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UNITED STATES FEDERALISM Francesca Rosa UNITED STATES FEDERALISM Francesca Rosa

Scheme of analysis ✤ Historical Introduction ✤ The (federal and territorial) form of government 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 Historical introduction ✤ Colonization process (XV - XVI century) > ✤ ✤ corporate 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. ) 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 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 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 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 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. Parliamentary government ✤ ✤ ✤ Executive and legislative powers have two different Presidential vs. Parliamentary government ✤ ✤ ✤ 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. Parliamentary government ✤ ✤ ✤ Executive and legislative powers have the same Presidential vs. Parliamentary government ✤ ✤ ✤ 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 powers flexible separation of powers Presidential vs. Parliamentary government (n. 2) strict separation of powers flexible separation of powers people > legislative people > executive people > legislative > executive no confidence rule no 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 ✤ ✤ Legislative > Constitutional monarchy ✤ The Monarch exercises the three state functions ✤ ✤ Legislative > Royal assent ✤ ✤ Executive > Government 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 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 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 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 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 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 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 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 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 Government 1) Short term > The Congress tends to prevail in Equilibrium of Presidential Government 1) 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 autonomy 1) Federal constitution implies the existence of state constitutions > the State constitutional autonomy 1) 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] 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 government a) Popular rule b) No Monarchy c) Rule of law

Electoral systems ✤ Majoritarian > effective governance ✤ ✤ ✤ Plurality > majority of 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