Distribution Of Powers (In A Federation) Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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Although not all definitions of federalism emphasize the formal distribution of powers between two levels of government as an essential attribute of a federal government, all federal constitutions make reference to the distribution of powers by enumerating the legislative powers and responsibilities of at least one level of government, and sometimes of both levels. In most federations, a supreme or constitutional court is occasionally called upon to interpret the meaning of these powers, either because of jurisdictional conflicts between the two levels of government, or more frequently because an individual or corporate person questions the constitutionality of legislation that is deemed contrary to the interests of that person.

The legislative powers of one level of government may be exclusive, meaning that the other level of government may not legislate at all about the same subjects, or concurrent, meaning that either level can legislate about a subject. In the event of concurrency, there is an explicit or implicit provision that one level of government, usually the central or “federal” level, has paramountcy, meaning that its legislation takes priority over legislation by the other level in the event that both levels have legislated and that conflict exists between the provisions of their respective laws. Very rarely, as in the case of old age pension legislation in Canada, there may be a paramountcy rule that favors the lower level of government.

Diversity Of Constitutional Distribution Of Powers

Federal constitutions also contain a rule that one level of government, usually (although not always) the lower level, may legislate about all matters not explicitly provided for in the constitution. This allocation of power over unspecified matters is known as the residual power. In the U.S. Constitution, the Tenth Amendment provides such a rule, assigning residual power to the states “or to the people.” Canada and India are unusual among federations in assigning residual power to the central government. Most others, including Argentina, Australia, Germany, Mexico, Russia, and Switzerland, assign residual power to the provinces or states. The significance of the residual power depends in part on the comprehensiveness of the list or lists of enumerated powers.

Constitutional distributions of powers have tended to become more detailed and complex in modern times, as the scope of public policy has broadened. For example, the Constitution of the United States lists only eighteen subjects about which Congress may legislate, while the Constitution of Australia, largely inspired by that of the United States but drafted more than a century later, lists thirty-nine subjects about which the national Parliament may legislate. Neither of those constitutions specifies the legislative powers of the individual states, on the assumption that the individual states retain the residual power and that specification is therefore unnecessary.

Some other federal constitutions include several categories of enumerated powers. For example the constitutions of Canada and India both include separate lists of exclusive federal powers, exclusive powers of the individual states (provinces in Canada), and concurrent powers shared by both levels. The lists are much longer in the Indian constitution, reflecting its more recent origin, than in the Canadian constitution, on which India’s is largely modelled. In Canada, as already noted, the concurrent power over pensions is subject to a rule of provincial paramountcy. However, other concurrent powers in Canada, over agriculture, immigration, and the export of natural resources, are subject to a rule of federal paramountcy.

The German constitution has separate lists of exclusive federal powers, concurrent powers with federal paramountcy, and subjects about which the federation may enact “skeleton” or framework provisions, with the individual states (the plural term for which is Länder in German) being left to fill in the details. The list of concurrent powers is by far the longest of the three lists. Like the constitutions of Australia and the United States, that of Germany leaves the residual powers of the lower level of government unspecified. The constitution of Brazil follows a somewhat similar pattern, except that the concurrent powers are referred to as “common” powers, and the fields in which federal legislation can only establish general principles are referred to as concurrent.

The constitution of South Africa is unusual in that it includes a list of concurrent powers and a list of exclusive provincial powers but not a list of exclusive powers for the central government.

Common Features Among Constitutions

Although distributions of powers vary from one federal constitution to another, some common features may be observed. Militar y and naval defense, foreign and interstate trade, currency and monetary policy, and weights and measures are responsibilities of the central government in all federations. Citizenship is normally a federal responsibility, except in Switzerland. Education, health, and municipal affairs are almost always assigned to the states or provinces in federal constitutions, either explicitly or otherwise. Criminal law is exclusively federal in Argentina, Brazil, Canada, Russia, and Switzerland, concurrent in Germany, and left to the subnational governments in Australia. In the United States, most criminal law is made by the states, but Congress has established a number of “federal offenses.” Authority over the environment, taxation, transportation, and communications may be allocated in various ways.

In most federal constitutions, it is assumed that executive and administrative powers are divided in the same way as legislative powers, but this is not always the case. In Germany, legislation in the concurrent fields is implemented and administered by the Länder, although mainly legislated at the national level. In Canada, the uniform code of criminal law, legislated at the national level, is administered by the provinces. Another complication is that the making of treaties, an executive power exercised at the national level, may override the legislative powers of the states, as it does in the United States, India, and Australia, but not in Germany or Canada. Canada and India also give the federal executive the power to disallow legislation by the lower level of government, although in Canada this power has fallen into disuse and is not likely ever to be revived.

In practice, the scope of the central government’s authority has tended to expand in most federations at the expense of the authority of the states or provinces, particularly, but not only, in times of war or economic crisis. Geographical mobility of the population and the growth of the welfare state have reinforced this trend. In some cases federal authority has been formally increased by amending the constitution. More typically it has been increased by permissive judicial interpretation of federal powers or because central governments have used their greater financial resources to intervene in areas of jurisdiction formally reserved to the states and provinces. Conditional grants to subnational governments have been a particularly effective way to impose federal priorities and policy preferences on them. Allocation of the residual power to the subnational governments, as in the Tenth Amendment to the U.S. constitution, has proved to be almost totally ineffective in resisting this tendency toward greater centralization of power.

Bibliography:

Corwin, Edward. The Constitution and What It Means Today, 9th ed. Princeton: Princeton University Press, 1947.
Hueglin,Thomas, and Alan Fenna. Comparative Federalism: A Systematic Inquiry. Peterborough, ON: Broadview Press, 2006.
Reesor, Bayard. The Canadian Constitution in Historical Perspective. Toronto: Prentice-Hall, 1992.
Watts, Ronald. Comparing Federal Systems, 2nd ed. Montreal: McGill-Queen’s University Press, 1999.
New Federations: Experiments in the Commonwealth. London: Oxford University Press, 1966.
Wheare, K. C. Federal Government, 4th ed. New York: Oxford University Press, 1963.