I told an American friend who has lived here a decade that the High Court can overrule state supreme courts in purely state law. Stunned. “But I thought Australia was a federation!” No American federal court can do that, unless federal law or the constitution is implicated. Unthinkable. Arguably, in that aspect, the USA is more federal than Australia is.

But what is a federation, or federalism? What makes a system more or less federal? These questions arise not just in academia, but also in debates over drafting or amending constitutions. My interest in the subject began with a seminar paper during law school that compared the developing EU federalism to decentralisation of powers in Belgium and the UK. This essay draws from that paper and some later experiences.

  1. Federalism

Federalism is a type of decentralised governance. Decentralisation is usually discussed in terms of levels or layers of power. Federal, state and local levels, for example. This is distinct from separation of powers within a level, where a state or a federal government has legislative, executive and judicial branches. Decentralisation can be merely administrative, with local government actors carrying out centrally assigned tasks. Or a central government can delegate decision making to local actors, but retain the right to overrule their decisions. Under a third type of decentralisation, devolution, the central government agrees not to overrule local decisions, but can still take back the powers it gave the local authorities. For example, the UK delegated some powers to Wales, but devolved full lawmaking authority in certain areas to Scotland. The UK parliament can resume the powers it devolved to Scotland, although this is politically unlikely.

Federalism differs qualitatively from these types of decentralisation. In Riker’s classic definition, a federation requires “a government of the federation and a set of governments of the member units, in which both kinds of governments rule over the same territory and people and each kind has the authority to make some decisions independently of the other.”[1] This independence is guaranteed through a contract between governments, usually a constitution, which neither can modify without the other’s consent.

Substates may be represented in the federal government. In Australia and the USA, states are equal in senate representation and in constitutional amendment, rather than strictly based on population as one would expect in a unitary (i.e. non-federal) state. In Germany this connection is more immediate: the federal Bundesrat (upper house) is composed of members of Land (state) governments. Such arrangements aim to assure against an overly strong federal power.

Some federal states, such as Australia, Switzerland and the USA, formed by agreement among the constituent units. Others, such as Belgium and Germany, formed by the centre ceding powers to lower layers of government. One way to assess federalism is to look at the degree of independence – are states really independent if a federal court can tell state courts how to interpret state laws? Another approach is to look at how powers are divided between federal and state levels. Indicators of federalism thus can include structural factors such as the composition of federal legislatures or the role of courts, as well as assignment of powers like taxation, foreign policy, education or policing.

  1. Belgium: a federal experiment

Belgium was formed in 1832 from historically and culturally distinct Flemish and French regions, Flanders and Wallonia. It took the first step toward its current federal structure in 1970, with the creation of French, Flemish and German language communities,[2] in response to political pressure that grew alongside Flemish enfranchisement in the mid-20th century.[3] In the 1980s, Walloon desires for economic autonomy led to the creation of Flemish and Walloon regions, and the designation of Brussels as a distinct region.[4] Driven by these forces,[5] Belgium amended its constitution in 1993 to declare a federation of communities and regions.

Each Belgian citizen belongs to a community and to a region. Communities and regions overlap somewhat. The Flemish community and region are coextensive. The Walloon region is French but for a small area near Luxembourg containing the German community. Citizens of the Brussels region may declare themselves members of either the French or the Flemish community. Elected community and regional councils exercise legislative and executive powers. Federal institutions are partitioned along linguistic lines. For example there are two co-equal federal court systems, one operating in Flemish and the other in French.

The communities focus on linguistic and cultural matters, the regions on infrastructure and economics.  The French and Flemish community councils, and to a lesser degree the German community council,[6] exercise plenary powers over a wide range of “matters relating to culture, education, audio-visual media, health and welfare.”[7]  The communities also hold competence over “personal status” matters, which are defined by supermajority vote of each linguistic chamber in the federal parliament.[8]

The Belgian central government remains powerful, but regional and community representatives play a significant role in the exercise of its powers. Classic state competences such as taxation, defence, and social welfare remain under exclusive federal control (Belgian federalism does not include shared competences).[9] The community councils provide 21 federal senators (10 Flemish, 10 French, 1 German).[10] In practice, there is considerable intergovernmental cooperation. For example, in addition to the participation of community legislators in the federal government, communities and regions can represent Belgium internationally in matters that fall within their competence in a domestic context. This requires the federal and substate governments to agree both on which body should represent Belgium in a particular matter, and on a position to present on behalf of the federation.[11]

  • The European Union: what is it?

