Category Archives: Federalism

Learning Objectives

By the end of this section, you will be able to:

The federal design of our Constitution has had a profound effect on U.S. politics. Several positive and negative attributes of federalism have manifested themselves in the U.S. political system.

Among the merits of federalism are that it promotes policy innovation and political participation and accommodates diversity of opinion. On the subject of policy innovation, Supreme Court Justice Louis Brandeis observed in 1932 that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

What Brandeis meant was that states could harness their constitutional authority to engage in policy innovations that might eventually be diffused to other states and at the national level. For example, a number of New Deal breakthroughs, such as child labor laws, were inspired by state policies. Prior to the passage of the Nineteenth Amendment, several states had already granted women the right to vote. California has led the way in establishing standards for fuel emissions and other environmental policies (Figure). Recently, the health insurance exchanges run by Connecticut, Kentucky, Rhode Island, and Washington have served as models for other states seeking to improve the performance of their exchanges.

Figure 1. The California Air Resources Board was established in 1967, before passage of the federal Clean Air Act. The federal Environmental Protection Agency has adopted California emissions standards nationally, starting with the 2016 model year, and is working with California regulators to establish stricter national emissions standards going forward.(credit a: modification of work by Antti T. Nissinen; credit b: modification of work by Marcin Wichary)

Another advantage of federalism is that because our federal system creates two levels of government with the capacity to take action, failure to attain a desired policy goal at one level can be offset by successfully securing the support of elected representatives at another level. Thus, individuals, groups, and social movements are encouraged to actively participate and help shape public policy.

Federalism and Political Office

Thinking of running for elected office? Well, you have several options. As (Figure) shows, there are a total of 510,682 elected offices at the federal, state, and local levels. Elected representatives in municipal and township governments account for a little more than half the total number of elected officials in the United States. Political careers rarely start at the national level. In fact, a very small share of politicians at the subnational level transition to the national stage as representatives, senators, vice presidents, or presidents.

Table 1. This table lists the number of elected bodies and elected officials at the federal, state, and local levels.

If you are interested in serving the public as an elected official, there are more opportunities to do so at the local and state levels than at the national level. As an added incentive for setting your sights at the subnational stage, consider the following. Whereas only 28 percent of U.S. adults trusted Congress in 2014, about 62 percent trusted their state governments and 72 percent had confidence in their local governments.

If you ran for public office, what problems would you most want to solve? What level of government would best enable you to solve them, and why?

The system of checks and balances in our political system often prevents the federal government from imposing uniform policies across the country. As a result, states and local communities have the latitude to address policy issues based on the specific needs and interests of their citizens. The diversity of public viewpoints across states is manifested by differences in the way states handle access to abortion, distribution of alcohol, gun control, and social welfare benefits, for example.

Federalism also comes with drawbacks. Chief among them are economic disparities across states, race-to-the-bottom dynamics (i.e., states compete to attract business by lowering taxes and regulations), and the difficulty of taking action on issues of national importance.

Stark economic differences across states have a profound effect on the well-being of citizens. For example, in 2014, Maryland had the highest median household income ($73,971), while Mississippi had the lowest ($39,680).

There are also huge disparities in school funding across states. In 2013, New York spent $19,818 per student for elementary and secondary education, while Utah spent $6,555.Governing.

Furthermore, health-care access, costs, and quality vary greatly across states.

Proponents of social justice contend that federalism has tended to obstruct national efforts to effectively even out these disparities.

The economic strategy of using race-to-the-bottom tactics in order to compete with other states in attracting new business growth also carries a social cost. For example, workers safety and pay can suffer as workplace regulations are lifted, and the reduction in payroll taxes for employers has led a number of states to end up with underfunded unemployment insurance programs. (cf.Alexander Hertel-Fernandez. 2012. Why U.S. Unemployment Insurance is in Financial Trouble, February. http://www.scholarsstrategynetwork.org/sites/default/files/ssn_basic_facts_hertel-fernandez_on_unemployment_insurance_financing.pdf)

Nineteen states have also opted not to cover more of their residents under Medicaid, as encouraged by the Patient Protection and Affordable Care Act in 2010, for fear it will raise state public spending and increase employers cost of employee benefits, despite provisions that the federal government will pick up nearly all cost of the expansion.

More than half of these states are in the South.

The federal design of our Constitution and the system of checks and balances has jeopardized or outright blocked federal responses to important national issues. President Roosevelts efforts to combat the scourge of the Great Depression were initially struck down by the Supreme Court. More recently, President Obamas effort to make health insurance accessible to more Americans under the Affordable Care Act immediately ran into legal challengesfrom some states, but it has been supported by the Supreme Court so far. However, the federal governments ability to defend the voting rights of citizens suffered a major setback when the Supreme Court in 2013 struck down a key provision of the Voting Rights Act of 1965.

No longer are the nine states with histories of racial discrimination in their voting processes required to submit plans for changes to the federal government for approval.

The benefits of federalism are that it can encourage political participation, give states an incentive to engage in policy innovation, and accommodate diverse viewpoints across the country. The disadvantages are that it can set off a race to the bottom among states, cause cross-state economic and social disparities, and obstruct federal efforts to address national problems.

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Advantages and Disadvantages of Federalism American Government

fiscal federalism, financial relations between units of governments in a federal government system. Fiscal federalism is part of broader public finance discipline. The term was introduced by the German-born American economist Richard Musgrave in 1959. Fiscal federalism deals with the division of governmental functions and financial relations among levels of government.

The theory of fiscal federalism assumes that a federal system of government can be efficient and effective at solving problems governments face today, such as just distribution of income, efficient and effective allocation of resources, and economic stability. Economic stability and just distribution of income can be done by federal government because of its flexibility in dealing with these problems. Because states and localities are not equal in their income, federal government intervention is needed. Allocation of resources can be done effectively by states and local governments. Musgrave argued that the federal or central government should be responsible for the economic stabilization and income redistribution but the allocation of resources should be the responsibility of state and local governments.

