concepts of Federalism Basic comparative concepts of Federalism Thursday

Basic Elements of Federalism Constitution Shared Rule Self Rule

What is a federal system? A federal political system involves (at least) two spheres of government within the same polity, each with a measure of constitutional autonomy, each directly governing and accountable to the people (or a section of them).

Different goals of Federalism Vertical Separation of Powers Accommodate Diversity Strengthen the smaller Units Economic Integration Avoiding secession Main Challenges and Critics of Federalism Inefficiency Two Complicated Inequality No leadership

Pairs of competing values Federalism balances and enables competing values to be secured: Self-rule and shared rule Unity and diversity Uniformity and difference Solidarity and self-reliance Co-operation and competition One challenge in designing a federal system is to capture each of these in a suitable way

Other constitutional values Federalism must be combined with other constitutional values, in both spheres of government, for its benefits to be fully secured. These include: Legitimacy Democracy Constitutionalism, including the rule of law Effective and accountable government Mutual respect; a willingness to share power; appreciation of diversity, solidarity, tolerance

Importance of institutions Importance of specifically federal institutions are obvious (eg division of powers) Institutions of government equally important Mechanism through which federalism delivered Mechanism through which other values delivered Institutional design must capture Aspirations for federalism Aspirations for government generally

General observations Many of the institutions that we presently use were designed for unitary states They need to be fully adapted to the different context of federalism Range of possibilities is not fixed Increasing experimentation in recent years Eg asymmetry, forms of co-operation

Comparative federalism Comparative constitutionalism now a very hot topic Relevant to: Making a Constitution Using a Constitution (in particular, interpretation by courts) Problems of method of comparison Particularly for institutional comparison

Variations between federations Degrees of diversity State of the pre-federal state(s) History Legal system Legal philosophy Doctrine Goals of Federations Democratic system

Institutional building blocks: overview Two (+) spheres of government A division of powers A division of resources Constituent representation in central institutions (some) constituent autonomy with own institutions Prescribed common standards in relation to, for example, governance, rights, economic union Entrenched Constitution, effectively enforced

Two spheres of government Representing the people, grouped in different ways, allowing the emergence of different majorities & minorities How many units? Not too many, not too few… Borders. How are they drawn & changed? According to what criteria? Symmetry or asymmetry

Division of powers What powers? Potentially, legislative, executive, judicial How? Horizontal/vertical/mixed Exclusive/concurrent/shared Provision for co-operation? Who gets what?

Division of resources This includes taxation, other revenues, loan funds, grants Mechanism likely to be influenced by the approach to the division of powers Horizontal/vertical Exclusive/concurrent Fiscal Equalisation Bases Process Constitutional mandate?

Unit representation at the Centre Why? Mixture of symbolic and practical reasons Typical mechanisms for representation Upper House of central legislature Making and changing Constitution Other options Choice of President/Head of State Composition of government/cabinet Composition of Constitutional Court Central Bank; Fiscal Commission, etc

Institutions of the federal units Designed with federal and other governance values in mind Quality equally important Significance of autonomy (within overall constitutional limits) Separate sub-national constitutions? The issue of secession

Common standards Many federations prescribe certain common standards, applicable to both spheres of government, in the Constitution itself. Typically these apply to: Governance (democracy, accountability, republicanism) Human rights Economic union (mobility of people, economic activity)

Constitution of the federal state The Constitution should: Be made by a suitable process Create the central & constituent governments Provide the institutional framework Provide the federal framework Provide the means for its own alteration

Protection & enforcement A mixture of rigid and flexible Federal quality of amendment procedure Effectively enforced: Usually, general or specialist constitutional court Other options? Switzerland (sui generis). USA? Techniques for conflict avoidance: SA Some internal flexibility eg through co-operation

Challenges Making a commitment to federalism Developing a federal culture Building sufficient capacity in smaller, poorer units Ensuring accountability, transparency, responsiveness in all spheres of government and for shared programs Avoiding unproductive competition & disputes Providing flexibility to meet new needs

Distribution of Powers Self Rule

Main Questions: Purpose of Distribution Who decides? Criteria‘s What is distributed Concept and Technique of Distribution

Who decides Constitution maker Federal Legislature Both Court (US, EU) Common Law: Family Law, Property Law, Contract, Criminal Law, Procedure, commercial law etc.