The European Union (EU) is a political entity, defined by a set of treaties among 28 states. The treaties establish a supranational government, with legislative, executive and judicial powers. The member states assign certain enumerated powers to the EU. In this respect, the EU is federal. As discussed below, however, it is not a federation; it more resembles a confederation, in which states agree to act together (typically in matters such as defence or trade) but remain separate.[12] The EU has exclusive powers in trade, for example, and shares concurrent powers with the member states in other areas, such as immigration and borders. Some member states have created further institutions, notably the euro currency, shared by 19 member states.

Despite having ceded key powers to the EU, the member states retain most of the control over EU law and policy, via a complex institutional structure. The main political actors are the European Council (also known as the Council of Ministers), the European Commission and the European Parliament. The Council consists of government ministers of the member states. For example, when the Council meets in its Justice and Home Affairs (JHA) configuration, its members are the justice ministers of each state. The states select a ‘permanent’ president for the Council, who serves a renewable term of 30 months. Meanwhile, the presidency of the Council also ‘rotates’, with states taking turns chairing meetings of its various configurations for six months each. The Commission is the permanent bureaucracy of the EU. It has 28 departments, led by appointed commissioners, one per state. The president of the Commission, selected by the states for a renewable five year term, proposes a set of commissioners for final approval by the Council. Citizens of the member states directly elect the European Parliament. The heads of government of the states comprise the Council of the European Union, which meets periodically to give high level policy direction to the Council and the Commission.

Together the Council, Commission and Parliament act as the legislative and executive branches of the EU. The Commission and Council comprise the executive, with the Commission acting as the civil service and the Council providing policy direction. Together with the European Parliament, they also legislate. The Council of the European Union directs the Commission to draft legislation to achieve a certain policy – a law on who should qualify for refugee status in the EU, say. The European Council and Parliament then vote to approve or amend the legislation, usually with equal powers but sometimes with the Parliament only able to advise. Parliament votes by majority. Within the Council, voting rules differ depending on the subject matter, but in most areas today legislation passes by ‘qualified majority’ of at least 55% of the member states (i.e. 16 out of 28), representing at least 65% of the EU’s population. The Commission is responsible for enforcing EU law. The Court of Justice of the European Union (CJEU) has final authority to interpret EU treaties and legislation, including adjudicating disputes that arise between the EU institutions and the member states.

  1. Measuring federalisms: Belgium, the EU, UK and USA

One way to assess federalism is through observing key indicators.[13] Beyond the basic fact of separate governments sharing jurisdiction over a given population, the existence of a court to decide which level of government may exercise what power helps to distinguish a federation from a unitary state: if an independent judiciary must guard the boundaries, then real power is at stake. A second indicator distinguishes a federation from a confederation:  whether the entity has a sole international personality, or whether the substates enjoy international recognition and privileges as independent states.

Assignment of responsibilities, or competences, between layers of government can also indicate federalism. Some critical competences must be held by the substates, or the entity is a unitary state with provinces; others must be held at the centre, or the it is fundamentally a confederation not a federation. Powers that states commonly devolve, typically over education and culture, are not very useful measures. Certain sensitive competences, however, only shift from one level to another after careful discussion. The ‘residual’ power is a proxy for the competences substates cannot yield without becoming mere provinces of a centralised state. Residual competences typically include for example the police power or land usage – state powers so basic as not to require formal enumeration. In contrast, competences concerning defence, taxation, currency and interest rates are usually held centrally. Power over military matters is a proxy for these ‘central-critical’ competences.

Applying these four indicators to Belgium, the United Kingdom, the United States (a reference example of a long-established federation) and the EU can help to assess whether they are federations. This section compares them in terms of the adjudicatory power, that is, the power to declare the relative limits of central and substate powers; the international personality of central versus substate entities; the military power; and the residual governing powers.