The following are benefits of fiscal decentralization: regional and local differences can be taken into account; lower planning and administrative costs; competition among local governments favours organizational and political innovations; and more efficient politics as citizens have more influence. There are several disadvantages of fiscal federalism as well: the lack of accountability of state and local governments to constituents; the lack of availability of qualified staff; the possibility for people to choose where to reside; a certain degree of independence of the local governments from the national government; and unavailability of infrastructure of public expenditure at the local level.

Fiscal federalism is affected by the relationship between levels of government and thus by the historical events that shape this relationship. For instance, in the early years of American federalism, geographic separation, slow communication, and clear division of labour made it possible for each level of government to function without significant interactions with other levels. Several developments resulted in more interactions and central planning among the levels of government: improvement in transportation and communication technologies; the New Deal of the 1930s; the World Wars and the Cold War; and the war against poverty from the 1960s. These developments increased the interactions among levels of government and helped the development of national policy making and state and local policy implementation. It also changed traditional intergovernmental relations. National fiscal policies and financial decisions have been the predominant vehicle forming intergovernmental relations. Fiscal federalism operates through the various federal taxes, grants, and transfers that occur in addition to states and localities. The federal government regulates, subsidizes, taxes, provides goods and services, and redistributes income. In federal systems like that of the United States, fiscal policies have also sought to empower the states through deregulation.

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fiscal federalism | public finance | Britannica

The American Legislative Exchange Council is Americas largest nonpartisan, voluntary membership organization of state legislators dedicated to the principles of limited government, free markets and federalism. Comprised of nearly one-quarter of the countrys state legislators and stakeholders from across the policy spectrum, ALEC members represent more than 60 million Americans and provide jobs to more than 30 million people in the United States.

All Americans deserve an efficient, effective and accountable government that puts the people in control. ALEC provides a forum for experts to discuss business and economic issues facing the states. The ALEC model policy library is home to dynamic and innovative ideas that reduce the cost of everyday life and ensure economic freedom. ALEC ideas and publications are the product of countless hours of research, debate and discussion and serve as a toolkit for anyone who wants to increase the effectiveness and reduce the size, reach and cost of government. ALEC is proud to offer real solutions to the top issues facing the states, and the strength of the ALEC family is proof that good ideas are better when shared.

ALEC is a forum for stakeholders to exchange ideas and develop real, state-based solutions to encourage growth, preserve economic security and protect hardworking taxpayers. ALEC members understand the importance of hearing from all sides of an issue and value public-private partnership in policy discussions. Job creators and state legislators alike come to ALEC to offer important policy perspectives to ensure economic security and opportunity in their communities.

By joining ALEC, state legislators gain the competitive advantage of shared knowledge and experience, as they are able to learn from one another about what policies have succeeded or failed in the states. Similarly, business leaders and policy experts are able to discuss the real-world implications of potential policies with state legislators who best know their communities and economic landscapes.

At ALEC, ideas drive the discussion. Innovation and technology are at the forefront of members conversations, and ALEC is home to experts who stay ahead of the issues and who provide continuing education to members about the effect changing issues will have on the Americans.

In2015, ALEC leaders engaged ina strategic planning process to guide the ongoingsuccessandexpansion of the organization through its 45th anniversary and beyond. These new developments will ensure ALEC grows evenstronger and more effective in engaging its membership toleadnational conversationsonfree market thought. Readthe strategic plan to learn more about our future.

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Federal systems of Canada

Canadian federalism (French: fdralisme canadien) involves the current nature and historical development of the federal system in Canada.

Canada is a federation with eleven components: the national Government of Canada and ten provincial governments. All eleven governments derive their authority from the Constitution of Canada. There are also three territorial governments in the far north, which exercise powers delegated by the federal parliament, and municipal governments which exercise powers delegated by the province or territory. Each jurisdiction is generally independent from the others in its realm of legislative authority.[1] The division of powers between the federal government and the provincial governments is based on the principle of exhaustive distribution: all legal issues are assigned to either the federal Parliament or the provincial Legislatures.

The division of powers is set out in the Constitution Act, 1867 (originally called the British North America Act, 1867), a key document in the Constitution of Canada. Some amendments to the division of powers have been made in the past century and a half, but the 1867 Act still sets out the basic framework of the federal and provincial legislative jurisdictions.

The federal nature of the Canadian constitution was a response to the colonial-era diversity of the Maritimes and the Province of Canada, particularly the sharp distinction between the French-speaking inhabitants of Lower Canada and the English-speaking inhabitants of Upper Canada and the Maritimes. John A. Macdonald,[2] Canada's first prime minister, originally favoured a unitary system; later, after witnessing the carnage of the American Civil War, he supported a federal system to avoid similar violent conflicts.[3]

The foundations of Canadian federalism were laid at the Quebec Conference of 1864. The Quebec Resolutions were a compromise between those who wanted sovereignty vested in the federal government and those who wanted it vested in the provinces. The compromise based the federation on the constitution of the British Empire, under which the legal sovereignty of imperial power was modified by the conventions of colonial responsible government, making colonies of settlement (such as those of British North America) self-governing in domestic affairs. A lengthy political process ensued before the Quebec Resolutions became the British North America Act of 1867. This process was dominated by John A. Macdonald, who joined British officials in attempting to make the federation more centralized than that envisaged by the Resolutions.

The resulting constitution was couched in more centralist terms than intended. As prime minister, Macdonald tried to exploit this discrepancy to impose his centralist ideal against chief opponent Oliver Mowat. In a series of political battles and court cases from 1872 to 1896,[a] Mowat reversed Macdonald's early victories and entrenched the co-ordinated sovereignty which he saw in the Quebec Resolutions.[6] In 1888, Edward Blake summarized that view: "[It is] a federal as distinguished from a legislative union, but a union composed of several existing and continuing entities ... [The provinces are] not fractions of a unit but units of a multiple. The Dominion is the multiple and each province is a unit of that multiple ..."[7] The accession of Wilfrid Laurier as prime minister inaugurated a new phase of constitutional consensus, marked by a more-egalitarian relationship between the jurisdictions. The federal government's quasi-imperial powers of disallowance and reservation, which Macdonald abused in his efforts to impose a centralised government, fell into disuse.

