MEXICO IN THE LIGHT OF FEDERAL MODELS*
Jaime CÁRDENAS GRACIA**
Original Text (Spanish) PDF
SUMMARY
I. Introduction. II. Theoretical Federal Models. III. Four Occurrences of Federal States: United States of America, Canada, Switzerland and Germany. IV. Rethinking the Future of Mexico's Federal System.
I. INTRODUCTION
There are few topics like that of federalism that arouse so much controversy. Federalism is not a concept, nor a theory nor a simple reality. There are various models and ways of understanding it.1
This essay develops the different federal models that US theoreticians have envisioned in the evolution of the federal system of the United States of America: dual, cooperative and asymmetric federalism. I also include a description, mainly of a constitutional nature, of some federal occurrences: the United States of America, Canada, Switzerland and Germany, so as to highlight the diversity in federal realities and how the Central European federal model had developed principles and paradigms in the face of American occurrences. The work ends with a reflection focused on Mexican federalism.
National Mexican federalism was smothered by the traits of an authoritarian regime. It is a prevalently dual federalism, which has been little discussed either politically or socially. It obviously requires adjustments in issues regarding concurrent attributes, dual administration and administrative delegation, the Senate’s role as a federal chamber, tax and financial attributions of federal states and municipalities and mechanisms of coordination and tax compensation.
These measures of transformation imply an in-depth reform of the Mexican federal framework, in both a constitutional and legal nature. But it also implies a change in Mexico’s legal awareness the favors more advanced Supreme Court of Justice interpretations and concepts of the Supreme Court of Justice on this matter.
Due to the ethnic peculiarities in Mexico, federalism should not only be seen as a distribution of jurisdiction between the states and the Federation, but as a sphere of co-existence between diverse communities, peoples and cultures.
I have no doubt that the design of the new federalism in Mexico is a challenge to the imagination and the complexity of the Mexican process of political change.
II. THEORETICAL FEDERAL MODELS
No Federation is identical to another. The same concept of Federalism is polysemous and complex. As Maurice Croisat introduces the topic: "...An author established a work dedicated to the concepts of federalism, a classification and a glossary more than 240 pages long from the terms used both in scientific works as in those for the general public".2
When Althusius (1562-1638), considered by many the first theoretician of federalism, established the first modern ideas on federalism, he never thought the federal idea, its reality and consummation, would have multiple and varied paths. Montesquieu initially said that the federal republic was a form of government based on a convention by which several smaller states agree to become members of a larger one; a kind of assemblage of societies that constitute a new one.3 Modern federalism does not have cities, societies or states as its subjects, but citizens. It is —though not only— institutional arrangement in which there is a vertical or territorial division of jurisdictions among levels of government, and each one of them has sovereignty limited to its scope of jurisdiction, and only constituents "have the last word" a condition upon which they act, within the framework of the procedure, for constitutional reform to eventually modify the reciprocal balance, rights and obligations.
The institutional arrangement called federalism has more than one theoretical classification. That is, there are different ways of conceiving it, not only from constitutional or legal norms or the interpretation the courts make of these norms, but from its historical experience and development. We can thus find various federal or federal models to explain the key concepts of this institutional arrangement, know its most important characteristics, its crucial variables and the rules or logic of the workings of each model.
The following models of federalism have been identified: dual, cooperative, competitive and asymmetrical.4
1. Dual Federalism
It has its bases, logically, in the United States of America. In the early 19th century, authors such as John Taylor held the doctrine of the rights of the states and equal distribution of power between the national government and the states. In 1934, Princeton Professor Edward S. Corwin pointed out that the origins of the model of dual federalism could be found in James Madison (Articles 39 and 46 of The Federalist).5 According to Madison, the US Constitution of 1787 was the result of the assent and ratification of the States, derived from each state’s inviolable sovereignty over many matters.
Madison’s idea, that others would reformulate to give basis to dual federalism, consisted of affirming that the states joined together to form the Union, but kept their sovereignty in such a way that the central power is a product, "a creation" of the states. The responsibility and jurisdictions of the federal government and the responsibility and jurisdictions of state governments are clear and strictly defined and separated, so that any intrusion in the state or federal jurisdiction is anti-constitutional.
Professor Corwin, from Princeton in 1957, highlighted four aspects of the dual model: 1) The central government is a government of numbered and specific branches; 2) The objectives the central power can promote according to constitutional precepts are limited; 3) In their corresponding scopes, federal and local powers are equally sovereign; 4) The relationship between these two powers is one that is characterized more by tension than by collaboration.6 The basic premise is clear: there is a clear and sharp separation between the powers in central government and regional powers, the division of power is based on constitutional norms and it is about a set distribution, unless the Constitution is modified.
The dual model was in force in the United States of America during a good part of the 19th century with catastrophic consequences, like a civil war. Implementing the dual model in the political sphere allows secession, that is, the voluntary withdrawal of local powers from the federal union in the event of non-compliance to that which is stipulated in the Constitution. Moreover, the dual model sanctions declarations of nullity on central the law or laws local powers make as a result of a constitutional breach of jurisdiction, as contemplated in Mexico during part of the 19th century.7 A third mechanism is called an interposition, which consists of having the regional power place itself between its own citizens and central power actions in order to prevent central actions, which are considered illegal, from being carried out. Finally, the model creates the doctrine of states’ right to oppose any attempt of federal centralization.
Currently, the dual model in the United States of America is simply a faint historical recollection. Various events and legal causes have contributed to this. Among the events, without a doubt, is the bitter experience of the US Civil War. One of the legal causes is a very important set of Supreme Court constitutional interpretations through doctrines, such as those of "implicit power" and "national supremacy", as well as a wide range of precedents regarding cooperative federalism.8
2. Cooperative Federalism
Theoretically, it is a formula created in the 1960s, although historically and legally it began earlier. The origin of cooperative federalism took place during the "Great Depression" and the model consolidated itself over the next fifteen years after the end of World War II. This model coincides with the Welfare State, at a time when the US federal administration, as well as that of Western Europe, developed a process of growth and support to the social needs of the entire population, to the detriment of state powers.
