Federalism, unitarism and decentralization Flashcards
1
Q
What are the key components of federalism?
A
- Division of territory
- Federal supremacy
- Regional autonomy
- Codification of the sub-units’ powers
- Participation in constitutional amendment
- Constitutional Court
2
Q
What is the difference between integrative and devolutionary federalism?
A
- Integrative - Different states decided to get together and form a federation
- Devolutionary - One big state turned into a federation because it devolved so much power to its sub-units
3
Q
What is meant by ‘symmetrical federations’?
A
- A symmetrical federation is a federation in which each component region is considered equal because they all have the same scope of regional power
- An asymmetrical federation is a federation where some regions have greater autonomy than others
4
Q
Is the EU a federation?
A
Characteristics of slightly asymmetrical integrative federalism:
- Large territory made up of smaller sub-units
- Bicameral – The European Parliament represents the people of Europe and The Council which represents the government of the sub-units
- Sub-units are involved in EU law-making
- EU law is applicable in the sub-units and has supremacy
- MS (sub-units) are involved in amendment of the treaties
- Power is clearly separated and the EU can only be involved where it was already given power
- All sub-units have the same status
- Court of Justice as a Constitutional Court
5
Q
US - How is federalism reflected in the Senate?
A
- The Senate represents each State:
- Every State, no matter its size, is represented by 2 Senators
- Each Senator is elected within its own State by the people directly - In the constitutional amendment process, no State may be deprived of equal representation in the Senate against its will
- In the powers it has:
- The Senate’s consent is always required in the legislative procedure
- It must give its approval for the President to conclude international treaties
- The Senate tries impeachments (even though the individuals concerned by impeachment have been appointed by the President), by 2/3 majority of members present
6
Q
US - How is federalism reflected in the House of Representatives?
A
- The House of Representatives represents the people of the United States – It is directly elected:
- Each state must have at least one seat but can have more depending on its population
- The States themselves decide on the borders of the single-member districts that correspond to the number of seats each State is allocated
7
Q
US - How is federalism reflected by the vertical separation of power?
A
- Vertical dimension which separates the federal level of government from the national one
- Congress only has those powers which are explicitly enumerated in the US Constitution:
- Residuary legislative powers mean that the States can exercise power whenever it is not prohibited by the Constitution
- Congress is explicitly prohibited from exercising legislative powers in certain fields (Art. I(9) and 1st amendment)
- But some of the powers conferred upon Congress are open-ended (the ‘spending power’, the ‘commerce clause’ and the ‘necessary and proper clause’ - The US Constitution enjoys supremacy over State law and State Constitutions
8
Q
US - What are the ‘spending power’, ‘necessary and proper clause’ and the ‘commerce clause’?
A
- ‘Spending power’ – Congress has the power to lay and collect taxes and to provide for the common defence and general welfare. This is limited though:
- (1) it must be related to the general welfare
- (2) stated unambiguously
- (3) it must be clearly related to the programme’s purpose
- (4) it must not be otherwise unconstitutional
- But, Congress can use its budgetary power to encourage States to enact equivalent regulations themselves where it does not have power, by giving subsidies for example - ‘Commerce clause’ – Congress may regulate commerce with foreign nations, amongst the several states and with the Indian tribes
- ‘Necessary and proper clause’ – Congress can make all laws which shall be necessary and proper for carrying into execution the foregoing powers vested by the constitution
- Both clauses give rise to federal regulatory and criminal-law competences
9
Q
US - How is federalism reflected by in the presidential elections?
A
- The President and Vice-President are elected by electors from the States, the electoral college:
- Each State is entitled to have as many electors as it has Senate seats (2) plus the number of seats it has in the House of Representatives (at least 1)
- So each State gets at least 3 electors
- 100 Senators + 435 Representatives + 3 for Washington DC = 538 electors - Each state decides on the voting procedure to choose their electors
- The presidential and vice-presidential candidate voted upon must be from different States
- Electors vote by absolute majority of its member:
- If there is no absolute majority, the House votes for the President amongst the 3 strongest candidates by absolute majority
- The Senate will vote for the Vice-President amongst the 2 strongest candidates by absolute majority
10
Q
US - How is federalism reflected by the executive and judicial system?
A
- Judicial:
- Each State has its own separate court system
- There is also in parallel a system of federal courts which have their own hierarchy
- Each State decides for itself when and where to set up State courts
- Each State determines the procedure for the appointment or election of State judges
- The State Courts must apply federal law and federal law enjoys supremacy over State law
- The highest court is the US Supreme Court
- Federal judges are appointed by the President with the consent and advice of the Senate, for life and can only be removed by impeachment - Executive – Each state has its own agencies to carry out activities under State laws but the government has also established its own network of federal agencies
11
Q
GER - How is federalism reflected in the Bundesrat?
A
- Members of the States’ governments:
- Therefore if there is a change of government, the Bundesrat changes too
- No fixed term
- Constant flux
- Cannot be dissolved or re-elected - Each State is allocated a fixed number of votes depending on their population
- Smaller States are overrepresented
- As many members as it has votes
12
Q
GER - How is federalism reflected in the Bundestag?
A
- Directly elected Parliament:
- To represent the German people as a whole - Elected via a mixed-member proportional system:
- To ensure proportional representation between political parties and between States
- Each State has a fixed number of representatives which will be split between parties
13
Q
GER - How are legislative competences divided between the states and the federation?
A
- The federation can only legislate where the Basic Law provides so
- Exclusive federal competences – Art. 71 and 73
- Concurrent competences, the States can only legislate as far as the federation has not done so already – Art. 72 and 74
- The States have remained areas of exclusive competences:
- Cultural policy, primary and secondary education and ordinary policing powers
- In practice, the States coordinate with each other in these areas
14
Q
What are the competences of the EU?
A
• Exclusive competences – Art. 3 TFEU • Shared competences – Art. 4 TFEU • Furthermore, the EU must follow the principles of: - Subsidiarity - Proportionality - Conferral
15
Q
What federal characteristics does the EU have?
A
- All institutions are composed of representatives from all member states
- EU law has supremacy over national law:
- Doctrine of direct effect introduced in Van Gend & Loos