During World War I the federal Crown's power was extended with the introduction of income taxes and passage of the War Measures Act, the scope of which was determined by several court cases.[b] The constitution's restrictions of parliamentary power were affirmed in 1919 when, in the Initiatives and Referendums Reference, a Manitoba act providing for direct legislation by way of initiatives and referendums was ruled unconstitutional by the Privy Council on the grounds that a provincial viceroy (even one advised by responsible ministers) could not permit "the abrogation of any power which the Crown possesses through a person directly representing it".[nb 11] Social and technological changes also worked their way into constitutional authority; the Radio Reference found that federal jurisdiction extended to broadcasting,[nb 12] and the Aeronautics Reference found the same for aeronautics.[nb 13]

In 1926, the KingByng Affair resulted in a constitutional crisis which was the impetus for changes in the relationship between the governor general and the prime minister. Although its key aspects were political in nature, its constitutional aspects continue to be debated.[8] One result was the Balfour Declaration issued later that year, whose principles were eventually codified in the Statute of Westminster 1931. It, and the repeal of the Colonial Laws Validity Act 1865, gave the federal parliament the ability to make extraterritorial laws and abolish appeals to the Judicial Committee of the Privy Council. Criminal appeals were abolished in 1933,[na 1] but civil appeals continued until 1949.[na 2] The last Privy Council ruling of constitutional significance occurred in 1954, in Winner v. S.M.T. (Eastern) Limited.[nb 14] After that, the Supreme Court of Canada became the final court of appeal.

In 1937, Lieutenant Governor of Alberta John C. Bowen refused to give Royal Assent to three Legislative Assembly of Alberta bills. Two would have put the province's banks under the control of the provincial government; the third, the Accurate News and Information Act, would have forced newspapers to print government rebuttals to stories the provincial cabinet considered "inaccurate". All three bills were later declared unconstitutional by the Supreme Court of Canada in Reference re Alberta Statutes, which was upheld by the Judicial Committee of the Privy Council.[nb 15]

World War II's broader scope required passage of the National Resources Mobilization Act to supplement the powers in the War Measures Act to pursue the national war effort. The extent to which wartime federal power could expand was further clarified in the Chemicals Reference (which held that Orders in Council under the War Measures Act were equivalent to acts of parliament)[nb 16] and the Wartime Leasehold Regulations Reference, which held that wartime regulations could displace provincial jurisdiction for the duration of an emergency.[nb 17] Additional measures were required in order to secure control of the economy during that time. Jurisdiction over unemployment insurance was transferred permanently to the federal sphere;[na 3] the provinces surrendered their power to levy succession duties and personal and corporate income taxes for the duration of the war (and for one year afterwards) under the Wartime Tax Rental Agreement;[9] and labour relations were centralized under federal control with the Wartime Labour Relations Regulations (lasting until 1948), in which the provinces ceded their jurisdiction over all labour issues.[10]

Canada emerged from the war with better cooperation between the federal and provincial governments. This led to a welfare state, a government-funded health care system and the adoption of Keynesian economics. In 1951 section 94A was added to the British North America Act, 1867 to allow the Canadian parliament to provide for pensions.[na 4] This was extended in 1964 to allow supplementary benefits, including disability and survivors' benefits.[na 5] The era saw an increase in First Ministers' Conferences to resolve federal-provincial issues. The Supreme Court of Canada became the court of final appeal after the 1949 abolition of appeals to the Judicial Committee of the Privy Council and parliament received the power to amend the constitution, limited to non-provincial matters and subject to other constraints.[na 6]

1961 saw the last instance of a lieutenant governor reserving a bill passed by a provincial legislature. Frank Lindsay Bastedo, Lieutenant Governor of Saskatchewan, withheld Royal Assent and reserved Bill 5, An Act to Provide for the Alteration of Certain Mineral Contracts, to the Governor-in-Council for review. According to Bastedo, "[T]his is a very important bill affecting hundreds of mineral contracts. It raises implications which throw grave doubts of the legislation being in the public interest. There is grave doubt as to its validity". The act was upheld in an Order in Council by the federal government.[11][na 7]

Parliament passed the Canadian Bill of Rights, the first codification of rights by the federal government. Prime Minister Lester Pearson obtained passage of major social programs, including universal health care (a federal-provincial cost-sharing program), the Canada Pension Plan and Canada Student Loans. Quebec's Quiet Revolution encouraged increased administrative decentralization in Canada, with Quebec often opting out of federal initiatives and instituting its own (such as the Quebec Pension Plan). The Quebec sovereignty movement led to the victory of the Parti Qubcois in the 1976 Quebec election, prompting consideration of further loosening ties with the rest of Canada; this was rejected in a 1980 referendum.

During the premiership of Pierre Trudeau, the federal government became more centralist. Canada experienced "conflictual federalism" from 1970 to 1984, generating tensions with Quebec and other provinces. The National Energy Program and other petroleum disputes sparked bitterness in Alberta, Saskatchewan and Newfoundland toward the federal government.[12]

Although Canada achieved full status as a sovereign nation in the Statute of Westminster 1931, there was no consensus about how to amend the constitution; attempts such as the 1965 FultonFavreau formula and the 1971 Victoria Charter failed to receive unanimous approval from both levels of government. When negotiations with the provinces again stalled in 1980, Trudeau threatened to take the case for patriation to the British parliament "[without] bothering to ask one premier". According to the federal cabinet and Crown counsel, if the British Crown (in council, in parliament, and on the bench) exercised sovereignty over Canada, it would do so only at the request of the federal ministers.[13]

Manitoba, Newfoundland and Quebec posed reference questions to their respective courts of appeal, in which five other provinces intervened in support. In his ruling, Justice Joseph O'Sullivan of the Manitoba Court of Appeal held that the federal government's position was incorrect; the constitutionally-entrenched principle of responsible government meant that "Canada had not one responsible government but eleven."[13] Officials in the United Kingdom indicated that the British parliament was under no obligation to fulfill a request for legal changes desired by Trudeau, particularly if Canadian convention was not followed.[14] All rulings were appealed to the Supreme Court of Canada. In a decision later known as the Patriation Reference, the court ruled that such a convention existed but did not prevent the federal parliament from attempting to amend the constitution without provincial consent and it was not the role of the courts to enforce constitutional conventions.