The cooperative model is a functional interpretation of these facts and events and it is centered on processes of financing, design, loans and public service administration. It identifies its dominant norm in the co-participation of all the powers in providing such services. Its theoretical design is due to Morton Grodzins and his famous work: The American System. A New View of Government in the United States.9 The basic premise or principle of cooperative federalism consists in the premise that the powers, responsibility and responsibilities of central, regional and local government bodies are shared powers, responsibility and responsibilities. Jurisdiction and responsibility are not clearly distributed among the various powers. The development and execution of public policies are shared. The cooperative model holds that the central and state powers are mutually complementary parts of a single government mechanism, that all the powers are simultaneously involved by means of central, regional and local officials in order to reach real objectives with results that benefit the various spheres of power or the society as a whole. Officials from different levels do not work together as rivals, but as partners.10
Criticism to the cooperative model rests on facts. What happened in practice in the United States of America, as well as in other European countries, was a constant increase of central power and the ensuing weakening, in realistic terms, of state and local powers, which in some cases, in the golden age of the Welfare State, were transformed into administrative appendages of the federal government.
During the 1960s and 1970s, and even today, there were and are various theoretical attempts in the United States of America to save and/or question the model. Thus, there is talk of permissive federalism,11 centralized federalism,12 peripheral federalism,13 coactive federalism,14 prefectorial federalism,15 etc.
When Ronald Reagan became president in 1981, another way of understanding federalism was being discussed. The Reagan model or New Federalism came from the crisis of the Welfare State, and proposes the drastic reduction in the inter-governmental role of the federal power by means of budget cuts and cutbacks in federal aid and deregulation, in addition to returning responsibilities to the states.16 Thus, a new stage of public debate began in the United States of America regarding how to understand the relationships between the states, among themselves and with the federal government.
3. Competitive Federalism
This model entails a break with previous paradigms. The principles of the model do not come from the legal field, but from economics. The competitive theory responds to one of the fundamental problems of any democracy: the problem of how to control the Executive Branch and the government, so that it is always aware of its citizens’ concerns, needs, preferences and wishes, instead of acting in response to particular interests, whether personal or someone else’s. For this to happen, the theory suggests that the competence between powers (and between government officials) is the appropriate mechanism to ensure democracy through defending and promoting rival and opposite interests.
The elements of this model are: 1) There are autonomous states and local governments that are independently responsible for the welfare of the people living in their territory; 2) In each territory, the cost of goods and public services are equal to the revenue collected from the taxpayers. Costs are not externalized or transferred to the central government or to taxpayers throughout the country; 3) Overflows of costs and benefits from one jurisdiction to another are very few, and there is no connivance between state or local powers to restrict competition; 4) There is reliable information available to the consumers-taxpayers about the services and costs provided by all the state and local governments in the country; 5) There is consumer-taxpayer mobility and a tendency to consider public services and their costs important criteria in deciding on one’s place of residence.17
Competition between powers forces local governments to become more efficient, to improve the quality of the services they are responsible for and to lower costs. The model also encourages the search for innovative public policies.
In this model, the role of the central power consists of introducing and maintaining stability in the competitive process among the states. It also limits itself to the careful design of a program of inter-government subsidies aimed at re-establishing competition among all the elements in the system. Certain subsidies are important, such as per capita subsidies that aim at counteracting differences among citizens in terms of income and wealth. In brief, the central power should always ensure equal competition among states.
There are authors like Kincaid,18 who have proposed a bridge between the cooperative and competitive models. The fusion could be summed up as follows: the powers of a composite State approve the Constitution and commit themselves not to become part of unleashed competition, but to compete and cooperate within the limits established in the Constitution, as well as to follow the agreed upon rules, that implements a power that extends over all of them: the federal or central power. According to Kincaid, if these conditions are fulfilled, then intergovernmental competition (vertical) limits the monopolistic tendencies of the federal or central power while interstate competition (horizontal) limits each power’s relationships with the others. It is therefore concluded that the system exacts the establishment of cooperative relationships so that there can be competition, and it exacts the existence of competitive relationships so that there can be cooperation.
4. Asymmetrical Model
This is a theoretical model from the 1950s which has not had transcendence in the United States of America, but that has had considerable impact in other countries, such as Spain. This model is based on the differentiated recognition of certain national identities, which, due to their historical or cultural relevance, deserve a different legal status to that of the rest of the nationalities.19 Cataluña or the Basque Country have insisted on this since the creation of the 1978 Spanish Constitution and do not accept the governing principles of the federal system such as the equality, homogeneity and uniformity of the units that make up a Federation. Thus, the asymmetrical model holds that each regional power can have a specific and unique relationship with the central power and that the division of power between central and regional powers is not the same in each instance since there are significant and relevant differences between states.
In reviewing the different theoretical models of federalism, we find that the dual model is becoming extinct, that the cooperative model requires definite alterations so that the states will not succumb to the central or federal power, that the competitive model demands pre-requisites like that of information for citizens about the comparative state advantages or disadvantages, which in practice is very difficult to obtain, and that the asymmetrical model breaks with the governing principles of federalism: equality, homogeneity and uniformity among states where sufficient historical reasons are lacking.
Let us now view four historical federal occurrences, to see important differences between federal States.
III. FOUR OCCURRENCES OF FEDERAL STATES: UNITED STATES OF AMERICA, CANADA, SWITZERLAND AND GERMANY20
1. United States of America21
Section 8 of Article 1 lists the powers of Congress and the Amendment X states that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people. The prohibitions affect the obstacles that States could apply in the establishment of the internal market and international trade. The clause on constitutional supremacy, on the other hand, indicates that the Constitution, the laws of the United States of America and international treaties constitute the supreme law of the nation and should be abided by all judges.22
In the United States of America, states have autonomy to organize power with a single limitation: the republican form of government shall be guaranteed. The states, like federal powers, must respect individual rights (suffrage, territorial area, etc.). State autonomy has not translated into a great diversity of state regimes. All of them belong to the presidential system, with an elected governor with more or less extensive powers depending on the states and a bicameral legislative branch, with the exception of Nebraska. The only cases with substantial differences come from the existence, in some states, of procedures of direct democracy: proposed laws, consulting or mandatory referendums, as well as the recall procedure that exists in 21 states.
