1.Foundations
The United States was the first modern nation, which from the moment of its founding was committed to a federal path. The origins of the United States federation are in 13 British colonies, which by the time of the American Revolution created the confederation on the basis of Articles of Confederation (which were adopted by colonies between 1777 and 1781).
In
1787 the Constitutional Convention consisting of delegates of colonies
adopted the United States Constitution which up to date is the basis for
the American federation.
The
United States is a federation consisting of 50 states and a federal district
(District of Columbia). It also encompasses two federacies (Puerto Rico,
Northern Island), three associated states and three local home rule territories.
The US Constitution provided the American federal system with a well defined framework of checks and balances which has become finally entrenched over 200 years. Power is divided within the general government between the executive, a bicameral legislature and judiciary. It is further divided between the federal, state and local arenas of the government. This compound division of power has given rise to a non-centralized matrix of governing bodies with sufficient redundancy of structure and function to ensure efficient cooperation.
The main purpose of the American federation, as expressed by Federalist Papers, was to protect individuals from the tyrannical nature of the federal government. That was the main reason of vesting all powers not specifically enumerated to the federal government in the states.
2.Question
of Competences
The general concept of division of powers between the federal government and states is based on the principle of limited federal powers. It means that the powers of the federal government are limited to the limited and enumerated powers granted by the U.S. Constitution.
This limited concept should be contrasted with the nature of state power. Generally, state powers are “inherent”, what means that states have in certain traditional areas the police power, e.g. in matters of public health, education and criminal law. The execution of powers in these matters is presumed valid unless it violates some specific limitation imposed by the US Constitution. The powers of the Congress, apart from constitutional textual limitation, are also limited by the guarantees of fundamental rights contained in the Bill of Rights. It should be noted that through 14th Amendment, the guarantees of fundamental rights contained in the Bill of Rights, restrict also the powers of the states (theory of incorporation).
The legislative powers of the US Congress are specifically granted in Article I Section 8 of the Constitution. The most important of them include the powers to regulate interstate commerce, power to tax and power to spend, power to regulate the District of Columbia, power to regulate and dispose of federal property, declaring war and establishing and funding the armed forces. The federal executive powers are contained in Article II of the Constitution, and judicial powers - in Article III.
The President main powers include the obligation to make sure that the laws adopted by Congress are faithfully executed, the position of Commander in chief of the armed force, and power to make treaties with foreign nations (upon approval of 2/3 of the Senate). He has got also the power to appoint federal officers, grant pardons and power of legislative veto (to be overridden by 2/3 majority of each house).
Although in principle the federal government has powers limited to the specific grants contained in the Constitution, the Supreme Court in its jurisprudence interpreted in broad terms the meaning of specific provisions, thus validating the exercise of powers by the federal government in areas exceeding the specific grants. This concerns in particular the power of the Congress to regulate interstate commerce (Commerce Clause). The Supreme Court interpreted Commerce Clause as including three broad categories of activities the Congress may regulate: (i) channels, (ii) instrumentalities, and (iii) activities having substantial effect on the interstate commerce (Wickard v. Filburn, Heart of Atlanta Motel case). The most recent case concerning the scope of the Commerce Clause is U.S. v. Lopez, in which the Supreme Court was faced with the problem whether the Commerce Clause empowers the Congress to prohibit possessing firearms in school-zones. The Court held, however that the link between gun possession in a school and interstate commerce is too tenuous to qualify as a “substantial effect”, because if it did, there would be essentially no limit to Congress’ legislative power under Commerce Clause.