The Canadian parliament asked the British parliament to approve the Constitution Act, 1982, which it did in passage of the Canada Act 1982. This resulted in the introduction of the Canadian Charter of Rights and Freedoms, the transfer of constitutional amendment to a Canadian framework and the addition of section 92A to the Constitution Act, 1867, giving the provinces more jurisdiction over their natural resources.

The Progressive Conservative Party under Joe Clark and Brian Mulroney favoured the devolution of power to the provinces, culminating in the failed Meech Lake and Charlottetown accords. After merging in 2003 with the heavily devolutionist Canadian Alliance, the Conservative Party under Stephen Harper has maintained the same stance. When Harper was appointed prime minister in 2006, the frequency of First Ministers' conferences declined significantly; inter-provincial cooperation increased with meetings of the Council of the Federation, established by the provincial premiers, in 2003.

After the 1995 Quebec referendum on sovereignty, Prime Minister Jean Chrtien limited the ability of the federal government to spend money in areas under provincial jurisdiction. In 1999 the federal government and all provincial governments except Quebec's agreed to the Social Union Framework Agreement, which promoted common standards for social programmes across Canada.[15] Former Prime Minister Paul Martin used the phrase "asymmetrical federalism" to describe this arrangement.[16][17] The Supreme Court upholds the concepts of flexible federalism (where jurisdictions overlap) and cooperative federalism (where they can favourably interact),[18] as noted in Reference re Securities Act.

As a federal monarchy, the Canadian Crown is present in all jurisdictions in the country,[nb 18] with the headship of state a part of all equally.[19] Sovereignty is conveyed not by the governor general or federal parliament, but through the Crown itself as a part of the executive, legislative and judicial branches of Canada's 11 (one federal and 10 provincial) legal jurisdictions; linking the governments into a federal state,[20] the Crown is "divided" into 11 "crowns".[21] The fathers of the Canadian Confederation viewed the constitutional monarchy as a bulwark against potential fracturing of the Canadian federation,[22] and the Crown remains central to Canadian federalism.[23]

The federal-provincial distribution of legislative powers (also known as the division of powers) defines the scope of the federal and provincial legislatures. These have been identified as exclusive to the federal or provincial jurisdictions or shared by all. Section 91 of the Constitution Act, 1867, lists the major federal parliament powers, based on the concepts of peace, order, and good government; while Section 92 of the Constitution Act, 1867 enumerates those of the provincial governments.

The act puts remedial legislation on education rights, uniform laws relating to property and civil rights (in all provinces other than Quebec), creation of a general court of appeal and other courts "for the better Administration of the Laws of Canada," and implementing obligations arising from foreign treaties, all under the purview of the federal legislature in Section 91. Some aspects of the Supreme Court of Canada were elevated to constitutional status in 1982.[nb 19]

The act lists the powers of the provincial parliaments (subject to the federal parliament's authority to regulate inter-provincial movement) in Section 92. These powers include the exploration, development and export to other provinces of non-renewable natural resources, forestry resources and electrical energy. Education is under provincial jurisdiction, subject to the rights of separate schools.

Old-age pensions, agriculture and immigration are shared within federal and provincial jurisdictions. One prevails over the other, however: for pensions, federal legislation will not displace provincial laws, and for agriculture and immigration it is the reverse.[why?]

The Constitution Act, 1871 allowed parliament to govern any territories not forming part of any province, and the Statute of Westminster 1931, gave parliament the ability to pass extraterritorial laws.

To rationalize how each jurisdiction may use its authority, certain doctrines have been devised by the courts: pith and substance[definition needed], including the nature of any ancillary powers and the colourability of legislation[clarification needed]; double aspect; paramountcy; inter-jurisdictional immunity; the living tree; the purposive approach, and charter compliance[definition needed] (most notably through the Oakes test). Additionally, there is the implied Bill of Rights.

Jurisdiction over Crown property is divided between the provincial legislatures and the federal parliament, with the key provisions Sections 108, 109, and 117 of the Constitution Act, 1867. Public works are the property of the federal Crown, and natural resources are within the purview of the provinces.[nb 20] Title to such property is not vested in one jurisdiction or another, however, since the Canadian Crown is indivisible.[25] Section 109 has been given a particularly-broad meaning;[26] provincial legislation regulating labour used to harvest and the disposal of natural resources does not interfere with federal trade and commerce power,[nb 21][nb 22] and royalties have been held to cover the law relating to escheats.[nb 23] Canada cannot unilaterally create Indian reserves, since the transfer of such lands requires federal and provincial approval by Order in Council (although discussion exists about whether this is sound jurisprudence).[26][nb 24]

The provincial power to manage Crown land did not initially extend to Manitoba, Alberta and Saskatchewan when they were created from part of the Northwest Territories, since the land was vested in the federal Crown. It was vacated on some land (the Railway Belt and the Peace River Block) by British Columbia when it entered the confederation. Title to this land was not vested in those provinces until the passage of the Natural Resources Acts in 1930. The power is not absolute, however; provincial Crown land may be regulated or expropriated for federal purposes.[nb 25][nb 26] The administration of crown land is also subject to the rights of First Nations[nb 27] (since they are a relevant interest),[nb 28] and provincial power "is burdened by the Crown obligations toward the Aboriginal people in question".[nb 29] Debate exists about whether such burdens apply in the same manner in the Western provinces under the Natural Resources Acts.[28]

Management of offshore resources is complex; although management of the beds of internal waters is vested in the provincial Crowns, management of beds of territorial seas is vested in the federal Crown (with management of the continental shelf and the exclusive economic zone).[nb 30][nb 31][29] The beds and islands of the waters between Vancouver Island and mainland British Columbia have been declared the property of the Crown in right of British Columbia.[nb 32] Federal-provincial management agreements have been implemented concerning offshore petroleum resources in the areas around Newfoundland and Labrador and Nova Scotia.[na 8][na 9]

Taxation is a power of the federal and provincial legislatures; provincial taxation is more restricted, in accordance with sections 92(2) and 92(9) of the Constitution Act, 1867. In Allard Contractors Ltd. v. Coquitlam (District), provincial legislatures may levy an indirect fee as part of a valid regulatory scheme.[nb 33] Grard La Forest observed obiter dicta that section 92(9) (with provincial powers over property and civil rights and matters of a local or private nature) allows for the levying of license fees even if they constitute indirect taxation.[30]