As to the role of courts in the United States of America, and as of the famous 1803 sentence in the case of Marbury vs. Madison, the Supreme Court has extended the powers and attributes of federal bodies. A good amount of jurisprudence is based on the doctrine of implicit powers. This interpretation is based on the final clause of Article 1, Section 8, of the Constitution, which defines the powers of Congress and establishes that it can make all the laws which shall be necessary and proper for carrying into execution the foregoing powers.
With this doctrine, President Washington established the creation of the federal bank. Later, in 1819, the Supreme Court, in the McCulloch vs. Maryland ruling extended the doctrine, interpreting "the laws, which shall be necessary and proper" as those making the execution of the powers granted possible. In the following years, the doctrine strengthened itself with other innovations. In the 1960s and 1970s, it was federally legislated in civil rights matters by means of an interpretation of the Amendment XIV. Another key aspect in the role of the courts and of the Supreme Court in matters of federal interpretation is the scope of coexisting jurisdictions that allows states to intervene as long as their decisions do not conflict with a congressional decision. In this case, the state law must concur with the federal law.23
As it is well known, the states are represented in the Senate, which embodies the federal principle. (In Mexico, this nor was followed until very recently.) Legislative jurisdiction is the same in both chambers, although this equality of legal attributes leans in favor of the Senate, since the ratification of international treaties signed by the president needs Senate approval by a majority of two-thirds, and the appointment of high public officials, Supreme Court judges and ambassadors require Senate ratification. Senate protocol, which is a form that comes from constitutional tradition, states that before proposing the appointment of a state official, the president must obtain prior consent of the senators that represent said state, since, without this support, the rest of the senators would back their colleagues and reject the nomination.
US Constitutional reform can be carried out by one of two ways:
a) When two-thirds of both Houses deem it necessary, the Congress shall propose Amendments to the Constitution, which need to be ratified by the legislature of three-fourths of the several states.
b) On the application of the legislatures of two-thirds of the several states call a convention for proposing amendments, which need to be ratified by the conventions of three-fourths of the several states.
The only limitation for constitutional reform stipulates that no proposals for amendment can deprive a state of its equal suffrage in the Senate. The twenty-seven amendments adopted so far have been passed by means of the first procedure contained in Article 5.
There are other elements to judge US federalism or that of any other country that do not necessarily come from the constitutional framework, but that determine it. I am referring to the party system, the nature of the administration, the financial relationship between the states and the Federation, among others, which condition the legal framework.
The US party system is widely de-centralized as is its electoral system. The consequences are well known:
a) A flexible two-party system, without a strong vote in Congress.
b) A distribution of nationally elected candidates in groups according to the dominating interests in its territory.
c) Awareness of local topics in Congress.
d) The absence of a constant majority for the president.
e) Proliferation of parties and local forces, etc.
Public administration in the United States of America is dual. Both the Federation and the states have administrative bodies to put into effect the powers set forth in the Constitution and corresponding laws.
The inconveniences of this distribution of administrations, consists of elevating budget costs and, in some cases, producing duplicated functions. In concurrent matters, such as social security or tax administration, the federal and local levels manage it in a predetermined way, with the resulting risks of conflict or paralysis in the event of disagreement.
As to financial relationships, in the United States of America, the Constitution reserved duties to Washington and stipulated that the Congress could also collect taxes, charge imposts or duties on imports and exports under certain conditions, and particularly, the allocation of the earnings of direct taxes among the states, proportionally to its population. These provisions were modified with the adoptions of Amendment XVI in 1913. With this amendment Congress has the power to lay and collect taxes on incomes, regardless of their source, without apportionment among the several states, and without regard to census or enumeration. As to the rest, the principle of coexisting competency, without exclusivity or subordination operates. Coexistence poses the issue of coordination among the levels of taxation, which has not happened in practice and that which has been the norm is a delimitation: the federal government benefits from individual and corporate income taxes, inheritance tax and duties, and the states levy income taxes on individuals, but they are lower taxes, and the benefit from the indirect taxation and property tax.
As to the forms of cooperation among states, and between states and the Federation, it is worth stating that agreements between states are frequent and do not require authorization from Congress, according to the 1893 Supreme Court decision (Virginia vs. Tennessee) unless it affects federal jurisdiction. Cooperation between states allows for solving border conflicts and it later extended to civil protection, urban planning, state territory, the environment and pollution. Vertical cooperation, in addition to taking place through legal channels, is updated through a series of bodies: the National Governors Conference, the Council of State Governments, the American Municipal Association, the United States Conference of Mayors Association, and the National Association of Attorneys General. Furthermore, through different lobbies, states and important cities have an ongoing negotiation with the federal government about various public programs.
2. Canada24
The principle of distribution of jurisdictions is contrary to that of almost all federations. According to Article 91 of the Constitution, the Federal Parliament can make laws for the peace, order and the good government of Canada in relation to all matters not coming within the sphere of the legislatures of the provinces. The same Article 91 lists twenty-nine spheres of federal jurisdiction. The Constitution also lists sixteen subjects exclusive of provincial legislation in Article 92, and in Article 93, it extends provincial legislature to education with the reservation of the rights of religious minorities. The Constitution, in Articles 94 and 95 cites coexisting subjects: old age pensions, agriculture and immigration.
In Canada, the first paragraph of Article 92 states that in each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; and regarding the rights contained in the Canadian Charter of Rights and Freedoms in the Constitution Act of 1982. Even then, uniformity is the norm: all governments practice British parliamentarianism with a prime minister who is the head of the ruling party in provincial parliament, which always consists of one House.
