Samenvatting van hs 3 t/m 6 in het Engels, enkele (voor mij) moeilijke begrippen heb ik tussen haakjes in het Nederlands erbij gezet. De eerste twee hoofdstukken ontbreken, omdat deze vooral algemeenheden bevatten.
Chapter 3: Federalism, Unitarism and Decentralization
Federalism occurs where the component regions of a state have their privileges, especially their
constitutional autonomy, their legislative competences and their participation in federal decisions,
enshrined in the national constitution.
The opposite is unitarism. Power can be devolved to regions but can also be taken back without their
involvement. There are no clear features that can determine whether a system is a federalism or a
unitarism, ergo, there are many shades of grey.
A federalism however displays the following characteristics:
The territory of the state is divided into smaller territorial sub-units.
Sub-units possess regulatory powers and separate institutions which are autonomous with
respect to the central authority.
Federal law has supremacy over the law of the sub-units. If this isn’t the case, it’s a
confederation. (if any one power can be exercised by only one level at a time, federal
supremacy is not necessary (Belgium))
The sub-units are represented at federal level. (crucial)
The codification contains the autonomous powers and the representation at federal level of the
sub-units.
The sub-units participate in changing the constitution.
A constitutional court resolves conflicts between the central authority and the sub-units over
the scope of their powers.
In the US and Germany, the rule is what the federation doesn’t regulate, belongs to the individual
states. In Canada for instance it’s the other way around; what the provinces don’t regulate, belongs to
the federation.
In some countries, like Spain, Belgium and Iraq, a federation model was adopted to ease tensions
between cultural groups while preserving the country as a whole.
Unitary states can also show signs of federalism. Think of the Dutch Eerste Kamer. Some unitary
systems allocate more power to their regions than mildly federal systems do.
There are different types of distinctions between forms of federalism. You have the integrative (states
that used to be independent pool their powers (Germany, US)) and the devolutionary (unitary states
split up (post-colonial Mexico, p.c. India)) type.
You also have symmetrical (each region is equal) and asymmetrical federalism. The latter can also be
said for unitarism. For instance, Spain has an asymmetrical decentralization.
The difference between devolution and decentralization is that devolution points out to the transfer of
legislative powers and is mostly asymmetrical. Decentralization has more symmetry and is limited to
administrative and regulatory powers.
The EU functions along the lines of slightly asymmetrical (Euro-countries enjoy less autonomy)
integrative federalism. The EU is not exactly like a federalist state. It secures the position of the
member states to a very high degree.
United States
All 50 states have their own constitution, are all republics and have a presidential system. All State
parliaments (accept Nebraska) are bicameral. The head of government is the directly elected governor.
Each State has its own State court system.
Congress operates as a bicameral federal parliament (Art. 1) and is the federal legislature. The House
of Reps is elected nationwide (Art. 1 (2) and 14th amendment) and represents the people, the Senate
represents the States. Each State is represented by two (Art 1. (3)) directly elected (17 th amendment)
Senators.
,The Senate’s consent is always required to pass legislation. They have to approve treaties and
executive officers and judges. They also can start impeachments. So they play a crucial role in federal
lawmaking and checks and balances.
In the House of Reps, every State has at least one member, but this can be more depending on the
votes their candidates get.
Separation of powers is a crucial concept in the US Constitution. When applied to Congress, it only
has those powers which the constitution explicitly names. If it’s not in the constitution, States can
exercise it by themselves. (10th amendment). They have residuary legislative powers, meaning every
power that is not prohibited or delegated to the federal level by the constitution. But where the
constitution has power, it is superior to State law. (Art 6.)
The constitution states the core legislative powers of Congress (Art. 1 (8)). Additional powers were
added by other provisions and subsequent amendments. Explicit prohibitions are named in
amendments (like the 1st) and in the constitution (Art. 1 (9)).
This all may seem strict, but the commerce and the necessary and proper clause (Art. 1 (8)) give some
space to operate. In McCulloch vs. Maryland the Supreme Court deemed it necessary and proper for
the Federation to open a national bank, although the constitution didn’t originally give them that
power.
In Heart of Atlanta Motel vs. US the Supreme Court held that Congress could ban racial
discrimination based on the fact that it could effect interstate commerce.
Another way for Congress to influence State law is to grant States more subsidies if they pass certain
laws. They did that with minimum drinking age and federal road building subsidies.
In US vs. Lopez the extensive interpretation, however, was limited. The SC found it too far-fetched
that bringing a gun to school would influence economy and interstate travel. This prevents Congress
from having infinite powers.