Parliament has the power to spend money on public debt and property. Although the Supreme Court of Canada has not ruled directly about constitutional limits on federal spending power,[nb 34][31] parliament can transfer payments to the provinces.[c] This arises from the 1937 decision of the Judicial Committee of the Privy Council on the Unemployment Insurance Reference, where Lord Atkin observed: "Assuming the Dominion has collected by means of taxation a fund, it by no means follows that any legislation which disposes of it is necessarily within Dominion competence ... If on the true view of the legislation it is found that in reality in pith and substance the legislation invades civil rights within the Province, or in respect of other classes of subjects otherwise encroaches upon the provincial field, the legislation will be invalid".[nb 36] In Re Canada Assistance Plan, Justice Sopinka held that the withholding of federal money previously granted to fund a matter within provincial jurisdiction does not amount to the regulation of that matter.[nb 37]

Much distribution of power has been ambiguous, leading to disputes which have been decided by the Judicial Committee of the Privy Council and (after 1949) the Supreme Court of Canada. The nature of the Canadian constitution was described by the Privy Council in 1913 as not truly federal (unlike the United States and Australia); although the British North America Act, 1867, states in its preamble that the colonies had expressed "their desire to be federally united into one Dominion", "the natural and literal interpretation of the word [federal] confines its application to cases in which these States, while agreeing on a measure of delegation, yet in the main continue to preserve their original Constitutions". The Privy Council determined that the Fathers of Confederation desired a "general Government charged with matters of common interest, and new and merely local Governments for the Provinces". Matters other than those listed in the British North America Act, 1867, as the responsibility of the federal or provincial parliaments fell to the federal legislature (the reverse of the arrangement between the federal and state congresses in the United States).[nb 38]

The preamble of Section 91 of the Constitution Act, 1867 states: "It shall be lawful for the Queen ... to make laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces". In addition to assigning powers not stated elsewhere (which has been narrowly interpreted), this has led to the creation of the national-emergency and national-concern doctrines.

The national-emergency doctrine was described by Mr Justice Beetz in Reference re Anti-Inflation Act.[nb 39][d][e] The national-concern doctrine is governed by the principles stated by Mr Justice Le Dain in R. v. Crown Zellerbach Canada Ltd..[nb 41][f]

The federal government is partially limited by powers assigned to the provincial legislatures; for example, the Canadian constitution created broad provincial jurisdiction over direct taxation and property and civil rights. Many disputes between the two levels of government revolve around conflicting interpretations of the meaning of these powers.

By 1896, the Judicial Committee of the Privy Council arrived at a method of interpretation, known as the "four-departments doctrine", in which jurisdiction over a matter is determined in the following order:

By the 1930s, as noted in the Fish Canneries Reference and Aeronautics Reference, the division of responsibilities between federal and provincial jurisdictions was summarized by Lord Sankey.[g]

Although the Statute of Westminster 1931 declared that the Parliament of Canada had extraterritorial jurisdiction, the provincial legislatures did not achieve similar status. According to s. 92, "In each Province the Legislature may exclusively make Laws ...".

If a provincial law affects the rights of individuals outside the province:

In The Queen (Man.) v. Air Canada, it was held that the s. 92(2) power providing for "direct taxation within the province" does not extend to taxing sales on flights passing over (or through) a province, but the question of how far provincial jurisdiction can extend into a province's airspace was left undecided.[nb 44] However, the property and civil rights power does allow for determining rules with respect to conflict of laws in civil matters.[na 10]

Federal jurisdiction arises in several circumstances:

The gap approach, employed sparingly, identifies areas of jurisdiction arising from oversights by the drafters of the constitution; for example, federal jurisdiction to incorporate companies is inferred from the power provinces have under Section 92 for "The Incorporation of Companies with Provincial Objects".

Section 129 of the Constitution Act, 1867 provided for laws in effect at the time of Confederation to continue until repealed or altered by the appropriate legislative authority. Similar provisions were included in the terms of union of other territories that were subsequently incorporated into Canada.

The uniformity of laws in some areas of federal jurisdiction was significantly delayed. Offences under the Criminal Code were not made uniform until 1892, when common-law criminal offences were abolished.[33] Divorce law was not made uniform until 1968, Canadian maritime law not until 1971 and marriage law not until 2005. Provisions of the Civil Code of Lower Canada, adopted in 1865 by the former Province of Canada, affecting federal jurisdiction continued to be in force in Quebec (if they had not been displaced by other federal Acts) until their repeal on 15 December 2004.[na 11][34]

According to the Supreme Court of Canada, "our Constitution is based on an allocation of exclusive powers to both levels of government, not concurrent powers, although these powers are bound to interact in the realities of the life of our Constitution."[nb 45] Chief Justice Dickson observed the complexity of that interaction:

The history of Canadian constitutional law has been to allow for a fair amount of interplay and indeed overlap between federal and provincial powers. It is true that doctrines like interjurisdictional and Crown immunity and concepts like "watertight compartments" qualify the extent of that interplay. But it must be recognized that these doctrines and concepts have not been the dominant tide of constitutional doctrines; rather they have been an undertow against the strong pull of pith and substance, the aspect doctrine and, in recent years, a very restrained approach to concurrency and paramountcy issues.[nb 46]

Notable examples include:

In 1899, Lord Watson asserted during the argument in CPR v Bonsecours[nb 54] that neither the federal parliament nor the provincial legislatures could give legislative authority to the other level. Subsequent attempts to dovetail federal and provincial legislation to achieve certain ends met with difficulty, such as an attempt by Saskatchewan to ensure enforcement of a federal statute[na 15] by enacting a complementary Act[na 16] declaring that the federal Act would continue in force under provincial authority if it was ruled ultra vires. The Saskatchewan Court of Appeal ruled a federal and provincial Act ultra vires, voiding both as an attempt by the province to vest powers in parliament unauthorized by the BNA Act.[nb 55]