  1. Adjudication

In the UK, Parliament is the final arbiter of the extent of regionally devolved powers, which tends to show that the UK is not a federation.[14] The American, Belgian, and European constitutional courts have jurisdiction to declare the proper division of powers between layers of government, but their remits are limited. The U.S. Supreme Court has the simplest task of the three: states own whatever powers the constitution does not assign to the federal government, and where powers conflict the federal power usually pre-empts. The Belgian Court of Arbitration faces a detailed and somewhat confusing set of rules dividing competences between the centre, the communities and the regions, with the further complication of supranational European authority over many matters. This would seem a recipe for extremely complex jurisprudence. In practice, however, “the Belgian Court of Arbitration has only played a limited role, as politicians have already removed most of the obstacles that could lead to judicial litigation.”[15] Like the Belgian court, the CJEU can issue binding decisions regarding the division of powers between EU institutions and member states, but is also constrained by member state courts, which issue final rulings pertaining to the national constitution, including the degree to which the state has yielded powers to the EU.[16]

  1. Personality

International personality is a defining feature of modern states. Multi-state associations and independent organisations have come to acquire standing before international tribunals, but only states automatically enjoy full international personality through membership in a category.

International personality is essentially centralised in the UK and the USA. American states may conclude international agreements, but only insofar as those do not usurp federal powers. As with other European regions, Scotland, Wales, and Northern Ireland deal directly with the EU in certain areas. But on all critical international matters concerning the UK or the USA, the centre speaks for the whole.

Belgian international personality also lies at the centre, but in a more nuanced form.  Because of the divisions of competences within the Belgian federation, it is possible for a minister of a region or a community to represent Belgium at a particular time in a particular configuration of the European Council.[17] In effect, that community or region has temporarily assumed Belgium’s international personality for a specific purpose.

The EU institutions have limited standing before the International Court of Justice, and the Commission speaks for the aggregate interests of all EU member states at the WTO, but except for having yielding sovereignty in a few areas such as trade negotiations, the member states remain autonomous international actors. The personality measure tends to show that the UK and the USA are states in the classic sense (whether federal or not), as Belgium mostly is, but that the EU is not.

  1. Military

The military power is a proxy for the general category of “critical” national competences such as monetary authority, taxation, and immigration rules. These represent some of the most fundamental powers of government. Centralised states rarely devolve them. Tracing the locus, or the degree of sharing, of these powers can illustrate federalism – indeed, according to Riker, the military competence is the only power held at the centre of every federation.

The British and Belgian crowns retain control over military affairs. The same is essentially true in the USA, although the constitution sanctions state militias,[18] and state governors share authority over the National Guard. The presence of a degree of military (in contrast to police) power at the state level in the US is largely a relic of its past as a confederation, and of an era when border threats seemed quite real, and the central government remote.

EU member states retain control over their military forces and most security policies, largely to the exclusion of the EU institutions. Such EU participation as there is serves mostly to facilitate the member states’ collaborating with each other, rather than exercising independent EU control. By the military metric, the EU remains confederal.

  1. The Residual Power

The locus of the residual governing power helps to distinguish a federation from a unitary state with provinces. A federation can hold the residuary at the centre; as long as at least one governing power lies with the substates, the entity fits Riker’s broadest definition of federalism. A unitary state, however, will not devolve its residual legislative and executive power to a province. In that sense, the residual power can be a proxy for those critical competences which substates of a federation cannot lightly yield to the centre.

The British residual power lies firmly at Westminster, with the exception of Scotland, where it belongs to the Edinburgh parliament. Not only may the UK parliament legislate in any area not specifically yielded to the EU or the regions, but it also can resume devolved powers.[19] At the opposite pole, the USA and EU limit the powers of the central government to those conferred by their respective constitutions, leaving the residuary with the substates.[20] Governing competences within the European Union have shifted over time. For 50 years after the first treaties were agreed in 1957, the member states ceded more and more powers to the EU. Other powers have moved to the regional level, as in Belgium and the UK. No EU member state has ceded its residual governing power to the EU. By this measure, the USA and the EU are federal entities while the UK is not.

