Week 5A - Vertical Separation of powers (unitary and federal states)

defining features of federalism

1. Division of territory

• territory of state is divided into sub-units

• federalism is a territorial concept = hence power sharing without territorial attachment (religious, ethnic) is not federal

2. Regional autonomy

• sub-units possess regulatory powers and separate institutions which are autonomous with respect to central authority

3. Federal Supremacy

• federal (nationa) law has supremacy over law of sub-units

4. Regional representation

• sub-units represented at federal level

• federations provide for participation of regions in federal decision making

• representation can be ensured via upper chamber of bicameral parliament

5. Codification of prerogatives

• autonomous powers of sub-units + representation at federal level = enshrined in constitution

6. Constitutional court

• independent arbiter resolves conflict between central authority and sub-units over scope of powers

reasons for federalism

1. Self-determination

• cultural identity

• ability to control sub-unit

2. Vertical separation of powers

• separation of power between the national level and the state level

3. Subsidiarity

• also occurs in unitary states

• principle of subsidiarity = central authority only acts if objectives cannot be sufficiently achieved by sub-unit (in case of non-exclusive competence)

• avoids power centralizing

confederation

• limited cooperation between sovereign states

• confederal organs as agents of the state

centripetal effect and centrifugal effect (what does it refer to?)

are powers fleeing the centre (central gov.) or fleeking towards it?

centripetal effect

pull sovereign legal entities into 1 unified entity

centrifugal effect

push legal power towards sub-units

federalism defintion

component regions of state have their privilages (especially their constitutional autonomy), their legislative competences, and their participation in federal decisions enshrined in the constitution

federalism on sovereignty

• splitting the atom of sovereignty (as it is 1 unit)

• 2 interwoven states in 1 territory

Unitary state definition

• power can be devolved to regions but can also be taken back by decision of central authority without the involvement of the regions themselves

unitary state on sovereignty

• one claim to sovereignty

• regional organs as agents of the nation

overview of federal characteristics

• sovereignty = divided (federal and state)

• constitution = federal and state

• taxing and spending powers = vertical division of powers

• state participation in federal law-making = yes, federal council

• supremacy of law = federal law supreme

• bicameralism = yes

• constitutional review = yes

• regional judiciary = yes, state judiciary

• federal / national oversight = yes, very limited

• asymmetrical versions = yes

overview of unitary characteristics

• sovereignty = national

• constitution = national

• taxing and spending powers = national legislator decides

• state participation in federal law making = no

• supremacy of law = national law supreme

• bicameralism = no

• constitutional review = no

• regional judiciary = no, judiciary not decentralized

• federal / national oversight = yes

• asymmetrical versions = yes

why does federal law need to be supreme to law of sub-units in a federation?

• if federal law did not override conflicting regional law, regions would be autonomous (confederation)

why are autonomous powers of the federation enshrined in constituion?

• ensures that federalism is a fundamental and entrenched feature of the state

are there degrees of federalism?

yes, federations differ in the amount of power they reserve for their component regions

example of a mild federation

• austria

• national unity at expense of regional powers

• upper chamber is composed of senators who are elected by regional parliaments

• not bound by instructions from home regions

• only able to delay, rather than stop adoption of federal law

example of a strict federation

• Germany

• stronger regional representation

• Bundesrat represents regional govs.

• votes taken uniformly from each region

when is federalism stricter?

when it emphasizes national equality of its component parts

devolution / decentralization

• certain types of power should be exercized centrally for the whole nation

• and other types of power should be exercised in a decentralized manner

what are the pros of decentralization

allows for regions to take into account their own interests and needs

Bicameralism and federalism

• several states feature a bicameral parliament even though they are not considered federal

• second chmaber is one that is directly elected by the people most of the time or by elected representatives

Types of federalism

• integrative federalism

• devolutionary federalism

• symmetrical federlism

• asymmetrical federalism

integrative federalism

a process where formerly separate states join to form a larger federation

example = US, Switzerland, Germany, EU

devolutionary federalism

• when unitary entities devolve so much power to regions that they become federal

• examples = belgium

symmetrical federalism

each component of the federation is considered equal

asymetrical federalism

some regions have greater autonomy than others

devolution

• process by which parliament adopts statutes in order to create sub-national authorities which are handed legislative powers

• more difficult to change, requires legislative or constitutional battles

• goal = autonomy to regions

decentralization

• connotations of symmetry

• when a central government decides to shift workload, management, or decision-making to local branches,

• but the central government retains ultimate ownership and control

• can be easily undone

• goal = greater efficiency

is devolution symmetrical or asymmetrical?

• can be both

• symmetrical devolution = every region gets the same powers

• asymmetrical devolution = The central government grants different regions different levels of self-governing authority (UK)

is decentralization symmetrical or asymmetrical?

