Chapter 7 - Federalism

POLI 101

Unitary Systems

all sovereign authority of that nation resides in one governing body - the national government

• relatively homogenous - smaller

• - single language, nation state (ethnicity, usually)

  - sometimes regional distribution of powers

• can devolve power to local authorities

  - 'quasi-federal' - restricted jurisdiction to do things, power can be taken back by Parliament

• single legislature the ultimate judge of how much power is devolved

• UK, France, Japan, Sweden

Federal Systems

• bigger, more heterogeneous

- more linguistic variation, geographically larger

• ancient inspiration, relatively recent invention

• American founders - contemporary federalism

• India, Canada, Germany, Switzerland, Australia, Russia

Municipal

'creatures' of the province, derive their authority from the province, provinces have final say in what this government looks like

Why federalism?

colonial history: Canada wanted to imitate UK culture rather than U.S.—they were just coming out of the civil war, pressures for unification and priority for economic development: to expand the West

Security concerns (Manifest Destiny)

Challenges for unity

differing language, civil code, legal system…etc in Quebec, distinct cultures of Maritimes - outright hostility to uniting (Anti-Confederation Movement)

damaged brand — civil war in the U.S.

Section 91

Federal: trade and commerce, criminal law, financial power (direct and indirect taxes), military defence, foreign relations and trade

'peace, order and good government' - residual power in the Canadian constitution

Section 92

Provincial:  local or private matters, hospitals, charities, property and civil rights, municipal institutions, education

limited financial power

Lieutenant Governors

• who could reserve legislation

• Federal parliament had power to disallow provincial laws

Paramountcy in the overlap

3 Key Forces

Judicial Review: can modify the powers of the constitution, Jurisdiction: can change in their relative important (eg. healthcare), Government and politicians seek whatever power they can get to remain relevant

Province Building

those who populate institutions (governments) will seek to make them relevant

• maximize the space that's given to them by constitutional rules/capacity

• monopolizing regional representation (voice of the province = the voice of the province's premier)

• grows the federal government and can foster some competition

Quasi-Federalism

1867-1896: provincial politics seemed second rate/not important to what's going on—-created provinces for the first time - some were not that relevant , BUT courts stay pretty true to intention of founders (but planted seeds) so they stayed true to the notions of centralization

• big projects were undertaken by the federal government (eg. The Canadian Railway)

Classical Federalism

1896-1914: more equal relationship between the federal and provincial spheres, courts empowered the provinces (mostly in business regulation), the final court of appeal was not the Supreme Court of Canada but the House of Lords in London a.k.a. Judicial Committee of the Privy Council (JDPC)

House of Lords / JDPC

tasked to interpret the language of the CA 1867 (areas of federal/judicial jurisdiction). Flaw: began to interpret them in favour of provincial government activity over federal gov. activity

results in JDPC favouring provincial gov (sec. 92)

provinces take primary space in things that have an impact on the economy, banking industry. Security regulations done by provinces (capital market/stock exchange is regulated by the province of Ontario) all the way until the 21st Century

Emergency Federalism 

1914-1960: following WW1, Great Depression, WW2 - depression resulted in the emergence of more central power and control Constitutional amendments added to the federal power

 “social redistribution”

Social Redistribution

transfer of income and wealth from some individuals to others through a social mechanism (eg. Employment Insurance and Old Age and Security)

Employment Insurance (EI) 

a government program that provides temporary financial assistance to unemployed workers

Old Age and Security (OAS)

public pension for the elderly - a monthly taxable pension available to seniors aged 65 and older who meet legal status and residence requirements

Cooperative Federalism

1960-Present: provincial jurisdictions are coming into their own (universities, hospitals, education), more balance from the courts and Supreme Court comes in as a neutral arbiter (unlike House of Lords)

bigger and more relevant provincial states, politicians are better known with a larger scope of responsibility

Confederacies

leagues and alliances, especially of confederate states

Charlottetown accord

1992: recognized inherent right of ‘Aboriginal self-government’

• charter rights would apply to these self governing entities as they emerge

Bicameralism

(Of a legislative body) having two branches or chambers

Asymmetrical federalism

An approach to federalism in which different provinces could have somewhat different powers

Social Union Framework Agreement

The agreement reaffirmed mobility rights for Canadian citizens, and the governments of Canada pledged to establish "no new barriers to mobility", and common equality for social programs across canada (healthcare, education)

Concurrent powers

areas where both the federal government (Parliament) and provincial governments (legislatures) can make laws, leading to potential overlaps

Disallowance

Ability to strike down an existing law (federal gov can annul provincial legislation)

Reservation

Lieutenant gov. Right to withhold royal assent, delay a law and wait for GG to decide

First minister’s conferences

Premiers and PMs gather and discuss financial and judicial questions (not a lot since 2003 cuz they now have their own Council of the Federation)

Council of federation

organization comprising the thirteen premiers of Canada's provinces and territories, created to promote intergovernmental cooperation and present a unified provincial-territorial front on issues of national importance