Executive Migration Governance and Law-making in the European Union: Towards a State of Exception

In the name of effectiveness, European Union (EU) governance has long departed from the traditional approach of governing through law, venturing onto new paths of making and discharging policies across different policy fields. Through new and creative governance, networked governance, and governance through agencies, flexibility and functionalism have become the new paradigms of EU governance. This is particularly striking in the interiors area, including internal security and mi- gration, where the fuzziness of the constitutional framework leaves wide margins to new governance approaches to intervene to “fill the gaps”. Failing to achieve harmonization through law (because of the high sovereign sensitivity and politicization), EU governance turned to harmonization through practices, trying to increase trust and boost cooperation on a practical level playing field. While leg- islative production regulating the core of EU asylum and migration is still scarce (i.e., regulating the substance of migration), hard law provisions mushroom when it comes to empowering agencies, regulating operational cooperation, or harmonizing practices across the EU (i.e., regulating the ad- ministration of migration). The actual management of migration occurs then within this latter exec- utive/administrative dimension. Analysing (executive) migration governance in terms of whether it achieved its original intents (effectiveness and depoliticization) would only tell something about its goodness of fit, and little about its goodness. In light of the incessant crises that have hit the EU, this Article reflects on the close-to-Schmittian state of exception, that is fuelling an increasingly creative governance in the Union.