Canadian jurisprudence has had its ups and downs. In a famous 1892 ruling —Liquidateurs de la Banque Maritime— the courts set down criteria in favor of the provinces, which have been repeated in other cases, for example in making restrictive interpretations of constitutional articles that embody the powers of the Federation to limit federal or central jurisdictions. In more recent cases, especially since 1952, and with the Johannesson ruling, the courts ruled that aeronautics is a matter of national concern, which falls under the general clause of Article 91 of the Constitution.
Canadian Two House system has been guided by the logic of parliamentarianism: although constituents gave the name of Senate to the second chamber, its political and parliamentary role is closer to that of the British House of Lords. Representation, however, belongs to a territorial concept from five regions. Two of them, which are really two provinces, Ontario and Quebec, cover two-thirds of the Canadian population. Therefore, these provinces are represented by twenty-four senators each. Maritime provinces form a region of twenty-four senators, ten of which belong to Nova Scotia, ten to New Brunswick, and four to Prince Edward Island. Another region is made up of the four Western provinces, with six senators each, totaling twenty-four. Lastly, Newfoundland, which joined the Canadian confederation again in 1942, has the right to six senators. Inequality in representation is exacerbated by the form of appointing senators, since they are summoned by the Governor General in the name of the Prime Minister. This right of appointing does not escape the prevent the ruling party from awarding its faithful or notable followers that are nearing the end of their active political career. Once appointed, the senators hold their place in the Senate until the age of 75. Under these conditions, they lack the political legitimacy that elections give and the support of the provinces they represent. Furthermore, rarely do they oppose the will of the House of Commons, even when the Canadian Two House system is comprehensive.
Therefore, according to the Constitution Act, the Canadian federal cabinet takes on the role suitable to the second House of a Federal Parliament. Since 1867, delegates from the provinces have agreed upon the bases of a government representation that is almost proportional to the population of the provinces. This federalization of the federal cabinet, regarding its composition will not ever be doubted again. To the contrary, nine acts have been introduced based on this basic act:
a) Each province is represented by at least one minister.
b) This representation must take into account demographics, as well as the dominant concerns of each province. For example, the Attorney General is ascribed to a Quebecois in order to bear in mind the particularities of the francophone province in terms of civil law; that of Minister of Agriculture to a Westerner, that of Minister of Finance to a minister from Ontario, etc.
c) Finally, all the regions of the country will benefit, as much as is possible, from representation in the federal cabinet.
Due to its origins in British tradition, the 1867 Constitution did not include a formula for amending or reforming the Constitution. In 1982, a procedure for amending the Constitution is established. This procedure was authorized by resolutions of the Senate and House of Commons and resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, at least 50% of the population of all the provinces. An amendment that derogates from the legislative powers or rights of the legislature requires a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies in the required number of provinces. However, in this case, a province can express its dissent by a parliamentary resolution that allows it to not effect the amendment. Finally, An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province unanimous agreement is needed for modifications concerning the office of the Queen and her representatives; the right of a province to a number of members in the House of Commons, not less than the number of senators; the use of the English or French language; the composition of the Supreme Court and amendment to the 1982 Constitution Act procedure for amending the Constitution.
Aspects regarding administration, the party system and financial relations manifest themselves as follows: administration is dual with practices that still highly resemble clientelism. This creates unnecessary expenses and, for the citizens, the risk of excessive administration with different and often not very practical procedures, for certain activities pertaining, for example, to the sphere of law enforcement or that of benefits and social services.
As to the party system, Canadian political organizations are very homogenous, a consequence of the parliamentary regime inspired from the British one that has made way to a dominant two party system in which the two structured parties have alternated power since 1867: the Conservative Party and the Liberal Party. But decentralization is also a trait of the two-party system and it specifically translates into the organizations unfurling in the provinces. The two parties form two structured hierarchies that confront each other as a majority and parliamentary opposition. Each hierarchy is made up of a parliamentary group, a cabinet and a prime minister, or of a cabinet in the background and an opposition leader. Both for the government and the opposition, parliamentary norms and values are those that guide the hierarchical workings of the parties and the House members’ votes. Party structure is found, among other things, at the service of provincial autonomy, which is reinforced by means of a demanding defense of legal interests. This defense can bring the impression of uprising against national parties and lead to the creation of parties of a provincial or regional nature. This happened in the Western provinces in the 1930s, where the "Social Credit" Party came into being in Alberta and the CCF in Saskatchewan, where they exercised power in these provinces, and recently the Reform Party. As happened in Quebec, where nationalism gave way to the Union Nationale Party —winning elections in 1935, from 1945 to 1960 and later from 1966— and the Quebecois Party (in power from 1976 to 1985).
To respond to the demands of autonomy and to efficiently fight against these local organizations, the two large federal parties unfolded their structures, creating a national organization and ten provincial organizations, giving these a large degree of freedom. Rotation of the elite is weak, in the sense that only a few of those elected in the provinces make a career in Ottawa.
As to financial relations, in fact, the federal government has exclusive legislative jurisdiction on "the raising of money by any mode or system of taxation", while the provinces have exclusive legislative jurisdiction over direct taxation in order to the raising of a revenue for provincial purposes. Jurisprudence has generated the following criteria:
a) The federal government only has one exclusive jurisdiction in matters of indirect taxes and duties.
b) The federal government can also obtain revenue from these taxes for federal purposes.
c) There is coordination, since the 1940s, between the federal government and the provinces, within the framework of the multi-annual tax agreements, principally in terms of the three direct taxes: personal and corporate income tax and succession duties.25
The main issue pending in Canada has to do with Quebec’s position. Those defending Quebec sovereignty are still faithful to the sovereignty-association model established since 1867 and which is based on the sovereignty of the two Canadian nations and their association in an adaptation of the current common market formula. Canadians seem to believe that the European Union is proof that states with diverse cultures can enter into an economic union while preserving their political sovereignty.26
3. Switzerland27
Swiss and German federalism are different from the US models because of the importance given to coexisting legislation. Article 3 of the Swiss Constitution dated April 18, 1999, states: "The Cantons are sovereign insofar as their sovereignty is not limited by the Federal Constitution; they shall exercise all rights which are not transferred to the Confederation".
