UNITED STATES FEDERALISM
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Transcript of UNITED STATES FEDERALISM
UNITED STATES FEDERALISMFrancesca Rosa
Scheme of analysis
✤ Historical Introduction✤ The (federal and territorial) form of government✤ The state constitutional autonomy✤ The separation of legislative and administrative
power✤ The guarantee of the constitution
Historical introduction
✤ Colonization process (XV - XVI century) >✤ corporate colonies✤ colonies founded in a social compact
✤ Economic dependency and political autonomy > Colonies’ system of government***
✤ Strict fiscal policy > No taxation without representation > Revolution
The colonies system of government
✤ Governor and Council (executive p.) > Monarch
✤ Legislative Assemblies (legislative p.) > election [limited suffrage]
✤ Local Government > practical and theoretical reasons
Historical introduction
✤ 1774 First Continental Congress > Common Army (1775) + Declaration of independence (1776)
✤ 1777 Articles of Confederation > modification
✤ 1783 Treaty of Paris (peace with U.K.)✤ 1787 Federal Constitution
Articles of confederation (1777)✤ Confederal Congress > every state has the same
influence in the decision making process✤ Weakness >
✤ limited powers✤ strict dependency on the states
✤ Modification > Convention > Bicameral parliament (compromise > art. 1 sect. 1)
✤ Ratification process > art. VII (1788)
Historical introduction
✤ 1788 Federal constitution✤ 1799 Bill of rights (limiting the federation and not the
states)✤ Territorial expansion (south and west)✤ 1861-1865 Civil war > civil war amendments
✤ XIII abolishing slavery✤ XIV due process of law + equal protection clauses✤ XV banning racial discrimination regarding the right
to vote
American constitutionalism
✤ Revolution = Opposition to tho fatherland > British v. American constitutionalism > Constitution:
✤ Written v. not written
✤ Republic v. Monarchy
✤ Higher law [at the top of the hierarchy of the sources of law > special procedure for the amendment > rigid]
✤ Strict separation of powers in horizontal (presidential v. parliamentary government) and vertical (federal v. centralized government) dimensions
Presidential vs. Parliamentarygovernment
✤ Executive and legislative powers have two different (and democratic) sources of legitimacy > 2 elections
✤ No instruments are provided for resolving conflicts between legislative and executive powers
✤ The head of state has the executive power
Presidential vs. Parliamentarygovernment
✤ Executive and legislative powers have the same (democratic) source of legitimacy > 1 elections
✤ Two instruments are provided for resolving conflicts between legislative and executive powers: confidence rule + dissolution power
✤ The head of state has not the executive power
Presidential vs. Parliamentary
government (n. 2)strict separation of
powersflexible separation of
powerspeople > legislativepeople > executive
people > legislative > executive
no confidence rule confidence rule
no dissolution power dissolution power
head of state has the executive power
head of state has a neutral role
Constitutional monarchy
✤ The Monarch exercises the three state functions
✤ Executive > Government
✤ Legislative > Royal assent
✤ Judiciary > Appointment of judges
✤ The presidential government
✤ Double source of legitimacy for executive and legislative powers > elective / hereditary and elective
✤ Strict interpretation of the division of powers principle > /parliamentary government
House of representatives (art. 1 sec. 2)
✤ 435 deputies (1911 statute)
✤ Terms of 2 years
✤ Right to vote > electors of the most numerous chamber of the state parliament
✤ Right to be elected > 25 years + citizen for 7 year + inhabitant of the state he/she represents
✤ First past the post system (federal law) > state legislature defines the boundaries of electoral districts (gerrymandering)
✤ Election of the Speaker (member of the parliamentary majority)
Senate (art. 1 sect. 3)✤ 100 senators > 2 senators for every state, every senator has 1
vote
✤ Popular election (since 1913) > right to be elected: 30 years + citizen for 9 year + inhabitant of the state he/she represents
✤ Terms of 6 year
✤ President > Vice-President of the United States > pro tempore President
✤ 2 powers:
✤ approval of treaties signed by the President
✤ advice and consent (presidential apppintments)
Bicameralism
✤ Perfect in relation to >✤ The legislative function✤ The impeachment procedure
✤ Imperfect in relation to >✤ The approval of presidential appointments
(Senate)✤ The approval of international treaties (Senate)
The executive power (art. 2)
✤ Terms of 4 years✤ Right to be elected: 35 years + natural born
citizen + living in the U.S. for at least 14 years✤ Indirect election > 2 phases
✤ 1) primary elections or caucuses✤ 2) the election of the Electors
The indirect presidential election works as a direct election✤ Electors are elected by the people (1832) >
popular legitimacy✤ Primary elections and caucuses > popular
legitimacy of presidential candidates✤ Electors are chosen on the basis of the
presidential candidate to whom they give their support
✤ The “winner takes all” system of election for the Electors
The President ✤ Commander in chief of the army and navy
✤ Execution and enforcement of federal law
✤ Treaty making power > Senate
✤ Appointment federal civil servants > Senate
✤ Organization
✤ Executive Office of the President
✤ Cabinet (Secretary)
✤ Agencies
Congress > President
✤ The legislative initiative
✤ The approval of the federal budget
✤ The control over the presidential activity (standing committees)
✤ The approval of presidential appointments (Senate)
✤ The approval of international treaties (Senate)
✤ The impeachment procedure
President > Congress
✤ Presents the budget proposal✤ The Congress information of the State of the Union
✤ Sign legislation / Veto bills (Art. 1 Sect. 7 cl. 2)
✤ Delegated legislation (secondary legislation)
Equilibrium of Presidential Government1) Short term > The Congress tends to prevail in the last period
of the presidential term (elections)2) Medium term- Before the presidential “direct election”the Congress played a
central role in the form of government (XIX century)- Presidential pre-eminence (until the Nixon “imperial presidency”)- Resurgence of Congress (Watergate-1972)- New imperial presidency (International context)3) Long term > Pre-eminence of the President (welfare state +
need of a unitay direction of the administrative action)
State constitutional autonomy1) Federal constitution implies the existence of state
constitutions > the federal constitution has to be interpreted together with the state constitutions
2) Written, approuved by a convention and then ratified by the people
3) Apex of the state sources of law system
4) Rigid > special procedure (frequent use of the constitution amendment)
5) Long > dual federalism definition
6) Subject to the supreme law of the land (supremacy clause)
Contents of state constitutions (separation of powers)1) Presidential Government [Governor + Bicameral
Parliament]
2) Institutions of direct democracy– Popular initiative (direct / indirect)– Referendum– Recall
3) Guarantee clause (Art. 4 Sect. 4) > Republican form of governmenta) Popular ruleb) No Monarchyc) Rule of law
Electoral systems
✤ Majoritarian > effective governance
✤ Plurality > majority of votes
✤ Majority > absolute majority of votes (e.g. double ballots)
✤ Proportional > effective representation of different political opinions
✤ Barrier
✤ Premium of seats