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THE DIVISION OF POWER BETWEEN FEDERAL GOVERNMENTAL BODIES AND THEIR RESPECTIVE MEMBER STATES A comparison between the European Union and the United States.

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Presentation on theme: "THE DIVISION OF POWER BETWEEN FEDERAL GOVERNMENTAL BODIES AND THEIR RESPECTIVE MEMBER STATES A comparison between the European Union and the United States."— Presentation transcript:

1 THE DIVISION OF POWER BETWEEN FEDERAL GOVERNMENTAL BODIES AND THEIR RESPECTIVE MEMBER STATES A comparison between the European Union and the United States of America

2 TYPE OF GOVERNMENT USA Federal Republic consisting of 50 states, various territories, and a federal district (District of Columbia). EU 28 Member States joined together into a… Confederation? Federation? Special interest group? Sui Generis?? The EU currently has characteristics of both a confederation and a federation, but neither label is totally accurate. A new word is needed.

3 EXCLUSIVE COMPETENCES/POWERS USA Federal government Print currency Regulation of interstate and international trade Make treaties and conduct foreign policy Declarations of war Provide an army and navy Establish post offices Making of laws necessary and proper to carry out these powers* States Issue licenses Regulate intrastate businesses Conduct elections Establish local governments Ratify amendments to the Constitution May exert powers the Constitution does not delegate to the national government or prohibit the states from using

4 EXCLUSIVE COMPETENCES/POWERS: EU EU Customs union Competition rules Common commercial policy Monetary policy Marine biology (fisheries) International agreements*(when required) Member states All non-exclusive, -shared, or - complementary competences are the exclusive competences of the Member States.

5 EXCLUSIVE COMPETENCES/POWERS: BOTH USA AND EU Exclusive powers or competencies are the sole domain of the possessor. Both the EU and U.S. federal government have similar domains in which they enjoy exclusive power. Member states in the EU enjoy more autonomy that their counterparts in the US in terms of foreign policy. (States in the U.S. may not make any treaty of any kind with a foreign power)

6 SHARED/CONCURRENT COMPETENCES/POWERS USA (concurrent powers) Collect taxes Build and maintain roads Borrow money Establish courts Make and enforce laws Charter banks and corporations Spend money for the general welfare Take private property for public purposes, with just compensation (eminent domain). EU (shared competences) Internal market Social policy Social, economic, and territorial cohesion Environment Consumer protection Transport Trans-European networks Energy Area of freedom, security and justice Common concerns in the area of public health (TFEU) R&D and Space Agriculture and fisheries (very limited)

7 SHARED POWERS: BOTH EU AND USA EU member states may not regulate a shared power that has been regulated by the EU. American states may regulate shared powers that the federal government has regulated, in the case of a conflict between the two laws (DOMA) the federal law overrules the state law. This is called “Federal Preemption”, which was established in the “Supremacy Clause” in article six, Clause 2 of the United States Constitution. *Many proponents of states rights and the powers of states believe that the states have the power of Nullification of federal laws which states deem unconstitutional. However under Article three of the constitution: The power to declare federal laws unconstitutional has been delegated to the federal courts and the states do not have the authority to nullify federal law. This remains a point of contention today.*

8 SUBSIDIARITY USA The tenth amendment to the U.S. constitution states: The federal government of the US has only those power specifically granted by the Constitution…that are listed in the articles or in subsequent constitutional amendments. Any power not listed is left to the states or the people. (The tenth amendment to the US Constitution 1791). Among the reserved powers are: Laws affecting family relations, intrastate commerce, and local law enforcement activities. This is contested and not clearly defined. EU The principle of subsidiarity was entered into EU law in the Treaty of Maastricht (1992) and states: Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at [the] central level or at [the] regional or [the] local level, but can rather by reason of the scale or effects of the proposed action, be better achieved at [the] Union level (Treaty on European Union, art. 5, Feb. 7, 1992, 31 I.L.M. 247.).

9 SUPREMACY (WHICH LAW IS SUPREME?) USA When in conflict, federal law always takes precedence over state law. This is called “Federal Preemption”, which was established in the “Supremacy Clause” (article six, Clause 2 of the United States Constitution). Though in certain circumstances this is ignored or contested by the states (recent marijuana legislation). EU In shared competences EU legislation preempts and replaces Member State legislation.

