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