The matter was addressed in 1950 by the Supreme Court, which held ultra vires a proposed Nova Scotia Act which would have authorized the inter-delegation of legislative and taxation authority between Parliament and the Nova Scotia legislature.[nb 56] In that decision, Justice Rand explained the distinction between delegation to a subordinate body and that to a legislative body.[h]

Later attempts to achieve federal-provincial coordination have succeeded with other types of legislative schemes involving:

To understand how treaties can enter Canadian law, three significant cases must be considered:the Aeronautics Reference, the Radio Reference and the Labour Conventions Reference.[nb 58]Although the reasoning behind the judgments is complex,[44] it is considered to break down as follows:

Although the Statute of Westminster 1931 had made Canada fully independent in governing its foreign affairs, the Judicial Committee of the Privy Council held that s. 132 did not evolve to take that into account. As noted by Lord Atkin at the end of the judgment,

It must not be thought that the result of this decision is that Canada is incompetent to legislate in performance of treaty obligations. In totality of legislative powers, Dominion and Provincial together, she is fully equipped. But the legislative powers remain distributed and if in the exercise of her new functions derived from her new international status she incurs obligations they must, so far as legislation be concerned when they deal with provincial classes of subjects, be dealt with by the totality of powers, in other words by co-operation between the Dominion and the Provinces. While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure.

This case left undecided the extent of federal power to negotiate, sign and ratify treaties dealing with areas under provincial jurisdiction, and has generated extensive debate about complications introduced in implementing Canada's subsequent international obligations;[45][46] the Supreme Court of Canada has indicated in several dicta that it might revisit the issue in an appropriate case.[47]

Outside the questions of ultra vires and compliance with the Canadian Charter of Rights and Freedoms, there are absolute limits on what the Parliament of Canada and the provincial legislatures can legislate. According to the Constitution Act, 1867:

While the Parliament of Canada has the ability to bind the Crown in right of Canada or of any province, the converse is not true for the provincial legislatures, as "[p]rovincial legislation cannot proprio vigore [ie, of its own force] take away or abridge any privilege of the Crown in right of the Dominion."[nb 62]

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Canadian federalism - Wikipedia

October 20, 2022 08:43 pm | Updated October 21, 2022 12:37 am IST - New Delhi/Rajkot

Hardeep Singh Puris comments came on the sidelines of the PMAY-U Awards 2021.| Photo Credit: Reuters

Over half the homes sanctioned under the BJP-led Centres flagship Pradhan Mantri Awas Yojana - Urban (PMAY-U) housing scheme have been delivered and the rest are under various stages of completion, Union Minister of Housing & Urban Affairs Hardeep Singh Puri said on Wednesday.

Mr. Puris comments came on the sidelines of the PMAY-U Awards 2021 scheduled annually to recognise the contribution of States, Union Territories and urban local bodies with regard to the implementation of the scheme in Rajkot.

In the awards, Uttar Pradesh bagged the first position followed by Madhya Pradesh and Tamil Nadu at second and third place, respectively.

Poll-bound Gujarat saw five special category awards for performance related to Affordable Rental Housing Complexes and Convergence with other Missions coming its way.

Madhya Pradesh got three special category awards followed by Jammu and Kashmir, which was adjudged the Best Performing UT alongside Dadra and Nagar Haveli and Daman & Diu.

PMAY-U scheme is aimed at confronting and tiding over the shortage of housing facilities in urban India for beneficiaries under the Economically Weaker Section (EWS), Low-Income Groups (LIGs) and Middle Income Groups (MIGs) categories.

According to Mr. Puri, 1.23 crore houses were sanctioned under the scheme of which 64 lakh over 52% have already been completed and delivered while the rest were at various stages of completion.

PMAY-U, he added, had emerged as the largest housing scheme in the world since its launch seven years ago in June, 2015 with the number of houses sanctioned under it so far 1.23 crore 9 times the number that was achieved in the 10 years of the previous regime between 2004 and 2014.

PMAY-U, Mr. Puri said, was a perfect example of the spirit of co-operative and competitive federalism with all States across the country participating in it enthusiastically.

Besides having the power to appraise and approve housing projects, all the States also had healthy competition with each other to ensure that their State came on top. The ultimate winner, he added, had been the people, and especially those who belonged to the vulnerable EWS and LIG sections of society.

Prior to the award ceremony on Wednesday evening, Prime Minister Narendra Modi said that more than 3 crore pucca houses had been given to the poor in villages and cities across the country in the last 8 years.

As many as 10 lakh among these had been approved for the poor in the cities of Gujarat, of which 7 lakh has already been completed.

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U.P. bags top honours at PMAY-U Awards 2021 - The Hindu

Political Line sc views on conversions rajiv convicts and federalism and more  The Hindu

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Political Line sc views on conversions rajiv convicts and federalism and more - The Hindu

Byron WilliamsWinston-Salem Journal

Prior to becoming president, Gerald Ford defined the impeachment criteria of high crimes and misdemeanors as whatever a majority of the House of Representatives considers them to be at a moment in history. One might offer a similar critique of the independent state legislature theory (ISL).

In the upcoming Supreme Court case of Moore v. Harper, the court will decide whether ISL is merely a fringe theory or a doctrine of constitutional law. ISL offers that a state legislatures plans for new congressional districts cannot be overridden by a state supreme courts interpretations of its states own constitution, including any provisions limiting partisan gerrymandering.

The U.S. Constitution in Articles I and II refers to state legislatures as having a role in federal elections. The Republican-led state legislature in North Carolina, based on being the party in the majority at the time of the census, drew congressional lines that favored the Republican Party a long-held shared practice by the party in the majority at the time of the census.

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The N.C. Supreme Court invalidated those districts, saying excessive partisan gerrymandering was in tension with the state constitution.

The court opined: In every single one of the 52 elections decided within a 6-point margin, the Enacted Plans give Republicans an outright majority in the states congressional delegation, state houses, and the state senate. This is true when Democrats win statewide by clear margins.

The N.C. legislature is bringing the case before the Supreme Court. Invoking ISL, it argues that the state legislature, and only the state legislature, when regulating federal elections, including the presidency, is free from complying with the state constitution, state courts, a governors veto or the people who elected them. It is a peculiar interpretation of the U.S. Constitution that grants legislative fiat when deciding the rules for federal elections.