The scope of the legislative power of the Congress under the Commerce Clause is an area of conflict between the federal and state government, as far as the congressional regulation may encroach upon the traditional domain of states in matters. These traditional domains include in particular education, family law and general criminal law. Another restriction on the power of the federal government is the Tenth Amendment, which provides that “the powers not delegated top the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people”. Two judgements of the Supreme Court give some light on the problems with the interpretation of these restrictions. In National League of Cities v. Usury concerning the constitutionality of the Fair Labor Standards Act, which established minimum wage and maximum working hours for private and public sector employees, the Supreme Court addressed the issue: to what extent may the Congress impose upon the sovereignty of the states. The Supreme Court (in 5-4 vote) ruled that the Fair Labor Standards Act's 1974 amendments, which extended hour and wage coverage to state and local public employees, violated state sovereignty as protected under the Tenth Amendment. However, recently in Garcia v. San Antonio Metropolitan Transit Authority, this decision was overruled (again 5-4 vote). In Garcia the subject of review were also minimum wage and overtime provisions, applicable to all businesses of a certain size. The statute did not contain any exemptions for employees of state-owned mass transit systems. The Court held that the regulation even of state employees is a constitutional regulation of the commerce power, and is not forbidden by the Tenth Amendment.
The important function of the Tenth Amendment is preventing the Congress form interfering in certain ways with a state’s law-making processes. In New York v. United States the Supreme Court held that the Congress may not simply “commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program.
With respect to the Commerce Clause one should note about the other side of the coin, namely the doctrine of dormant commerce clause according to which the mere existence of the federal commerce power restricts the states from discriminating against, or unduly burdening the interstate commerce.
Another area of conflict is the Necessary and Proper Clause that provides for the Congress the area in which it can execute some implied powers. According to the doctrine of implied powers the federal government may validly exercise power that is ancillary to one of the powers explicitly listed in the Constitution, so long as this ancillary power does not conflict with specific constitutional prohibitions. The most important example of the application of this clause is McCulloch v. Maryland in which the Supreme Court held unconstitutional taxation of the federal bank, which was constitutionally established for the purpose of collecting taxes.
3.Organization
of Federalism
The American federation is organized according to the principle of division of state and federal government. Both have different legislative, executive and judiciary organs. However, to some extent there is an interaction between organs of federal and state government.
On
the federal level, the executive powers are vested in the President of
the United States, who is elected on the proportional basis in accordance
with electoral system. The legislature is a result of the Founding Fathers’
compromise between small and large states. According to this compromise,
the House of Representatives is elected in the proportional elections (what
gives bigger representation to large states). The Senate is a counter-balance
to the House of Representatives, as far as there are 2 representatives
of each state in the Senate.
Judiciary
in the United States is administered through a dual system of federal and
state courts. Both system of federal and state courts is three-level -
the trial courts, appellate courts and the highest court (of the state,
or the Supreme Court – the highest federal court). According to Article
III Section 2 of the Constitution federal judicial power includes cases
arising under the Constitution or under federal statutes, cases of admiralty,
cases between citizens of different states, cases between a state or its
citizens and a foreign country or foreign citizens. The federal judicial
power does not include cases where both parties are citizens of the same
state and no federal question is raised. State courts have jurisdiction
over all criminal and civil cases arising under state laws.
The
highest federal court is the Supreme Court. In Marbury v. Madison it
was established that the Supreme Court, as any other federal court may
review the constitutionality of a Congressional legislation.
As
regards the federal structure of the US federation especially important
is decision in Martin v. Hunter’s Lessee, according to which the
Supreme Court may review the constitutionality of a decision by a state’s
highest court, but only to the extent that the decision was decided based
on federal law. Moreover, even if there is a federal question in the state
court case, the Supreme Court may not review the case if there is an “independent
and adequate” state ground for the state court decision. This
means that
if the same result would be reached even had the state court made a different
decision on the federal question, the Supreme Court may not decide the
case. This is an effect of the inability of the Supreme Court to issue
the advisory opinions.
4.Homogeneity
v. Heterogeneity
It seems that the US Federation is based on the principle of constitutional heterogeneity, as far as the states should have the republican form of the government, which it is the task of the United States to guarantee (Guarantee Clause).