Purpose of Distribution and Criteria’s Purpose Criteria’s Principles Legitimacy Efficiency Subsidiary Principle Diversity Financial Capacity Democracy Commerce Clause Justice Need for Coordination Necessary and Proper Clause Need for a uniform solution Interest of the task limited to the region Delegation to Local Authorities

What is distributed Branches of Government Financial Competences Governmental Tasks Constitution Making Income: Taxes, Grants, Bonds, Loans Foreign Policy Incl. Defence Legislation Individual / col- lective rights Execution Mineral Resource, Water etc. Public Services Judiciary Police Education, Cul- ture Common Law, Codi- fication Expenditures Health, Environment Spending Power Economy and Development Financial Equalisation Civil Law Common Law

Techniques of Distribution Concept Technique Bottom up Exclusive Parallel Top Down Concurrent Parallel Distribution General Clauses Supremacy Detailed Regulations

Legislatures in federations The first of the governance institutions Others: Executive Courts All exist in both federal & unitary states All are necessarily affected by federalism NB: need to consider both spheres

Underlying themes Legitimacy Democracy (representation of the people overall Federalism (representation of the people federally organised) Effectiveness Capacity to do the job In a way that reflects the federal character of the polity

Context Legislatures are affected by: Form of executive government Presidential Parliamentary Other Use of direct democracy Choice of electoral system Concept of federal division of power

What (federal) legislatures do Make/approve law Authorise tax/expenditure/budgets Accountability role Role in constitutional change Treaty ratification? Role in executive/judicial appointments? Other specifically federal functions? Federal intervention; interstate compacts, grant distribution etc

What (federal) legislatures don’t do Have final authority over all subjects of legislation Have final authority over the constituent units Other federal limits on the manner in which they exercise their powers? Requirement of uniformity? Principle of federal comity?

Designing a federal legislature How to capture both: Legitimacy Effectiveness In a way that supplements Democracy Federalism So as to carry out the tasks required

The usual answer (applicable in most federations) A bicameral legislature, comprising A popular chamber, performing the traditional democratic role A federal chamber, performing a specifically federal role In fact, a bit more complicated. Consider: How each Chamber is constituted Who does what?

The “popular” Chamber Represents the people overall Has powers to match (money; government confidence) Elected for fixed or flexible term Federal influences: Electoral system Units as electoral building blocks Minimum unit representation Other

The “federal” Chamber What does it mean to be a federal Chamber? Some variables: Representation of units or of people organised in units Symmetry or asymmetry Powers Significance, for federalism

Two (proto) types (on which many variations are possible) Type 1: Federal chamber represents the units as units Governments or legislatures? Veto over legislation affecting units Other? Eg judges, treaties, constitutional change, federal fiscal arrangements Probably not: budget, government confidence Co-operation between governments internal to the federal legislature

Two prototypes (continued) Type 2: Chamber represents the people organised in federal units Electoral system? Scope of veto over legislation? Other? Probably not: budget government confidence Co-operation between governments external to the federal legislature

Relations between Chambers Potential for disagreement (Majoritarian) democracy v federalism Different party political majorities Options for dealing with disagreement Do nothing Internal resolution mechanisms (eg mediation; joint sitting) External resolution mechanisms (new elections, referendum)

Unit legislatures Likely to reflect federal model, although (somewhat) less likely to be bicameral Potential to extend federal principle to governance within unit (eg by representation of local government) Usual legislative functions Particular federal functions?

Forms of Federal Executives and Legislatures in Selected Federations (Watts)

Federation Executive Legislature Head of Government Head Fe- deration Bicameral unic. Leg. Austr. Cabinet Prime Mini. Monarch Bicamer. Austria Chancellor El. Presid. Belgi. Canada Prime. Mini. Germa. Pres. El. Assembly Malays. Prime.Min. Sel. Her. rulers Spain CH Fixed term Exec.Dire. Rot. Pres. US Sep. Pres. Congress President Pres. Elected

Variations in Selection, Composition and Powers of Second Chambers S. Watts

Selection Composition Powers Role App. By Fed. Gov. CA Mal. 63% Seats Equal Regio. Repr. CA Absol Veto Mediation US, CH Legislature CH; US, AT AU MY App. By Fed. Gov. Nom. Pr. Equ. St. Re. AU, US,CH Abs. Veto f. some Leg. Legis.; int. Gvt Rel ZA App. State Gov. GE 2 Cat. Of St. Repres. CH Susp. Veto time ES MY Ind. El. State legis. AT IN MY Weighed. St. Repr. AU. I. Susp.Veto GE Dir.El. Simpl. Plur. CH, US Weighed St. Repr. IN, AT Deadlock: joint Sitting Dir. El. Prop. AU Ad.repr.for other IN,MY Deadlock: Diss. Joint Sit. Choice left to Cantons CH Min. reg. repr. ES,BE Money Bill Sus Veto IN,My Mixed. BE.ES, MY

Constitution Making

Constitution Constituent Power Decentralization Centralization Legitimacy: Treaty, Agreement, Constitution…? How?: Procedure Step by Step International Community Inclusive Who? Exclusive Who decides?