ISL contends that when the U.S. Constitution refers to the legislatures of the states, that means the elected legislature in isolation possess plenary authority to act. This is a far-fetched theory that belies the fundamental understanding of checks and balances and separation of powers.

Article 1, Section 1 of the U.S. Constitution reads:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Does anyone possessing elementary civic knowledge believe the aforementioned power granted to the legislative branch does not require a signature from the executive branch to become law or judicial review? ISL would be a broad and disruptive insertion into the nations constitutional inheritance that forgoes intellectual heft in lieu of brazen political gain.

The Supreme Court has rejected this argument in four prior cases, but what will it decide in the post-Roberts court? Normally the court is named after the chief justice, i.e., the Burger court, the Rehnquist court, etc. But in the aftermath of overturning Roe v. Wade, Chief Justice John Roberts appears to have lost the court to five uber-conservative justices who are less concerned with the institution than with enacting a judicial philosophy that appears uncomfortably close to the political agenda of the Republican Party.

In the 2019 case Rucho v. Common Cause, the Supreme Court decided in a 5-4 decision that partisan gerrymandering claims cannot be decided in federal court; they are a matter for the states. The N.C. Supreme Court has decided and now the Supreme Court will take up the matter to rule on the legitimacy of ISL.

One never knows how the court will rule, but Moore v. Harper possesses the heavy after-taste of Bush v. Gore, the 2000 Supreme Court ruling that in effect decided a presidency. The questions to be brought before the court: Who runs U.S. elections and who sets U.S. election law, and does the Constitution allow state legislatures to act alone?

If the court holds for the N.C. legislature, it would create a plethora of unintended consequences around the nature of federalism and the adoption of new methods such as rank choice voting while granting state legislatures more leeway to preemptively choose electors for the Electoral College that could conceivably ignore the will of the voters.

Will the post-Roberts court add ISL to the canon of constitutional law? If so, it could conceivably open a new chapter in American democracy thats not pursuant to a more perfect union.

The Rev. Byron Williams (byron@publicmorality.org), a writer and the host of The Public Morality on WSNC 90.5, lives in Winston-Salem.

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Byron Williams: The court is poised to rewrite federalism - Winston-Salem Journal

The Official Language Committees report on the use of Hindi in the country, and the response it has evoked, shows that there are further tensions at play in the follow-up to the 2024 general elections, with the pressing issue of representation coming to the forefront.

The latest report of the Committee of Parliament on Official Language has recommended that use of Hindibe further adopted across the country, it must be the primary method of communication in government offices, the UN, and all central institutes of higher education, among others. Although this report is meant to be submitted once every five years, the committee has submitted two reports in the lastthree years, revealing the governments priorities.

Also Read:Foolish pursuit of Hindi dominance

Leaders from non-Hindi-speaking states were critical of the report, and questioned its motives. Critics allege that the 100+ recommendations in the report undermine Indias federal structure and linguistic diversity by forcibly imposing Hindi onto a country where the majority of people do not speak Hindi.

This is not a new debate. Right from independence, tussles over the use of Hindi or English as Indias official language have manifested in Parliament, and played out on the streets.

In 1965, violent anti-Hindi protests broke out in Tamil Nadu, after which the Union agreed to use both Hindi and English for official use indefinitely. The importance of English in bridging the gap between North and South India has been debated extensively and will continue in subsequent years. Leaving the merits and demerits of this proposal aside, the response from political parties reflects another issue that will be at the forefront of Indian politics in the 2024 general elections, all the way till 2031: the delimitation of new parliamentary constituencies.

The electoral system mandates that seats are allocated to states based on the principle ofproportionality, with constituencies of similar populations across the country. In turn, stateswith higher populations will have more constituencies than those with lower ones. Currently,Uttar Pradesh, the most populous state, has 80 seats in the Lok Sabha, while Tamil Nadu has39. However, these figures have been allocated based on the 1971 census.

A report by Milan Vaishnav shows, four north Indian states (Bihar, Madhya Pradesh, Rajasthan, and Uttar Pradesh) would collectively gain 22 seats, while four southern states (Andhra Pradesh, Kerala, Telangana, and Tamil Nadu) would lose 17 seats, assuming that the number of seats in Parliament remains at 545. Proposals for what the future of the Indian Parliament would look like are unclear, for now. Nonetheless, tensions between the North and South will come to a head in 2024, 2026, and finally in 2031.

Also Read:Stop poking at us with Hindi rod

The Souths importance in shaping the countrys economy is evident. It is more developed than the North but receives less funding from the Union. Once delimitation occurs, its share of funding from the Finance Commission will shrink even further, given population changes, straining relations between the North and South. Southern states have already alleged that the Union does not providethem with adequate funding, GST revenues, and more.

The 15th Finance Commission, which was constituted in 2018, used the 2011 census to allocate funding to states. Despite attempts not to penalise states like Tamil Nadu for implementing successful family planning policies, Southern states concerns about skewed financial resources, and bias in allocation were not alleviated. Such instances of skewed federalism have undermined Union-state relations, and will continue to do so.

While the warmup to 2024 has begun with the Congress Bharat Jodo Yatra, the BJPs internal reorganisation efforts, and efforts by the Mahaghatbandhan in Bihar to unite opposition leaders, an integral issue for the 2024 elections will be the role of non-Hindi states in the Union, and how to bridge the gap between the North and South. Based on the governments determination to accelerate the use of Hindi, and non-Hindi speaking states response, tensions will be fraught ahead of 2024, and subsequently, until 2031. These questions must be resolved soon with the future of Indias representative democracy and state funding hanging in the balance.

(The writer is a student of History & Anthropology at Stanford University)

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Why Hindi may set the tone for 2024 - Deccan Herald

More than one yearafter the Myanmar military staged an attempted coup d'tat, democracy defenders both inside and outside of Myanmar remain committed to restoring legitimately elected leaders and returning the country to the path to federalism. In partnership with the National Unity Government (NUG) and the Myanmar Campaign Network (MCN), International IDEA co-hosted the Myanmar Roadmap to Federal Democracy Forum in Canberra on 29 September 2022, featuring a panel discussion that provided critical insights into the constitutional illegitimacy of the military juntas regime, political challenges ahead and the opportunities for federal democracy.