But the Guarantee Clause does not preclude diversified solutions in different states. Each of the 50 constituent states of the United States has a constitution of its own design. The state government derives its authority from the people of the state, not from the federal government.The states possess extensive power to determine, organize and control their political structures and to set and levy their own taxes, serve as an important focus of political identification, play a major role in traditional areas of state responsibility, provide oversight of local governments, and participate both formally and informally in the machinery of the federal government. Apart from the electoral college and representation in the Senate, they determine congressional districts and they informally influence politics through the National Governor’s Association.
Protection
of individual freedoms is an important factor while considering the issue
of homogeneity. In the United States, fundamental rights are guaranteed
on the federal level through the US Constitution and subsequent Amendments
and on state level through state constitutions. However, in this respect
of particular importance is the XIV Amendment which provides the guarantees
that “no state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States, nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the
laws”. Moreover, by the theory of incorporation through the XIV Amendment
states have the obligation to guarantee all rights that are guaranteed
in the Bill of Rights.
There
are also certain rights that are guaranteed because of the federal character
of the US. For example, in Shapiro v. Thompson the Supreme Court
held that there is a fundamental right to travel and establish within the
borders of the federation. The right to travel limits the power of the
states to limit the in-flow of new citizens, as far as any state regulation
inhibiting upon this right (such as durational residency requirements)
must satisfy the strict scrutiny test, i.e. they must serve the compelling
governmental objective.
5.Conflicts
Probably
the most important conflict, which can be seen in the American federation,
is the power conflict between state and federal governments. The intention
of the Founding Fathers was to create the system that would prevent the
people from tyranny and thus broad powers were given to states. The evolution
of the system created a relatively strong federal government. In this respect,
the particularly important role was of the Supreme Court who broadly interpreted
powers granted to the federation (especially commerce clause). However,
such interpretation created conflicts as it often encroached into the police
powers of the states. As it was presented above, the Congress seems to
show, however, that the power of the Congress has certain borders (in particular
U.S. v. Lopez) and there are certain spheres where the states have reserved
their police powers.
On
the other hand, according to some commentators, the American federal system
evolved into interdependence, rather than a dual world of state and federal
government. The states have been equally likely to cooperate with the federal
government as with each other particularly because they could gain benefits
by participating in national schemes, where the cooperation may bring better
effects than acting alone (e.g. environmental law, which effects extend
over the borders of particular states). The other factor that determined
the creation of such interdependent system was the role of the Supreme
Court in its flexibility in accommodation of changing circumstances and
conflicting interests.
It
should be noted that in the modern doctrine of constitutional law there
are voices of the criticism of the American federalism. For example, Prof.
Rubin and Prof. Feeley of University of Berkeley claims that the United
States are not diversified to
this extent and are not so heterogeneous
federation that the federal system is really necessary. In their opinion
the similar effects could be achievable through the well-developed system
of decentralization[1].
Bibliography:
1.Lawrence
Tribe, American Constitutional Law, 1992
2.Mark
Tushnet (ed.), Comparative Constitutional Federalism. Europe and America,
Greenwood Press, New York 1990.
3.Harry
N. Scheiber (ed.), North American and Comparative Federalism, 1992.
4.Calvin
R. Massey, The Locus of Sovereignty: Judicial Review, Legislative Supremacy
and Federalism in the Constitutional Traditions of Canada and the United
States, 1990 Duke Law Journal 1229.
5. Daniel
Elazar, Federal Systems of the World: A Handbook of Federal, Confederal
and Autonomy Arrangements, Longman Current Affairs, 1991, pp.304-317.
6.Ellis
Katz, The Development of American Federalism, 1763-1865, in Andrea
Bosco (ed.), The Federal Idea.
7.Paul
A. Freund, Umpiring the Federal System, 54 Columbia Law Review 543.
8.Harry
N. Scheiber, Constitutional Structure and the Protection of Rights:
Federalism and the Separation of Powers, in Scheiber (ed.), Power
Divided: Essays on the Theory and Practice of Federalism.