Title 3 of the Constitution, under the heading Confederation, Cantons and Municipalities, states in Article 42 that the Confederation shall accomplish the tasks which are attributed to it by the Constitution and Article 43 states that the Cantons shall define the tasks which they shall accomplish within the framework of their powers. Article 44 defines the principles of cooperation between the Confederation and the Cantons, stipulating that the Confederation and the Cantons shall collaborate and shall support each other in the fulfillment of their tasks; that they owe each other mutual consideration and support and that they shall grant each other administrative and judicial assistance. Furthermore, disputes between Cantons, or between Cantons and the Confederation, shall, to the extent possible, be resolved through negotiation or mediation.
Cantons can participate in cases stipulated by the Federal Constitution, in the decision-making process on the federal level, in particular in federal legislation. The Confederation informs the Cantons timely and fully of its plans and consults them if their interests are affected (Article 45). Cantons implements federal law —delegated administration—, and the Confederation leaves the Cantons as large a space of action as possible and takes their peculiarities into account. Moreover, the Confederation takes into account the financial burden that is associated with implementing federal law by leaving sufficient sources of financing to the Cantons, and by ensuring an equitable financial equalization (Article 46).
The Confederation respects the autonomy of the Cantons (Article 47), and the Cantons may enter into intercantonal treaties and may create common organizations and institutions. Among other things, they may join forces to fulfill tasks of regional interest, and the Confederation may participate in such organizations and institutions within the limits of its powers (Article 48). As in Germany, federal law takes precedence over contrary cantonal law (Article 49).
Every Canton adopts a democratic Constitution, which should not be contrary to federal law (Article 51). The Confederation protects the constitutional order of the Cantons and intervenes if the inner order of a Canton is disturbed or threatened and cannot be protected by the Canton alone or with the help of other Cantons (Article 52).
Foreign relations are a federal matter (Article 54), but the Cantons participate in the preparation of decisions of foreign policy, which concern their powers or their essential interests. The Confederation must inform the Cantons timely and fully and consult them. The Cantons can participate in international negotiations (Article 55). The Cantons may conclude treaties with foreign countries within the scope of their powers, but the treaties may not be contrary to the law nor to the interests of the Confederation nor to the laws of other Cantons. Therefore, before concluding a treaty, the Cantons must inform the Confederation (Article 56).
Security, national and civil defense are coordinated efforts (Article 57). However, civil protection is a federal matter (Article 61). Education is a cantonal matter (Article 62). Professional education and universities are confederate matters (Article 63). Culture is a cantonal matter (Article 69). The regulation of the relationship between church and state is a cantonal matter (Article 72), but a bishop cannot be named without approval from the Confederation (Article 72). The Confederation legislates on the protection of man and the natural environment (Article 74), establishes principles on zoning (Article 75), while the protection of nature and cultural heritage is a cantonal matter (Article 78).
As to its financial regime, the Constitution states in Article 126 that the Confederation shall compensate for the expenses and incomes every quarter, and shall repay future deficits. Intercantonal double taxation is prohibited (Article 127). The Confederation may raise a direct tax under the following rules: a) of at most 11.5 percent on the income of natural persons; b) of at most 9.8 percent on the net profit of legal entities; c) of at most 0.0825 on the capital and the reserves of legal entities. The Cantons can assess and collect the taxes. Three tenths of the gross tax yield shall fall to the Cantons and at least one sixth of this amount shall be used for financial equalization among Cantons (Article 128). The Confederation establishes principles on the harmonization of direct taxes and may issue regulations against arrangements granting unjustified tax advantages (Article 129). The Confederation may levy a value added tax with a maximum tax rate of 6.5 percent. 5 percent of the tax yield is to be used for measures in favor of low-income groups (Article 130). The Confederation may levy special consumption taxes on the following items: tobacco, alcoholic beverages, automobiles, oil and other mineral fuels, but one tenth of the net yield of the tax on distilled spirits is credited to the cantons (Article 131). The Confederation may levy a stamp tax and a withholding tax on lottery gains (Article 132). Legislation on customs duties and other levies on trans-border goods traffic is a federal matter (Article 133).
As to the power structure, the Parliament is made up of two chambers: the House of Representatives and the Senate. Both have equal powers in legislative matters (symmetrical federalism). The Cantons are sub-divided into municipalities, the number of which currently comes to 2903, a number that tends decrease due to the unions that take place among them. As mentioned before, all the cantons have their own Constitution and enjoy a large degree of freedom to develop them, but they must follow Republican form and ensure exercise of political rights. Government is effected by the system of direct democracy in some cantons, such as in Glaris and Appenzell Rhodes-Interieures.28
Switzerland is a country of constitutional peculiarities. Its Executive branch is collegiate, made up of seven members that represent the four traditional ethnic groups: the German, the French, the Italian and the Romansch. Its foreign policy is based on the principle of neutrality. But where this singularity shows itself most is in the role it plays in the mechanisms of participative democracy in forming public will, in making laws and in constitutional reforms, along with its condition of multi-national and multi-cultural State, which gave way to a democratic political category known as a consocional democracy.29
4. Federal Republic of Germany30
The German model contained in the 1949 Basic Law is similar to the Swiss model. The Länder have well-defined powers. The Bund [the Federation] have exclusive jurisdiction in matters that affect sovereignty, which Article 73 stipulates are foreign affairs, defense, citizenship, freedom of movement and currency. The Länder have jurisdiction over concurrent legislation as long as the Federation does not use its right to legislate to respond to a need for federal ordinances in favor of economic and legal unity, and uniformity in living conditions. In the event of conflict, Federal law prevails over Länder law. The union between the Federation and the Länder can also result in a law-framework, in which the Bund establishes the principles and the Länder, the advancement.
In Germany, the Länder enjoy constitutional existence of their own, in certain cases prior to the Basic Law of 1949. They preserve their constitutional autonomy as long as it abides by the principles of Rule of Law, a republican, democratic and social State, as set forth in the Basic Law. Thus, few variations are observed since the Länder follow a parliamentary regime, with a one-chamber parliament and a government led by a minister-president. Only Bavaria observes a type of legislative government that does not admit the possibility of dismissing the Executive.
