Freedom of Movement and the Right to a Minimum Income: Comparing the North German Confederation, the US and the EU

Freedom of movement in the EU has come to an impasse. Not only does the right to move freely and to access welfare in destination member states raise political tensions, but the absence of entitlement to social assistance programs can leave EU migrant citizens in precarity and thereby undermine the concept of freedom of movement. This paper starts from the observation that tensions between freedom of movement and access to social assistance have been common challenges in (con)federal jurisdictions with devolved welfare responsibilities, and asks how policy problems similar to those currently seen in the EU have been resolved in other and past contexts. Taking a comparative historical institutionalist approach, the paper compares the current situation in the European Union with experiences in the North German Confederation and the United States of America. Specifically, it asks under what circumstances free movement with a right to social assistance for all subjects/citizens was achieved. Our analysis shows how these cases were driven by different mechanisms. Whilst a solution to the policy problem in the North German Confederation was taken through a hierarchical political decision based on functional justifications, the decision in the United States was reached through a judicial review process and based on the concept of citizenship as a fundamental right. In the final section of our paper, we discuss to what extent the EU could learn from the experiences in the two other jurisdictions.