Setting the scene since the events of 1 February 2021, Tun Aung Shwe, the NUG Representative to Australia, reiterated the commitment of Myanmars democratic movement, highlighting that the countrys ethnic minority groups are united in their struggle to establish a free and democratic federal system of governance. Speaking positively of the resistance movement, he pointed to the parallel systems of healthcare, judiciaryand other public services that the NUG is operating outside of the militarys rule.

Pointing to the militarys ongoing brutality, he said that the regimes actions have unified previously disparate groups, telling the audience, The social cohesion landscape is changing in the right direction, and noted that different views, such as on the management of natural resources, are being collaboratively discussed.

Moving to the panel discussion, International IDEAs Head of Myanmar Programme, Marcus Brand, NUG Union Minister of Federal Affairs Lian Hmung Sakhong and NUG Union Minister of Justice Thein Oospoke about the unconstitutionality of the coup itself, what the democracy movement needs from the international community, and how the NUG is administering a government from exile.

Summarizing the militarys public justifications for the coup, Marcus Brand said it was their own narrative that what they were doing was the implementation of a state of emergency provision of the 2008 Constitution.

But it is very important to understand that even the 2008 Constitution, which had originally been drafted by the military that constitution did not give the military a carte blanche to take over at will. That is how the military has been presenting this, but the one feature that they missed when they put together the 2008 Constitution was that they did not expect that there would be an elected president in place who would refuse to sign on to a state of emergency and hand over power to the military, he said, adding that they decided to jump over that by detaining senior elected members of parliament.

Speaking to the current situation in Myanmar, Lian Hmung Sakhong described brutal crackdowns on peaceful protests, and said the resistance movement, which comprises of multiple groups, have come together in pursuit of the Federal Democracy Charter (FDC).

The Charter has five guiding principles and 64 federal principles this is what ethnic groups are proposing and demanding. We agreed to these [FDC] principles in three weeksthat is the difference between us and the military. We the people are united and willing to establish our country base on those principles, he said.

Acknowledging the need for meaningful transitional justice, Thein Oo said the NUGs plan includes a focus on training new legal practitioners and ensuring the rule of law is evenly applied.

Our new justice system will be built within a federal system that ensures the rule of law applies to everyone, no matter who they are or where they live, he said, adding that 35 townships are living in the NUG administrative system.

Further, he called on the international community to fully, and officially, recognize the NUG.

One of our strategies for this year is to get international recognition as the government of Myanmar. The NUG needs to be able to speak formally within the UN system and have access to other governments, he said.

Digging into the specifics of the Federal Democracy Charter, Marcus Brand explained it is not to be seen as an interim constitution at this point.

I see it more as a framework than a legal, enforceable interim constitution. That is because of the fluidity of building this democratic coalitionit needs principles and guidance where hard, legally enforceable rules might be counterproductive. It rejects the validity of the 2008 Constitution, but it does not seek to fully replace it yet, because the situation on the ground is very much in fluxit is very diverse.

Instead, it clearly lays down the basic principles and structure for the new federal system that will be built. We are looking at a bottom-up system that sees the constituent unitsthe member states and territories, and the people living in them, as the original owners of sovereignty. There is a commitment to self-determination, but not just defined in ethnic terms but in more in terms of democratic citizenship, he said.

Click hereto learn more about International IDEAs Myanmar programme.

Click hereto view IDEAs analysis of the Federal Democracy Charter.

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A Myanmar roadmap: Charting the path to federal democracy - International IDEA

India is showing progress in every dimension of economic reforms. Its commitment to do so is evident from the scale undertaken at the pan-India level since 2014. Policies and schemes developed with the aim of Ease of Doing Business (EoDB) are underpinning Indias development with all, and for all, motto.

Various reforms spanning across the business lifecycle have been implemented by Ministries and States. However, most of them focused on simplification of processes, or rationalisation, digitisation and elimination of compliances. There has been limited focus on implementation of reforms from the purview of reducing Cost of Doing Business (CoDB).

India needs to sharpen its focus on CoDB. Reducing the cost is critical to not only attract Foreign Direct Investment (FDI) but also to accelerate domestic manufacturing activity. The efforts under EoDB exercise resulted in India jumping 79 places i.e., from 142nd rank in 2014 to 63rd rank in 2019 in the World Banks Doing Business Report (DBR). However, as per DBR 2020 India cost for Starting a Business stands at @7.2% of income per capita, highest among BRICS nations as well as higher compared to nations like Vietnam (5.6%) and Indonesia (5.7%). Dealing with a construction permit is nearly 4% of warehouse value in India whereas it is 2.8% in China, 0.5% in Vietnam and 1.3% in Malaysia.

A new approach A bottom-up approach may be looked upon to reduce and monitor the cost in India. Study on the impact assessment of single window systems across States may be conducted to identify bottlenecks leading to physical interventions, a nodal department can be considered to ensure the predictability and standard timeline of policy changes, an accountability mechanism to reduce delays, and fiscal assessment to achieve reasonable standardisation in the statutory cost across States are few critical interventions.

Further, the national level framework shall be developed that spans across the business lifecycle to measure and monitor the CoDB. Such a framework should be adaptive and transparent to provide ground level inputs to states on the cost scenario in their respective states and should have a target driven approach where states thrive to drive reforms to achieve targeted outcomes.

The economic transformation requires trust-based governance which is set to change the culture of regulatory oversight in the country. For example, the magnitude of punishment against procedural lapses and minor non-compliances by businesses affect the cost of doing business which inadvertently impacts the ease of doing business in the country. It is essential to re-look at provisions which are merely procedural in nature and do not impact national security or public interest at large.

India has become the fifth-largest economy in the world. A boost to productivity of businesses through reduction of CoDB will help the economy gear up for the next big leap. To ensure the effectiveness of the next generation of reforms, the spirit of cooperative and collaborative federalism is needed to enable good governance, support from the states is needed to harness the maximum benefits of the various reforms.

(The writer is Partner and National Leader, Economic Development Advisory, KPMG in India)

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Next generation of reforms should focus on reducing cost of doing business - Economic Times