In Germany, constitutional interpretation is made through the Federal Constitutional Court sitting at Karlsruhe. This court benefits from the autonomous control of the constitutionality it has by means of five different procedures, even in the absence of litigation: with an application by the federal government, a Land government, one third of the members of the Federal Parliament or even in the case of disputes between federal organs or between the Federation and a Lander. In general, the court prefers to give an interpretation according to the Constitution with instructions for its application by lower courts, or even give instructions to the legislator to modify his text within an established period instead of declaring the provision unconstitutional.31
The Federal Constitutional Court has issued important rulings. In a well-known sentence in 1961, the Bund’s intent of creating a second national television company was refused. The court reminded the Bund that cultural matters were responsibility of the Länder and opposed any involvement of federal authority. In the German concept, a break with US tradition is clear: general clauses of legal power are not an excuse for doctrine interpretation to look for what is implied, derived or associated. As in Switzerland, it is a different concept of law and of federalism.
The German two-house system displays a distinct concept. Due to is type of representation, the Upper House of Parliament, the Bundesrat, is mainly a confederal institution, which, according to the Basic Law, consists of members of the Länder government. The number of representatives per Land depends on the population figures of each one, with three delegates for the smallest Land, and up to six for the more populated ones. To this unequal representation ranging between three and six, it should be mentioned that in voting sessions, the votes of each Land may be cast only as a block vote, following the indications of the Land government. As to the legislative powers of the Bundesrat, there is a significant break with symmetrical models. In principle, this house oversees that federal laws do not go against the rights and interests of the Länder. In compliance with this responsibility, the Bundesrat can refuse its consent in two ways. First of all, it has the power of definite veto in cases set forth in the Basic Law, which in general are those regarding financial or administrative matters between the Bund and the Länder or in cases of crisis. However, since the Länder are in charge of carrying out federal laws, it so happens that 50% of these laws are submitted to the Bundesrat for approval beforehand. Furthermore, it also has the right to use its power of stay veto in other cases of commissions. Frequently, the difficulties that arise from this power of veto are overcome by means of a committee of joint consideration, composed of one representative from each Land and by eleven members of Parliament. In almost all cases, this committee reaches a compromise acceptable to both houses.
In the Federal Republic of Germany, the institutions and the scope of discussion and commitment that belong to cooperative federalism are numerous and various. In addition to the role of the Bundesrat, so prominent in the defense of the interests of the Länder, there is a series of discreet and informal encounters among the eleven heads of government and the federal Chancellor. There is legal basis for these encounters in Article 31 of the Internal Regulations of the Federal Government that allow the Chancellor to invite the eleven Minister Presidents several times a year "to discuss important economic, social and financial issues and to contribute to a unitary policy and mutual understanding". The effectiveness of this instrument closely depends on the party system. In times of growing polarization among them, the majority-opposition struggle finds its voice in this process and divides governments according to their party affiliation.
Due to the prominent role of the Bundesrat, direct intervention of the Länder in constitutional reforms is not set forth. Thus, according to the terms of Article 79, amendment to the Basic Law requires the affirmative vote of two thirds of the members of each House of Parliament. The Länder also benefit from Article 79.3 of the Basic Law, which expressly prohibits any amendment affecting the division of the Federation into Länder, their participation in principle in federal legislation, or the basic principles set down in the articles regarding basic rights.
The principle of delegation governs German administration. That is, it is not a dual administration like that of the United States or Canada. Delegated administration is limited by the fact that the enforcement of a significant part of federal legislation belongs to local administrations. Even then, delegated administration is not absolute. Certain laws are implemented by federal bodies that have the requisite legal and financial powers, for example, in the area of defense or foreign matters. The Federal Government exercises supervision over the execution of laws in accordance with applicable laws. There are various forms of intervention: the federal government can request that the Bundesrat examine the cases in which a Land oversteps its powers of execution; issue administrative rules with the consent of the second chamber or, in some cases, issue individual instructions. Furthermore, there is the alternative of intervention from the Federal Constitutional Court.
The German party system tends towards centralization. Parties are more national structured organizations than federations of regional parties as in Switzerland or the United States of America. Various consequences arise from this situation: a) The nationalization of local elections that become a test for national parties, and b) The influence of party orientation in the makeup of Länder governments and their representation in the Bundesrat.
Even then, the local barons of national parties maintain a high level of independence of decision and of actions. This can translate, as in Bavaria, into the creation of an independent Christian-Democrat party. For example, F. J. Strauss, Minister President of Bavaria, has always been a difficult colleague for national CDU leaders, often threatening to break with or break up the union.
The tendency towards centralization, however, is compatible with the existence of elements of political autonomy. Thus, for the opposition, seizing power takes place by means of victories in the Länder. To do this, the regional particularities need to be adopted in local elections and later upheld in the Bundesrat.32
As to financial relations, it is worth mentioning that the Federation has power to legislate on customs and fiscal monopolies, and concurrent power to legislate on the most important revenues, especially when Land law might prejudice the interests of other Länder, or the maintenance of legal or economic unity and the maintenance of uniformity of living conditions necessitates it. The financial system is set forth in Articles 104 to 115 of the Basic Law. These articles establish the main rules of apportionment of the federal budget, exclusive and concurrent powers, financial equalization, budget management in the Federation and the Länder, income tax and indirect taxes, the role of communes in financial distribution, federal regulations and the revenue administration.
IV. RETHINKING THE FUTURE OF MEXICO’S FEDERAL SYSTEM
In the light of the models and the comparisons of the described occurrences, we should re-think Mexican federalism. On a constitutional level, it is necessary to overcome the outline of dual federalism in terms of the so-called co-existing, and concurrent competencies to introduce the model of prevalence of federal law over local law in those matters. Such an outline should come along with a strong decentralization and administrative delegation at a municipal and state level to avoid problems of duplicated administration.
