability of CJEU’s rulings against the reformed Constitutional and Supreme Court that are considered agents of the Government (Ziółkowski, 2020). Then between the CJEU and the Polish high Courts. The last to date was the adoption by the CJEU of interim measures in October 2021 for the non-compliance of its order by which Poland had to freeze its polemic reforms that are pending of judgment. The interim measure obliges Poland to pay a daily fine of 1 million euros until it either stops the reform or the CJEU emits its judgment on the disputed case. The Polish Constitutional Court responded by considering the legal basis of the interim measure found in the Treaties to be unconstitutional and thus inapplicable in Poland’s Jurisdiction. This marked yet another attack on a core EU law principle: the primacy of EU law (Bárd and Bodnar, 2021) which refuels the debate on European constitutional pluralism on national sovereign grounds (Kelemen and Pech, 2019).
Moreover, finances within the EU have been used by both Poland and the EU to gain leverage in the rule of law crisis. For instance, when introducing the Rule of Law conditionality to European founds, Poland alongside Hungary in 2020, threatened to block in the Council the proposed revision of the Own Resource Decision and the Multiannual Financial Framework proposed by the Commission that would exclude these two member states from receiving the extraordinary Covid recovery founds. Such pressure allowed them to have the conditionality watered down (Fabbrini, 2021). However, this conditionality was not completely excluded as the CJEU ruled in favour of the Commission by considering compatible adding such condition to EU founds in its most recent joint judgment of February 2022 C-156/21 and C-157/21 (CJEU, 2022).
It is yet to be seen if the multiple sanctions and pressures put on Poland will work. Hence, we are testing here the effectiveness of the Rule of Law Framework that even though has introduced a clear definition to the rule of law and a formal procedure. It might prove how limited the Union is when addressing such issues and that it might, in fact, further weaken Poland’s weak rule of law (Kochenov and Pech, 2016; Gajda-Roszczynialska and Markiewicz, 2020).
Recommendations and Proposals
Author: Niek Wiersma
As the previous sections have shown, the protection of the rule of law in both the EU and the US is guaranteed by several measures aimed at preventing backsliding on this issue. However, recent criticism has been voiced against the state of the rule of law on both sides of the Atlantic. Therefore, several improvements will need to be considered in order to strengthen the rule of law and its protection against outside forces.
Recommendation 1: Increase investments in civil society organizations.
Civil society organizations (CSOs) can be seen as an important tool to “develop and promote awareness on rule of law challenges” (Mańko, 2019). This means that they play a role both in raising awareness for issues surrounding the rule of law as well as education on its importance and protection against hostile actions. Also, as some CSOs are not just active in one country but are actually transnational organizations, they could help increase international awareness of rule of law backsliding in a specific country. As the paper by Freedom House (2021) argues, without international support, CSOs will find it increasingly difficult, depending on the country in which they operate, to achieve their goals. This support can be both financial as well as vocal. The report also suggests that the EU’s rule of law reports should include the protection of CSOs in a country. Another suggestion is to take a stance in dealing with governments that are known to reduce the freedom of CSOs to operate to try to get these governments to become more tolerant of CSOs.
Recommendation 2: International monitoring of the rule of law through the OSCE.
The Organization for Security and Cooperation in Europe (OSCE), which includes both the member states of the Council of Europe as well as the US and Canada, among others, can also play a role in the Transatlantic protection of the rule of law. Through cooperation between democratic states in multilateral organizations like the OSCE, governments who are increasingly neglecting good practices in the area of rule of law can be held accountable (Freedom House, 2021). As a country like Poland is a member of the OSCE but tries to justify its backsliding on rule of law issues as democratic practices, the other states can use their influence as fellow members to hold Poland accountable to the standards of the organization, of which respect for the rule of law is one (OSCE, n.d.)
Recommendation 3: Use of financial instruments to combat rule of law backsliding.
Within the EU, several instruments exist to punish member states who threaten the rule of law. For example, the rule of law framework can be used to trigger Article 7 TEU (European Commission, n.d.; Pech & Kochenov, 2019). This could result in the suspension of the voting rights of a member state. Another option in case of weakening of the rule of law in a member state would be to withhold funding to a member state until the problem is resolved (Mańko, 2019). This was used when Poland tried to implement a disciplinary chamber for its judges, which was ruled to be illegal by the Court of Justice of the EU. The measure had an effect to some extent, as it led the Polish government to change its plans. However, as this was not completely what the court had demanded, namely a complete removal of these plans, Poland still did not receive the EU funds (Cienski, 2022; Shotter, 2022). A similar measure of financial consequences related to attacks on the rule of law could possibly be implemented in the US case as well, as the events in Poland have shown that it is an effective instrument.
Recommendation 4: An international summit for the rule of law.
The measures set out in the previous recommendation do not entirely apply to the case of the US, as the main threat to the rule of law there is the politicization of the judicial system, in which the US president also plays a role. In the case of Poland, the EU withheld its funding to the country. However, as the US president is the highest authority in the country, it cannot be disciplined in the same way as Poland was by the EU. Therefore, another possibility would be to organize an international summit for the rule of law, in a similar style to the summit for democracy, which was organized by US President Biden in December 2021. The aim of that summit was to discuss “defending against authoritarianism, fighting corruption, and promoting respect for human rights” (Euractiv.com, 2021). Along similar lines, a summit for the rule of law could bring together a number of countries from all over the world to discuss differences in the rule of law and ways to protect its independence in their respective countries. This could give some perspectives on the different visions of how to deal with the rule of law and would ultimately lead to the protection of the rule of law becoming more similar in all the countries involved.
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