10 SUPPORTING/COORDINATING COMPETENCES: EU Protection and improvement of human health Industry Culture Tourism Civil protection Administrative cooperation Education, vocational training, youth, and sports

11 CONCURRENT POWERS: USA Powers that both the federal and state governments share simultaneously. Collect taxes Build and maintain roads Borrow money Establish courts Make and enforce laws Charter banks and corporations Spend money for the general welfare Take private property for public purposes, with just compensation (eminent domain).

12 IMPLIED COMPETENCES/POWERS: POWERS OR COMPETENCIES THAT ARE NOT SPECIFICALLY DELEGATED BUT UNDERSTOOD TO BE NECESSARY OR ALLOWED USA The necessary and proper clause states: The Congress has the power to: Make all laws which shall be necessary and proper for carrying into execution the foregoing powers” (art. I, sec. 8 of the U.S. constitution). EU The Lisbon Treaty introduced “implied power” as a general rule by giving the European Union legal personality, which allows the EU to represent the member states in negotiations with non-EU countries and international organizations in all questions where the EU can legislate internally.

13 POWERS DENIED TO THE STATES AND/OR FEDERAL GOVERNMENT OF THE USA Federal government May not violate the Bill of Rights May not impose export taxes among states May not use money from the Treasury without the passage and approval of an appropriations bill May not change state boundaries States May not enter into treaties with other countries May not print currency May not tax imports or exports May not impair obligations of contracts May not suspend a person’s rights without due process

14 POWERS DENIED TO BOTH THE STATES AND FEDERAL GOVERNMENT OF THE USA Grant titles of nobility Permit slavery (13 th Amendment) Deny citizens the right to vote due to race, color, or previous servitude (15 th Amendment) Deny citizens the right to vote because of gender (19 th Amendment)

15 POWERS DENIED TO THE EU All non- exclusive, -shared, or complementary competences are the sole domain of the member states, with which the EU may assist but has no direct power. Example: Macroeconomic policy

16 MAIN DIFFERENCES Military: The EU has no army, is not exclusively competent to raise one, and has limited power to influence the armed forces of its Member States (Common self-defense policy). While the United States federal government enjoys total power and control over all armed forces regardless of which state they are from. Clear definitions: The division of powers between the EU and its member states seem more clearly defined than the corresponding situation in the USA (from which near-unending dispute stems due to creative interpretation of what is stated in the Constitution). Management of shared/concurrent competences/powers: Concerning shared powers EU regulation automatically preempts Member state regulation, while in the USA both laws/regulations are allowed to exist simultaneously with the provision that, should they conflict, the federal law/regulation preempts the state law/regulation. Eminent Domain: While both states and the federal government in the USA may appropriate private land for state usage (with compensation), only the Member States of the EU have this power. The EU itself seems to have no direct control over land. Federal government: The USA has a federal government. The EU has something that resembles the US federal government in function and somewhat in form, but is not accurately describable as a federal government. It is something new.

17 DISCUSSION Are there any other significant differences in division of power? Are the USA and the EU really that far apart in form and function? What is the most significant difference between the EU and the USA in terms of power division and why? If the division of powers in the USA is so well defined why is there so much debate? Is the EU becoming the USE (United States of Europe) as envisaged by Churchill? Should the EU take further steps toward federalization? Why or why not?

18 THANKS FOR YOUR ATENTION References: Ec.Europa.eu, ( ) Bensguide.gpo.gov, Basic guide to U.S. Government powers ( ) Europa.eu ( ) Archives.gov, Constitution of the United States: A transcription, art. 6, Clause 2 ( ) En.euabc.com, Implied powers ( ) Scholarlycommons.law.northwestern.edu, Federalism and Subsidiarity: Perspectives from U.S. Constitutional Law (2011) Acton.org, Principles of subsidiarity. David A. Bosnich, volume 6, number 4 ( ) ( )www.usa.gov ( )http://www.gpo.gov/http://www.gpo.gov/fdsys/pkg/BILLS-104hr3396enr/pdf/BILLS-104hr3396enr.pdf


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