• can be both

• symmetrical decentralization = The central government treats every administrative unit identically

• asymmetrical decentralization = The central government gives certain regional branches or municipalities more administrative freedom or unique responsibilities because of their specific circumstances

What type of system is the EU

asymmetrical integrative federalism

why is the EU an example of asymmetrical integrative federalism

1. EU is set up by states which wanted to pool their powers + exercise them through common institutes = integrative federalism

2. Large territory made up of smaller sub-units = federation

3. Permanent law making institution

4. Bridging together national heads of state and gov.

• Council represents the sub-units who are involved in EU law-making

5. Supremacy and direct application of laws

6. Competences enshrined in treaties = federation

what shows EU’s traits of a confederation?

• art. 2(4) TEU

• common foreign and security policy is subject to certain rules from council and EU council unanimously

Why is the EU asymmetrical?

• in a standard federation, you can’t chose which federal laws to follow

• in the EU there are several types of legal opt-outs (eurozone, schengen)

competences in the EU

• specified in the treaties

• division between exclusive and shared competences

• principle of conferral = implies that only powers granted to the EU may be exercised by the EU itself

• principle of proportionality = any action taken by the European Union must not exceed what is strictly necessary to achieve its objectives

• principle of subsidiarity = the Union takes action only if the objectives of a proposed action cannot be sufficiently achieved by the Member States individually

decisions in the EU

• majority of decisions takes place on the basis of majority

• qualified majority = 55%, at least 65% of EU population

• foreign affairs and security = unanimity

Council EU

• responsible for lawmaking

• representation of member states

European Council

• composed of Heads of member states

• operates on consensus

Commission EU

• operates independently from states

• appointed by council with approval of European Parliament

• execution of EU law (applying competition law)

• certain powers may be delegated to the commission to supplement or amend rules

• commission is also responsible for providing national parliaments with constitutional documents

what outlines the supranational character and supremacy of the EU

• Commission and European Parliament

• commission proposes law

• direct representatives of EU citizens vote on it alongside national govs. (parliament)

• once passed that law becomes supreme (Costa v. ENEL)

what type of system is the US

• federal system

• federal authority + 50 states

• new state may be admitted by act of congress

• each state has their own constitution, and a presidential system of gov.

what is the role of the congress in the US

• bicameral federal parliament

• consists of the house of representatives and the senate

house of representatives (US)

• a chamber in the congress

• represents the people of the US

senate (US)

• a chamber in the congress

• represents several states

• each state is represented by 2 senators

• they are elected within the state usually by the states parliament

• senators are accountable to the people of their state

role of the senate

• crucial role in federal law-making and the maintenance of checks and balances

• senates consent is required for passing federal legislation

• the senate cannot be overruled by house of representatives

• the senate gives its approval when the president is to appoint anyone for a position, or when he is to conclude a treaty

• the senate also tries for impeachment and may remove federal judges from office

why is the House of Representatives reflective of the federal character of the US

• election made of house of representatives

• each state must have at least 1 seat

role of the congress

• cannot simply pass legislation on any subject matter

• only has powers which are explicitly conferred in the constitution = therefore states have residual legislative powers meaning powers which are not delegated to the federal level

• core legislative power = lies in the progress

• congress tends to interpret broadly to not have federal power too restricted

Presidential elections in the US

• if there was a direct popular vote, the representation of state’s interests would be disproportionate

• therefore electors from every state are to elect the president

• each state has 3 electors

• every state has own voting procedure for electors

Judiciary in the US

• each state has own court system

• 51 court systems = 50 individual state courts + 1 federal court

• states chose own selection procedure for judges

• lower federal courts are established by federal statute

• state court must disapply state law if it conflicts with federal law

what type of system is Germany?

• federation

• 16 states

• federal states are proclaimed by basic law

• each state has own constitution

• all states have unicameral parliaments

• state govs. are headed by prime ministers who are accountable to state parliaments

• state courts are integrated into nationwide judiciary

Bundesrat

• federal council

• govs. of states are represented on a permanent basis to speak on behalf of the state

• dissolution and re-election of bundesrat is not possible as it is a permanent chamber

• state is allocated a number of votes, reflecting the size of the population (this number also reflects the number of reps set to Bundesrat)

• purpose = states have an influence on federal legislative procedure

Bundestag

• directly elected parliament

• set up to represent the German People

• the electoral system is a mixed-member proportional system (MMP)

• purpose = legislator for federal legislation

Mixed Member proportional system (MMP)

• seats won based on their share of votes nationwide

• sub-divided between state lists depending on the votes that come from different states

• representatives enter parliament when they have won the district

• purpose = legislator for federal legislation

Basic law role in federal competences

• germany

• provides for exclusive federal competences and exclusive state competences

Head of state in Germany

• german head of state is the federal president that is elected by a single purpose gathering of an electorial college called the federal convention

what does germany’s federal convention consist of?

• all members of the bundestag

• equal number of delegates elected by parliaments of each state

german courts

• divided into inferior state courts and supreme courts (federal courts)

• federal courts supervise application of federal law and state law in lower courts

UK what type of system?