The federal character is also reflected in the presidential election system. Each State has 2 electors
(equal to Senate seats) plus the number in seats in the House of Reps. The presidential and vice-
presidential candidates must be from different States, since electors can’t vote for two candidates from
the same State. That they are chosen by electors comes from art. 2 (1) and 12 th amendment.
The US has 51 judicial systems, one nationwide system and 50 State systems. States determine for
themselves how they manage their judicial system. The US Supreme Court is the highest federal court
and is established by constitution. Lower federal courts are established by federal statue (Art. 3 (1)).
State and federal courts operate parallel to each other.
Germany
The Federal Republic of Germany consists out of 16 Lander. They all have their own constitution and
their own unicameral parliament, or Diet.
The Bundesrat is a co-legislative chamber next to the directly elected parliament, or Bundestag.
All State governments rely on the support of a majority in their Parliaments.
The Bundesrat consists of members of a State’s government. When a state’s government changes, the
Bundesrat changes. Each State is allocated a fixed number of members (Art. 51 (2+3)).
The presence of the Bundesrat next to the Bundestag ensures that the State governments play an active
role in federal law. However, in contrast to the US, the Bundestag can overrule the Bundesrat. In that
sense Germany is more a democracy than a federation.
The federal aspect of the state is also reflected in the directly elected Bundestag. Party lists are not
national lists but State lists. It aims to have not only proportional representation between political
parties, but also between States (namely a regional spread of membership of the Bundestag).
, If a power is not enumerated in the Basic Law a being subject to federal legislation in one way or
another, this power is retained by the States. Like the US Congress, the German federal lawmaker
(Bundestag and Bundesrat) relies on a competence catalogue from which it derives power to legislate,
while the States keep residuary legislative competence. There are two of these catalogues. The first
category of federal competences are the exclusive federal competences, where only the federal
lawmaker can legislate, unless a federal statue explicitly authorizes the States to legislate as well
(foreign relations, air traffic, citizenship). The other category is concurrent legislation, where States
can legislate only where the federal lawmaker hasn’t already done so (labour law, waste management).
Any areas that are neither exclusive federal competences nor areas for concurrent legislation remain
exclusive State competences.
In practice, States coordinate this activities with each other. Think of the design of police uniforms,
high school diplomas, etc.
The Federal President is the head of state. An electoral college called Federal Convention elects him.
It’s a single-purpose gathering. It comprises all the members of the Bundestag, plus an equal number
of delegates who are elected by the parliaments of the 16 States. The distribution of the last group is
accordingly to the State’s share of German population. The convention reflects both the majoritarian-
democratic principle and the federal principle of the German Constitution.
States will have to accept that federal law has supremacy over State law and States are expected to
execute federal law once it’s adopted. While the US system places a strong emphasis on the separation
of powers (here the federal executive has to set up agencies of its own if it wishes to implement
federal legislation), Germany places s strong emphasis on cooperation, both at the adoption and
execution stage. In the US state and federal courts operate in hierarchies next to each other, in
Germany State courts apply also federal law, with a federal court as the higher supervisor.
United Kingdom
The UK neither wishes to become, nor wants to join a federation. The practical benefits of power
sharing thus come from devolution. The Greater London area, Scotland, Wales and Northern Ireland
all have been ‘devolutionized’. Scotland has the most far-reaching devolution. Its parliament can
exercise all legislative powers for Scotland, unless these powers are forbidden, reserved to
Westminster (enumerated in a detailed list with a.o. defence, foreign affairs, currency, fiscal and
economic policy) or until Westminster reassumes its power to legislate in Scotland.
Culture, education, tourism and health care are strictly Scottish business. Apart from its general
overriding competence, Westminster will by convention only legislate for Scotland in a devolved
matter if the Scottish parliament has accepted a ‘Sewel motion’ and has expressly invited Westminster
to pass a statute for Scotland. They are not uncommon, but mostly the exist out of a request to extend
planned legislation for Wales and England to cover Scotland as well.
As long as Scotland is part of the UK, its legislation may not interfere with EU law. UK statutes,
however, can.
The difference between devolution and federal systems is that within federations States derive their
power from the constitution itself, while devolved entities receive theirs from a central government.
This conferral can be enhanced or reversed at will by the central authority.
Neither Scotland, nor Wales, nor N.I. have a formal say in devolution decisions, because neither
country is represented at the central level as such.
De Westlothian question houdt in dat Schotse, Welshe en Noord-Ierse parlementsleden wel een stem
hebben in zaken die alleen voor Engeland gelden, maar door devolution niet mogen stemmen voor
zaken die alleen betrekking hebben tot hun eigen land. Dit kan eigenlijk niet beantwoord worden
zolang niet duidelijk is wat of wie er nou precies vertegenwoordigd is in het nationale parlement.
France
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