13 December 2020
Compromising the Rule of Law while Compromising on the Rule of Law
Some EU leaders may assert that EU money will now be brought under the rule of law given that the Conditionality Regulation is now guaranteed to pass. But they are wrong. Continue reading >>
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09 December 2020
LawRules #12: We need to talk about Financial Sanctions
As our podcast comes to an end, the year and the German presidency of the European Council do too. One of the foremost projects of the German presidency has been to link EU funding and compliance with rule of law standards. The mechanism is going to be a part of the next long-term budget of the Union, starting from 2021 – that is, if Hungary and Poland vote in favor of it, which is increasingly unclear at the moment, or if a way is found to circumvent their veto. The connection of rule of law violations and EU money, the advantages and shortcomings of financial sanctions for member states as well as how things stand on the current proposal – that’s what we discuss in this week’s final episode of We Need to Talk About the Rule of Law that we wrap up with an outlook on the current state of the Union, rule of law wise. Continue reading >>
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20 November 2020
So It Goes – Part II
This week, the Hungarian and Polish governments vetoed the critical elements of the European Multi-Annual Financial Framework and Recovery Fund that required the unanimous consent of European Union Member States. Prime Minister Orbán had been threatening this veto ever since the European Commission proposed to link the distribution of these funds to comply with the rule of law. The Brussels veto this week coincided with a domestic legal blitz in Budapest as a major constitutional amendment, and a flurry of new laws and decrees appeared all at once. The two legal events are related. Continue reading >>
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19 November 2020
So It Goes – Part I
The Hungarian government is now so routinely using unconstitutional emergency powers to circumvent constitutional constraints that one must conclude that the government’s main aim is to govern outside the very constitution that it wrote for itself a mere decade ago. At this point, it seems irrelevant whether this limitless power is achieved with or without the declaration of a constitutionally authorized state of emergency. Government unconstrained by the constitution in Hungary has become the norm and not the exception. Continue reading >>
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09 November 2020
What Happens Next?
Despite the length of time it took to determine the result, this is not a close election. Everyone who has felt that the last four years brought American democracy perilously close to collapse should now feel relieved. Biden’s margin of victory in the decisive states is too large to be overturned by typical recounts or by the usual toolbox of legal challenges. As I will explain in this post, however, we’re not completely out of danger yet. Continue reading >>05 November 2020
What Just Happened?
The American electorate seems to have spoken and it seems to have rejected President Trump. But the there is still the possibility of mischief if Trump succeeds in using the law to thwart the election results. The US constitutional system with its strange and unique system for selecting a president is just rickety enough to make it possible for Trump to litigate his way out of an election loss. Continue reading >>28 September 2020
Before It’s Too Late
Dear President von der Leyen, in your recent State of the Union address, you rightly emphasized that “breaches of the rule of law cannot be tolerated.” We are sorry to say we are seeing ample evidence to the contrary. Continue reading >>16 August 2020
Weaponizing the Post Office
In our pandemic-addled moment, many once-normal activities are now considered dangerous. Hugging hello. Teaching in a classroom. Attending a concert. Having friends over to our homes. And now in the US, we have something else to add to the list of once-normal things that are risky in the pandemic: Voting by mail. Continue reading >>
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30 May 2020
From Emergency to Disaster
This week, Prime Minister Viktor Orbán’s government put before the Hungarian Parliament two draft laws that, if passed, would end the state of emergency and create a new legal framework for handing the pandemic from here on out. In doing so, the government was responding to those who criticized the unlimited power that the government had been given in the law creating a pandemic emergency, the Enabling Act of 30 March 2020. That law allowed the government to override any law by decree, a power that was unlimited in both scope and time and that violated Fidesz’ own “illiberal” constitution the Fundamental Law.The new laws are no better, and may even be worse. One of the draft laws is less than one page long accompanied by two pages of justification. It purports to repeal the initial Enabling Act (about which, more below). The other one is called the law on “transitional provisions” and at first it seems only to provide lots of technical answers to questions that arise about how to reset deadlines for various legal processes that were delayed when the economy stopped. The new laws are no better, and may even be worse. Continue reading >>
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30 April 2020
Orbán is Still the Sole Judge of his Own Law
Our 22 April post on the Verfassungblog about Viktor Orbán’s state of emergency generated a thoughtful reply from Dr. Dániel Karsai, a well-respected Hungarian lawyer. We appreciate the chance to respond to his criticisms, alleging that we made some factual errors about the operation of Hungarian law. Continue reading >>
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