• unitary state

• parliamentary sovereignty

what is an example of devolution in the UK?

• Scotland can exercise legislative powers in its territory, unless they are reserved to Westminster

how to distinguish between devolved entities and federal states

• federal states = states derive their power from constitution itself

• devolved entitites = recieve their power from central gov, implies conferral from top down

France what type of system?

• moderately decentralized unitary state

1. Fundamental constitutional power is vested in central institution

2. The state accepts that its administration should be delegated to smaller sub-units

• france has a stong national gov in paris

• territory is divided into smaller sub-units

• constitution provides a legal basis for decentralization

• competences of national sub-units derive from statues adopted at national capital

• sub-units have direct say in their adoption

Netherlands what type of system? why?

• decentralized unitary state

• provinces and municipalities are set up by statue (municipalities are of higher importance)

• 12 provinces are sub-divided into municipalities

• each province has a directly elected parliament

who heads the provincial executive?

• the provincial executive is headed by King / Queen Commissioner appointed by the central gov

who elects the mayors of municipalities in the Netherlands?

the central gov

what does the constitution allow the provinces and municipalities to do in NL

• constitution allows provinces and municipalities to regulate their own affairs

• scope is defined by ordinary statute

• legislative powers are reserved to central gov.

• constitution allows the central gov. to exercise supervision and provide approval for any locally made decisions before adoption

European NL vs Kingdom of NL

• European NL = decentralized unitary state

• Kingdom of NL = federation

Kingdom of NL

• 4 countries = NL, Aruba, Curacao, Sint Maarten

• According to the Charter, the four countries stand on a basis of equality. They manage their own internal affairs entirely independently.

• The overarching Kingdom government only handles a few specific, shared "Kingdom Affairs" = defence, foreign relations, nationality

who executes federal law?

1. Dual federalism = the federal executive (US)

2. Cooperative federalism = the states execute law in their own right (Germany)

what is the dillema of cooperative federalism?

if states are doing the work for federal gov. how to prevent the federal gov from bullying or bankrupting the states

how to prevent the federal gov from bullying or bankrupting the states?

1. Prohibition of Commandeering

2. Almost no powers of federal oversight

prohibition of comandeering

commandeering = central gov forcing the state or local officials to do its bidding without their consent / without paying for it

Almost no powers of federal oversight

• federal gov not allowed to micromanage

• can only check if states are obeying law

• similar to principle of subsidiarity

separate judicial columns

• in systems of dual federalism

• federal courts and state courts

• if federal law is broken = federal court

• if state law is broken = state court

integrated judicial column

• in a system of cooperative federalism

• there is no distinction between the state and federal courts

• state courts handle both state and federal law cases

• at the top there is a court of appeal (federal)

constitutional court

• power of a court to strike down a law if it violates the constitution

• in a federal system this power is important for maintaining vertical balance of power

what is the problem with constitutional courts?

• who appoints the judges with power of federal constitutional review?

US solution for who should appoint judges if there is federal constitutional review

• president picks the judges

• the senate approves

germany solutions for who should appoint judges if there is federal constitutional review

• federal parliament (bundestag) picks half the judges

• state representing chamber (bundestrat) picks the other half

why does Britain seem like a devolved federal state?

• Britain may seem like a devolved federal state because it is made up of Northern Ireland, Scotland, Wales, and England which each have their own parliaments (divided sovereignty)

• However, it is still a unitary state because:

  • The Westminster Parliament has a final say over devolved legislation

  • Devolved powers of the states are not derived from the constitution directly, but as a result of national legislation unilaterally withdrawn by the Westminster parliament

  • The national legislator shares power with the regions, but still retains sovereignty over all public authority

Unitarism characteristics

1. state as 1 unit

• 1 central claim to sovereinty

• no regional participation in constitutional amendment

• regional legislative and executive powers (but on the basis of attribution of law)

• all courts are national courts

unitary state effect on constitutional design

• legislative division of public authority = the legislator decides at which level public authority is exercised

national oversight of local authorities in unitary state

• in a unitary state local authorities do not have their own constitutional sovereignty

• therefore central government creates and overrules them

example of national oversight of local authorities in unitary state

• NL

• art. 123 Constitution

• local authority has to ask central gov for permission before rule/decision takes effect

• central gov can invalidate a local authorities decision

how does devolution work?

act of parliament = regional powers are created through acts of parliament

the central gov hands over specific buckets of power to regional govs, while national topics are kept to central gov.

sewel motion

• the central parliament in London could technically override Scottish or Welsh law

• but to prevent it, the parliament made a formal promise that it will not normally legislate in devolved matters without regional parliaments’ consent

how to ensure regional parliaments dont just copy the central gov

• different electoral systems

• example = UK

• UK uses first past the post system

• Scotland and Wales use proportional representation to ensure a diverse coalition

how can devolution be classified?

• asymmetrical federalism

• radical decentralization