Crisis and Kompetenz-Kompetenz: immigration as a case study

Abstract

Abstract:
One important feature of the Spanish constitutional system of division
of competence between the State and the Autonomous Communities
is its open character. In certain areas, the State is competent
to set the fundamental grounds of legislation, which will be later
developed by the Autonomous Communities. In this way, the State
is indirectly allowed to define the scope of intervention of the Autonomous
Communities, although the Constitutional Court can later
correct this definition. This article intends to explore the impact that
this framework has on the content of the legislation. More specifically,
it intends to analyse how the fight over the competence thus
produced between State and Autonomous Communities has influenced
the degree of social protection granted to aliens, being both the
State and the Autonomous Communities competent to intervene in
the field of immigration, and being this interterritorial tension particularly
strong during the years of economic crisis. This article departs
from the idea that the political tension between territorial powers
generates a growing disparity of normative responses between Autonomous
Communities, according to the bigger or smaller incentives
these may have to distance themselves from the position defended by
the State. And it then moves to the more specific legal question of
whether the constitutional framework, as defined by the Constitutional
Court, actually admits the resulting degree of variety of normative
responses; or if, instead, the State can impose a stricter definition of
the legislative grounds from which the Autonomous Communities
depart in their normative intervention.