Belgium presents a more interesting example. Article 35 of the constitution highlights Belgium’s recent transformation from a unitary state, providing that the residuary will pass to the communities and regions in the future (and thus now rests with the federal government). The federal legislature will decide the date of transition via a multiple-majority vote,[21] at a time of its choosing after “the implementation of the new article to be inserted in Title III of the Constitution, which determines the exclusive powers of the federal authority.”[22] This careful structure reflects the fact that the federal authority will find the residuary power, once yielded, difficult to recover. Should the centre fail to first assume sufficient enumerated powers to exercise the critical central competences, Belgium could inadvertently decentralise too far and exceed federation, in the extreme dissolving into a de facto confederation.

  1. The meaning of federalism

Although I am no expert, I have occasionally been invited into constitutional debates to discuss federalism and decentralisation. The topic is sensitive, at times to the point of civil war. The reason for this sensitivity is, I think, that “federalism” is sometimes taken to mean local leaders, often associated with a particular ethnic group and almost always with independent military resources, enjoying freedom from central control. This naturally makes national authorities and majority groups wary. I think I am asked to join these discussions mostly because a foreigner can speak about federalism without triggering political concerns. On such occasions, I try to ignore the politics in favour of dry definitional discussions as in this essay. I separate the concept of federalism from notions of strong or weak central control (either is possible, with or without a federation) and conclude by observing that only the citizens of a country can decide on the best way to structure their government. “Federalism”: it’s really just a word.

[1] Riker, William H., Federalism: Origin, Operation, Significance, (Boston: Little, Brown and Co., 1964), at 5. Any state with multiple layers of government, whose leadership is directly elected, is potentially federal. Mikhail Fillipov et al., Designing Federalism: A Theory of Self-Sustainable Federal Institutions 9 (Cambridge University Press, 2004).

[2] Hugues Dumont et al., Kingdom of Belgium, in Distribution of Powers and Responsibilities in Federal Countries 34, 36 (Akhtar Majeed et al., eds., 2006).

[3] Wilfried Swenden, Belgian Federalism:  Basic Institutional Features and Potential as a Model for the European Union, RIAA Conference – Governing Together in the New Europe, at 2-3 (Royal Institute of International Affairs, April 12-13 2003).

[4] Dumont et al., at 36.

[5] Id. at 34, 36.

[6] For example, the German community lacks powers over the use of language in official contexts such as education, administration, and business.  Belgian Constitution, Articles 127-130.

[7] Web site of the Belgian Senate; see also Belgian Constitution, Articles 127, 129.

[8] Belgian Constitution, Articles 4, 128.

[9] See Dumont et al. at 42-43.

[10] Id.

[11] This is more a matter of intergovernmental comity than a legal requirement.  Id.

[12] Switzerland, the United States and Germany (in the form of the Holy Roman Empire) used to be confederations.

[13] This essay discusses only the basic structures of federations. In doing so, it disregards the critical sub-field of fiscal federalism –financial arrangements between layers of government. On that topic, Rodden’s book “Hamilton’s Paradox” is an excellent resource.

[14] However, “political realism dictate[s] that disputes between the devolved administrations and Whitehall” are primarily handled by mediation in the form of Joint Ministerial Committees. Bulmer 2002 at 50.

[15] Swenden 2003 at 13.  Viewed strictly in terms of competences, the Court may rule only regarding compliance with the constitutional “principles of equality, freedom of education and ideology,” but retains the critical power to monitor compliance with the constitution’s distribution of competences across governmental bodies.  Id.

[16] The “Solange” decisions exchanged by the CJEU and the Bundesverfassungsgericht typify this delicate exercise.

[17] Swenden 2003 at 12.

[18] US Constitution, Amendment 2.

[19] In theory, of course, Parliament may also rescind the European Act of 1972, and thus resume all of the powers it has ceded to the EU.  In this regard as with the possible resumption of devolved powers, the central government would of course face considerable political resistance if it tried abruptly to reverse either the devolutions or British participation in the European project.

[20] US Constitution, Amendment 10; for the EU notion of conferral, see e.g. Walter Van Gerven, The European Union: A Polity of States and Peoples, at 268 (Bloomsbury, 2005).

[21] Supermajorities of each linguistic group in the national legislature.

[22] Belgian Constitution, Article 35.

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