Federalism

Apr

2024

The EU Budget and its Conditionalities*

Abstract

Conditional grants are also often seen as an instrument to reduce constituent units’ policy autonomy in federal systems. Conditional grant programmes also play an important role in policy-making in the EU. Cohesion Policy as an example of an EU public policy which has experienced a significant rise in conditionality instruments over recent decades. However, their use is controversial, as not all member states are affected by the set conditions in the same way which may undermining solidarity. Especially in federal and decentralised countries the autonomy of constituent units has been progressively limited. The constituent units are the main beneficiaries of EU cohesion policy, but they are not involved in decision-making on conditionalities and cannot be held accountable for compliance with all of them.

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Mar

2024

Don’t throw out the baby with the bath water: How not to misread an EU request about foreign judges at the Constitutional Court of Bosnia and Herzegovina

Abstract

The role of a Constitutional Court is central, even more so after a conflict in deeply divided societies. Foreign judges may strengthen the judicial independence, authority, and accountability of a court. However, the consideration of their role is strongly related to the context, including the role of the International Community. Experience suggests that there is positive potential for the use of foreign judges in stabilizing post-conflict situations; however, over time they may risk becoming a divisive factor themselves, as recently in the case of Bosnia and Herzegovina. This, and the preparation for EU accession, makes it necessary (or at least advisable) to adapt their guarantee function, write Jens Woelk and Harun Išerić.

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Nov

2023

Building Trust and Foundations for Fiscal Federalism in Conflict-affected Somalia

Abstract

Somalia is a federal country with established Federal Member States (FMS). In the absence of a finalized constitution, a political settlement over power and resource allocation is lacking, leading to extra-constitutional negotiations. A nascent federal system with a provisional constitution poses major constraints on the functioning of the government and citizens’ trust. This includes inter alia the inability to provide services across the jurisdictions, conflict over limited resources, constrained human resources, election disputes, limited understanding of federalism, corruption, and clashes. A political settlement would help Somalia’s stabilization and sustainable development. The current political leaders have created avenues for political negotiations that help reach consensus on contentious issues. These avenues are laying the foundation for political dialogue, leading to compromise on many unresolved issues that are proving successful and a model for post-conflict settings.

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Sep

2023

American State Constitutions as Ordinary Law

Abstract

Americans revere the United States Constitution and the Founders who created it, so they rarely amend the Constitution, and they rely on the United States Supreme Court to elaborate its meaning. But they have a very different relationship to their state constitutions. They regularly amend their state constitutions or replace them altogether, and they have no compunction about jettisoning what the constitutions’ founders created. When they disagree with how a state court interprets the state constitution, they adopt amendments to overrule the judges or even vote them out of office. This dual constitutionalism encourages a distinctive political practice. Americans treat the U.S. Constitution as a repository of political principles, but they view their state constitutions as a species of ordinary law and use them rather than revere them, including in them provisions that could as easily be put in statutes. This facilitates popular control over government. The result is a system of dual constitutionalism that combines stability at the national level with dynamism at the state level, statements of fundamental principle at the national level with the vigor of popular input at the state level.

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May

2023

Monitoring American Federalism: The Overlooked Tool of Sounding the Alarm Interposition

Abstract

One key feature of the U.S. Constitution – the concept of federalism – was unclear when it was introduced, and that lack of clarity threatened the Constitution’s ratification by those who feared the new government would undermine state sovereignty. Proponents of the new governmental framework were questioned about the underlying theory of the Constitution as well as how it would operate in practice, and their explanations produced intense and extended debate over how to monitor federalism.

In their famous defense of the Constitution in The Federalist, Alexander Hamilton and James Madison described a monitoring role for state legislatures that anticipated the practice of interposition. Although never using the term “interposition” in their essays, Hamilton and Madison responded to opponents of the Constitution by arguing that state legislatures were uniquely situated to be the voice of the people who would sound the alarm if the general government exceeded its rightful authority. What originated as a debate-like response to opponents of ratification eventually took on a life of its own, producing a settled tradition of monitoring federalism by the states that has largely been overlooked and which laid the groundwork for future conversations about constitutional meaning and federalism’s balancing of powers. I explore these themes in Monitoring American Federalism: The History of State Legislative Resistance.

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Apr

2023

Regional Identities: Promoting Dialogue and Unity in Diversity

Abstract

Different territorial identities sometimes lead to conflicts which annihilate the great wealth diverse identities have to offer. This paper classifies conflicts arising between actors sharing a country but not all identity markers and presents instruments and processes allowing to peacefully and productively deal with diverse regional identities. It offers a variety of venues allowing to improve dialogue and establishing a culture of consensus and cohesion.

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Dec

2022

Does Federalism Foster Happiness? Reviewing Political Decentralization and Citizens’ Happiness

Abstract

Federalism settles decision-making power to state levels close to its citizens. This decentralization of power should enable political output to be as responsive and corresponding as possible to the diverse demands and needs of the society – resulting in politically happy citizens. As such, federalism and decentralization may represent a polity of better governance. However, federalism can also have negative effects, such as, high costs of consent, more corruption or even less accountability since citizens do not have not enough resources to monitor all governmental levels. Both, the pro- nor the contra-argumentation in federal theory provide good reasons to be decisive. Yet, empirics show mainly a positive relationship between federalism/decentralization and happiness.

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Nov

2022

México: A Case for the Study of Federal Corporatization

Abstract

With the purpose of projecting México towards the field of international federal comparisons, this text originates from the question: Which factors of federal corporatization are found in the Mexican case? It is important to highlight that the 19^th century signified an era of “radical federalism” for México. By contrast, two later phases of federal corporatization have developed, between 1930 and 2000, and after 2018. The stage from 2000 to 2018 was described as a conjunctural federal resurgence, due to the partisan alternation, the growth of decentralized spending and the discussion of specific policies in horizontal forums. With the resurgence of Mexican corporatization, two factors, with different levels of importance, can be confirmed: 1) the hegemonical party, and 2) the constitutional coding of Intergovernmental Relations. However, the 2000-2018 period threw Urban Development to the national-subnational competition. Equally, the collective and individual initiatives of the subnational governments may be understood as federal safeguards.

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Jun

2022

Pouring Oil on Iraq’s Fragile Power Sharing Arrangement: Kurdistan’s Autonomy and the Kurdish Oil Judgment of 2022

Abstract

Iraq’s constitution of 2005 was a promising one: it had been accepted in a popular referendum and implemented a federal agenda for the central government and the Kurdistan region. However, a closer look reveals that the constitution-making process was severely flawed. Indeed, some essential features of the federal system are either missing or remain largely undefined. In this short contribution, we expound on the extent to which the constitution essentially provides for a federal structure, and whether it has been properly implemented. Further examination reveals that the absence of federal regions (besides the Kurdistan region), the unclear distribution of rules, as well as the missing bicameral parliament and the law on the Federal Supreme Court, all contribute to the lack of federal practice in Iraq – leading to important anti-federal consequences, such as the 2022 Iraqi Oil Judgment.

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May

2022

Cities in the Context of Swiss Federalism

Abstract

Communes embody the diversity of a federal state. Amongst them, cities play an important role in many regards. Various questions arise when looking into cities and city-related issues in Swiss federalism from a legal perspective. Their status is primarily determined by the cantons and thus varies from canton to canton. The Federal legislator partially deals with cities, too. Overall, this leaves us with a fragmented picture of the city as a distinct legal entity. The following article provides a brief overview of elements that position the city in the context of Swiss federalism, starting with its definition, looking at approaches taken in the cantons and at the federal level and linking cities with reform proposals.

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