Difference-federalism (US) vs devolution (UK)

2024 FEDERALISM: 2) Analyse how devolution in the UK differs from federalism in the USA. Comparative Theory.

Topic 1

Constitutional basis: codified vs uncodified

US 1

-US federal system enshrined in codified constitution

-clear separation of powers between federal and state gov

-each state has constitutionally guaranteed powers (retained powers under 10th amendment-powers not delegated to the federal gov)

Example:

-Each 50 states maintain power to set voting methods (caucus, primaries) and drawing congressional district boundaries (Texas 2025)

UK 1

UK devolution framework based on series of legislative acts passed by parliament -Scotland Act 1998

-Bc UK constitution is uncodified, devolved powers can theoretically be altered or revoked by parliament

Example:

-2017 SC ruling on Brexit, Supreme Court ruled unanimously that the government was not required to consult or gain approval from the devolved legislatures (Scotland, Wales, Northern Ireland) for the Article 50 process- confirming parliamentary sovereignty

Difference 1

Cultural theory

-examines the cultural difference of constitutional basis of governance

-compare fixed division of powers under codified constitution which founding fathers created with intention to create a safeguard against tyranny of central gov by dividing power between state and federal levels

vs US devolution is more flexible and allow parliamentary alteration to devolved powers due to evolving nature of constitution which granted devolution to suit the demands of each individual country and region

Topic 2

Symmetric vs asymetric power

For 2

In US, under federal system, states have equal autonomy, with powers over taxation, gun laws which varies between states

Example:

Texas gun laws differ from California’s

Texas allows permitless constitutional carry of handguns for eligible individuals, whereas California requires a permit.

Against 2

Devolved gov in UK have less autonomy. Devolved powers ultimately depend on Westminster’s will to intervene as devolved legislatures were created under acts of parliament-Northern Ireland Act 1998 and can be overridden or suspended

Example:
-Northern Ireland Assembly has been suspended multiple times by UK Parliament, most recently in 2017,2020 when political deadlock prevented the formation of power-sharing executive.
-During this period, direct rule from Westminster was implemented

-UK gov temporarily took back decision-making power in the devolved legislature.

Difference 2

Structural theory

-difference in institutional autonomy granted to sub-national gov

-highlights US states have broader autonomy than UK devolved gov, which remains subjected to centralised parliamentary control

Topic 3

Judicial role in interpreting federal vs devolved powers

US 3

US SC plays crucial role in interpreting the constitution and resolving disputes between federal and state gov.

Example:

Dobbs v Jackson -returned abortion regulations to be determined by the states not the federal gov, overriding the previous federal protection on abortion Roe v Wade (recognized a constitutional right to abortion under the 14th Amendment)

UK 3

UK judiciary can’t overturn acts of parliament due to parliamentary sovereignty, limiting its role in devolution matters though it can interpret legislative intent and clarify legal boundaries as shown in 2017 SC ruling on Brexit, which required devolved regions’ consent to leave the EU but ultimately confirmed parliament’s sovereignty

Example:  

Gender Recognition Reform (Scotland) Bill was rejected in SC 2023-as it went against the Equality Act passed by Westminster, showcase limit to their ability to protect or expand devolved powers.

Difference 3

Structural theory

-examines the difference in judiciary’s role-US SC having stronger authority in adjudicating federal-state disputes than UK which has more limited interpretive role shaped by parliamentary sovereignty.