Table of contents
1. Frame of reference and grounds for comparison
a) The American federalism model
b) The German federalism model
1. Frame of reference and grounds for comparison
Federalism is a widely used form of government. In addition to Germany and the United States, for example, Canada, Argentina and Nigeria are also federally organized. All states have in common to be territorially divided into individual member states. However, there are clear differences in the number, size and competencies of these states, in addition to the degree of federalism.
This paper is intended to show the status of the German federal states in the Federal Council model and the position of the American states in the Senate model. I would like to examine the role the member states play in the two very different concepts and how the individual state interests can be perceived at the federal level. The focus of my paper lies on the following questions: What are the main differences between the federalist model of Germany and the dual federalism of the USA ? How do the federalism designs in the US compared to Germany affect their ability to respond to the COVID 19 Pandemic?
On the basis of a brief historical outline of the origins and later development of federalism in the USA and Germany, an insight into the so different design of the federal principle of the two states is to be granted. I see its importance because “federalism has a historical individuality for every political system at any time, which is reflected in the constitutions of the federal government and the member states.”1
The question of the possibility of the member states exerting influence on federal policy through their federal constitutional organs, the Senate and Federal Council, is the focus of my paper. I will analyze how the federalism designs in Germany and the US affect their ability to respond to the Corona Virus.
Derived from the Latin word "foedus" = alliance, treaty, the term federalism expresses the alliance principle as a structural and organizational maximum. Both states demonstrate this already in their "name" : United States of America and Federal Republic of Germany.2
Both political systems are based on a centuries-old federal tradition, originally conceived as alliances of states, a politically looser form of federalism. The confederation of states is an association of sovereign states founded under international law (above all for foreign and security policy), which retain their full internal and external sovereignty when united.3
A comparison of American and German federalism must first and foremost make clear its standard of comparison. American federalism is often defined as a counter-model to the German model. Therefore, for my analysis, I will use John Stuart Mills’s comparative method.
The dual federalism of the USA allows for more diversity and autonomy than the German commitment to a system of policy integration between the federal government and the states. This confrontation becomes inapplicable when its results are transferred to today's constitutional reality in a hardly weakened form. The policy field-oriented interdependencies between the federal and state levels have emerged in the USA, are less comprehensive and give American federalism a largely segmented character. Nevertheless, there is considerable potential for centralization, the mobilization of which depends crucially on the case law of the Supreme Court. Despite all federal intervention in the competencies of the states, the institutional anchoring of the states in federal policy remains excluded, since intergovernmental relations are hierarchical in nature.
The federal state principle, according to which several independent member states, each with its own competences, unite to form a superordinate overall state4, is an irrevocable basic principle in both constitutions and thus occupies a prominent position. According to Article IV of the US Constitution, the unification or splitting of states is only possible with the consent of the state parliaments and Congress, which are thereby protected from intervention at the state level.
The German equivalent of the "guarantee of continued existence" of the member states has been laid down in Article 79 (3) of the German constitution, after an amendment with regard to the division of the Federation into Länder is not permitted. According to Article 29, the reorganization of the federal territory has to be decided by referendum of the federal states concerned.
a. The American federalism model
The political system of the United States of America is a model for interstate federalism, in which the tasks and responsibilities of the state competences are distributed according to policy areas. Because in this case both the legislation and its implementation or administration for certain policy areas is either the responsibility of the individual states or the federal government, the two levels are decoupled.
The historically rooted strong sovereignty of the individual states was this division of responsibilities, which is also reflected in the 10th Amendment of the American Constitution. Thus, all powers of Congress as a federal legislative body not clearly listed in Article I fall within the competence of the individual states.5
However, the understanding of "federalism as a dynamic system“6 has also left its mark on the political system of the USA, with the result that the scope of the federal government's jurisdiction has been steadily expanded.
This is made possible in particular by the interpretation of the following general clauses in the American Constitution: "general welfare clause", "commerce clause" and "supremacy clause". According to the "general welfare clause", the federal government can enforce taxes and expenditures for the purpose of general welfare and, according to the "commerce clause", also regulate economic and social areas. In addition, the "supremacy clause" gives precedence to federal law over the law of the individual states in cases of conflict between them.7
b. The German federalism model
The concept of the German federal state is exemplary for an intra-state federalism or a so- called network system, in which the state tasks and competences are distributed between the federal and state governments according to types of competence or functional aspects. Legislative competence lies largely with the federal government; the execution of federal laws as well as of their own state laws is the responsibility of the states.8
This results in the need for cooperation because the federal level is closely intertwined with the state level. This functional interaction of federal legislation and state administration is generally anchored in Article 30 of the Basic Law and is concretized by Article 70 of the Basic Law. Compared to Amendment X of the American Constitution, all powers not granted to the legislative body of the Federation fall within the competence of the Länder.
1 Kilper / Lhotta 1996 p. 78
2 see Kilper/ Lhotta 1996 p. 30 ff.
3 see Schubert / Klein 1997 p. 274 f.
4 see Schubert / Klein 1997 p. 54
5 Bill of rights transcript text, no date
6 Kilper / Lhotta p. 65
7 see Jäger / Welz p. 92
8 see Microsoft Encarta Encyclopedia 2000 p. 2