The Constitution needs a federal license that gives it coherence to the framework of existing powers among the Federation, states and municipalities. It is fundamental to grant exclusive powers to the states, mainly in terms of financial matters.
The Senate should be the legislative body of federalism and for this it is indispensable to grant it attributes of coordination, approval and control over public policies that coincide in coexisting and concurrent powers. The Senate should participate in approving the expense budget. In terms of approving and ratifying treaties, it is indispensable to give direct participation to states in the debates prior to the approval and/or ratification of international agreements.
As to financial powers, attributes should be established in each sphere: federal, state and municipal. It is necessary for the Constitution to establish the rules of distribution of the shared revenue, both for income tax and indirect taxes and duties. The rules of participation in expenditures and on the State’s cultural heritage should also be provided for in the Constitution. Rules of fiscal equivalence and of compensation should be stipulated in the Constitution.
We find that the main flaw in Mexican federalism lies in its dualist concept that hinders proper understanding between the different levels of government. Even then, there are other risks that are fundamental to take care of.33
1. The Risk of Separatism. This happens when there is no sense of the union the Federal State is. They are the opinions of authors like Waitz, Seydel and Calhoun, who upheld the theory that the only sovereigns are the member states and not the Union. The theory, though technically overcome, confuses Federation with confederation, can have modern cloths and can argue, for example, the right to secession of member states for reasons that are not only political, but economic or racial.
Any authentic theory of federalism should tend towards unity, unity of that which is numerous in terms of plurality, in opposing absolutism, and in asserting interdependence. Federalism is the enemy of centralism, but at the same time, it defends unity in diversity.
It is true that the risk of separatism not only appears in federal States when they do not have the proper institutional and political instruments, but it also happens in unitary States. Even then, there is no institutional or theoretical reason to make separatism possible in the federal State. The premise is unity in plurality. Therefore, a key element of any federal State should be the supremacy of the Constitution, which the Germans call the clause of prevalence: Bundesrecht bricht Landesrecht34 (Federal law overrides local law).
2. Cacique Power. A federal State that is not immersed in a democratic context, either in institutions or actions, runs the risk of being fronts for cacique power bases and local interests, as has happened in Mexico. Authentic federalism should allow mechanisms of federal inspection that oversee and guarantee an extent of democracy in institutions and local actions. In these times of transition to democracy in Mexico, a federalism that is misunderstood and poorly implemented could be the main vehicle of obstruction of national political parties, for example, by means of opposing local and regional party stratagems, bringing out regional sentiments, the progress of national parties and democratic development, whether as a strategy or intentional fostering of regional separatism.35
3. The Risk of Regional Social-Economic Inequality. As a possible solution to the unequal distribution of wealth, some parties have proposed that there be a tax-type power between states to attract investment to their respective territories.
Horizontal competition transfers the market model to the federal scope and can come to break with unity and become a distorting phenomenon of the balance in the Federal State with such serious consequences as aggravating local sentiments and separatist divergences. Therefore, this federalism needs to have instruments of coordination such as those that establish similar tax bases for all states; tax collecting agreements setting aside a percentage to be destined to a fund for inter-territorial development and compensation; in vertical balances, that is, federal advancement funds in charge of maintaining a standard level of development.36
4. The Risk of Thinking Federalism as Reductionist. There is a strong tendency in Mexico to think that the federal State solely implies a form of territorial organization with decentralization and autonomy. However, there are many federal models, one of which could be very useful to Mexico at this time when it is re-discovering itself as a multi-ethnical State. I am referring to the non-territorial federalist concept, in which goes beyond the autonomy of a territorial base to turn into autonomy that is understood as coming from plural societies with a diverse ethnic makeup.
In countries like Belgium, this kind of non-territorial federalism, which aims at balancing the different linguistic and cultural communities in the country, can be implemented. The division of powers in this non-territorial model especially focuses on issues of culture and education.
Mexico could easily analyze occurrences like the abovementioned one and, by means of the institutional mechanisms of this kind of this non-territorial federalism, find answers and solutions to Mexican ethnic diversity in such a way that there would be a new balance that consolidates national diversity and avoids the risk of separation or political instability.
5. The Risk of not bearing in Mind Reforms to the State. With the federal system as important as it is in Mexico, the comprehensive form of the Mexican State must not be forgotten. One reform to the federal issue implies reforming other institutions, like the Senate and the Judiciary, while possible creating new independent bodies in charge of resolving federal disputes. Reforms to federalism would affect municipalities, which have to do with public administration, surely diminishing the powers of the federal Legislative Power, limiting the traditional role of the Executive, etc. This means that Mexico no longer needs partial reforms because all the institutions are interrelated. Mexican transition requires a complete project, a project that contemplates the type of State and society Mexicans want for the 21st century.
Notes
* Translated by Carmen Valderrama.
** Researcher at the Legal Research Institute.
1 Badía, Juan Fernando, El Estado unitario, el federal y el Estado autónomo, Madrid, Tecnos, 1986, pp. 74-148; and La Pergola, Antonio, Los nuevos senderos del federalismo, Madrid, Centro de Estudios Constitucionales, 1994.
2 Croisat, Maurice, El federalismo en las democracias contemporáneas, Barcelona, Hacer-Fundació Rafael Campalans, 1994, p. 15.
3 Secondat, Charles-Louis de (Barón de la Brede y de Montesquieu), Del espíritu de las leyes, Libro IX: De las leyes en su relación con la fuerza defensiva, Madrid, Tecnos, 1998, p. 91.
4 López Aranguren, Eduardo, El Federalismo americano: las relaciones entre poderes en los Estados Unidos, Madrid, Instituto de Estudios de Administración Local, 1987; and López Aranguren, Eduardo, "Modelos de relaciones entre poderes", Revista de Estudios Políticos, Madrid, Centro de Estudios Políticos y Constitucionales, No. 104, April-June 1999, pp. 9-34; see also Hueglin, Thomas O., "Democracia, federalismo y gobernabilidad: lecciones de la Unión Europea y algunas observaciones del caso brasileño", Revista Foro Internacional, México, El Colegio de México, No. 3, July-September 2001, pp. 501-529.
5 Sánchez Cuenca, Ignacio and Lledó, Pablo, Articles federalistas y antifederalistas. El debate sobre la Constitución americana, Madrid, Alianza, 2002, pp. 102-110 and 118-125.
6 Corwin, Edward S., "The passing of Dual Federalism", in McCloskey, Robert G. (ed)., Essays in Constitutional Law, New York, Alfred A. Knopf, 1957.
7 González Oropeza, Manuel, El federalismo, Mexico, UNAM, IIJ, 1995, pp. 11-20 and 101-119.
8 Schwartz, Bernard, El federalismo norteamericano actual, Madrid, Cuadernos Civitas, 1984, pp. 39 et seq.
9 Grodzins, Morton, The American System. A New View of Government in the United States, Chicago, Rand MacNally, 1966.
10 Eleazar, Daniel, Exploración del federalismo, Barcelona, Hacer-Fundación Rafael Campalans, 1990, pp. 57 et seq.
11 Permissive federalism can be defined as when federal and state governments share power and authority, but the amount of power and authority that corresponds to the states depends on the permission and the permissiveness of the federal government; López Aranguren, Eduardo, "Modelos de relaciones...", cit., note 4, pp. 18 and 19.
12 Centralized federalism can be defined as when state and local powers completely depend on the decisions taken by the central power and states and local powers are considered administrative instruments of the federal power; ibidem, pp. 19 and 20.
13 Peripheral federalism is the opposite of centralized federalism. It can be defined as when federal governing officials invariably need to consult local governing officials about making decisions; ibidem, p. 19.
14 A coactive federalism is when the political system has left off being a system of equal partnership to become a hierarchical system in which the federal power is the one that formulates and decides on policies and this power can impose sanctions on states when they do not cooperate; ibidem, p. 21.
15 Federalism is prefectorial when the federal Congress and court rulings order the states to make decisions without any intention of securing support for the states. In other words, federal orders are not given in exchange for federal subsidies; ibidem, p. 20.
16 Dilulio, John J. Jr. and Kettl, Donald F., The Contract with America, Devolution, and the Administrative Realities of American Federalism, A Report of the Brookings Institution's Center for Public Management, Washington, March 1, 1995, pp. 1-66.
17 Dye, R. Thomas, American Federalism. Competition among Governments, Lexington MA and Toronto, Lexington Books, 1990.
18 Kincaid, John, "The Competitive Challenge to Cooperative Federalism: A Theory of Federal Democracy", in Kenyon, D. A. and Kincaid, J. (eds.), Competition among States and Local Governments. Efficiency and Equity in American Federalism, Washington DC, The Urban Institute Press, 1991.
19 Requejo, Ferran, "Diferencias regionales y federalismo asimétrico", Revista Claves de Razón Práctica, Madrid, No. 59, January-February 1996.
20 Castro Cascajo, José Luis and Álvarez García, Manuel, Constituciones extranjeras contemporáneas, Madrid, Tecnos, 1994.
21 Lucas Verdú, Pablo, Curso de derecho político, Madrid, Tecnos, 1996, pp. 285-292; and Croisat, Maurice, op. cit., note 2.
22 Lucas Verdú, Pablo, op. cit., previous note, p. 292.
23 Schwartz, Bernard, op. cit., note 8. In this book, Schwartz gives an overview of the principle rulings the US courts have made on federalism to highlight the role precedents play in shaping federalism in the United States of America.
24 As to the background of Canadian federalism, see Ruiz Robledo, Agustín, "Canadá, un federalismo casi olvidado", Revista de Estudios Políticos, Madrid, New Epoch, No. 69, July-September 1990, pp. 201-215. There is another current work that presents the constitutional and institutional conflict in Canada by Weaver, Kenth R. (ed.), The Collapse of Canada?, Washington, The Brookings Institution, 1992; as well as Finbow, Robert, "Dependents or Dissidents?, The Atlantic Provinces in Canada's Constitutional Reform Process, 1967-1992", Canadian Journal of Political Science, Canada, Vol. XXVII, No. 3, September 1994, pp. 465-491.
25 Croisat, Maurice, op. cit., note 2, pp. 76 et seq.
26 Finbow, Robert, op. cit., note 24, pp. 465-491.
27 Regarding this kind of federalism, see Sánchez Ferriz, Remedio and García Soriano, María Vicente, Suiza. Sistema político y Constitución, Madrid, Centro de Estudios Políticos y Constitucionales, 2002.
28 Ibidem, pp. 82-93.
29 Lijphart, Arend, Las democracias contemporáneas. Un estudio comparativo, Madrid, Ariel, 1998, pp. 37-50.
30 As to German federalism, see Rovira Alberti, Enoch, Federalismo y cooperación en la República Federal Alemana, Madrid, Centro de Estudios Constitucionales, 1986. In addition to reviewing a related federal system: the case of Austria, in Vernet i Llobet, Jaume, El sistema federal austriaco, Marcial Madrid, Pons-Generalitat de Catalunya, 1997.
31 Rovira Alberti, Enoch, op. cit., note 30, pp. 72 et seq.
32 See Nagel, Klaus-Jürgen, "El federalismo alemán. ¿Más cooperación o nueva asimetría?", Revista de Estudios Políticos, Madrid, Centro de Estudios Políticos y Constitucionales, No. 118, October-December 2002, pp. 65-101.
33 Cárdenas Gracia, Jaime F., Una Constitución para la democracia. Propuestas para un nuevo orden constitucional, Mexico, UNAM, 1996, pp. 218-220.
34 Rovira Alberti, Enoch, op. cit., note 30, p. 119.
35 Cárdenas Gracia, Jaime F., Transición política y reforma constitucional en México, Mexico, UNAM, 1994, pp. 112-120.
36 Ruiz Huerta, Jesús and Muñoz de Bustillos, Rafael, Estado Federal-Estado regional: la financiación de las comunidades autónomas, Salamanca, España, Diputación de Salamanca, 1986.
