Constitutional Engineering of the American Federal System
Dr. Abdulmohsen Allafi Isweesi Saad
America is considered one of the countries that follows the federal approach. However, before we delve into the depths of the United States’ experience in federal affairs, we must first shed light on the emergence of this (federal) system from a historical perspective , then we will address its federal political institutions, and finally the rulings of the Federal Supreme Court:
A Historical Overview of American Federalism
union was formed in the United States of America in 1776, as a result of the war of secession with England. In 1787, a new constitution was drawn up for the United States. The constitution created a central ( federal) union in what was known as the Philadelphia Conference. The union state had full authority in foreign affairs, and it also had many powers in the internal affairs of the states. This union still exists today through 52 states in America.
The independence treaty was declared between the thirteen American states after their victory over the British colonial forces during the American Revolutionary War. This treaty was one of the national stages that eventually led to the federal union. The most prominent functions of this treaty were:
1- Establishing a treaty body called Congress, consisting of a delegate from each of the thirteen states .
2- Each state maintains its full internal and external independence . .
It is worth noting that the federal central union is the next step after the confederation. Initially, an independent (contractual) union is established, then it ends with a federal central union .
This is exactly what happened in the American experience. The conflict that took place between England and its thirteen colonies resulted in a treaty union , the basis for which was the unification of both the military and diplomatic efforts. Thus, the conference was formed that represented all of these states , and each state was to implement what pertained to it from the union’s decisions within the borders of its territory.
After the new constitution replaced the treaty agreement by which these small states became states under the name (the United States of America), the constitution and its subsequent amendments remained in effect until this moment.
Federal legislative authority in the United States of America
What is stated in Article 1, paragraph 1, of the Legislative Branch of the Constitution of the United States of America is that the legislative authority is vested in Congress, and this Congress consists of two chambers , the Senate and the House of Representatives, and we separate for each of them in following:
First: The Senate:
It consists of 100 members, elected by the state legislatures for six- year terms, with two members representing each state.
very similar to the House of Representatives in its role, but it has fewer committees due to its fewer members than the House of Representatives. Among these committees are ( allocations, budget, Finance, Foreign Relations , The judiciary), and this council is headed by the Vice President.
Given the federal system’s duality of powers, the American federal approach makes the budget, finance, foreign relations , and judiciary matters within the exclusive jurisdiction of the federal authority.
It should be noted here that these committees referred to , which also occupy the Senate of the US Congress, are (17) committees, in addition to mixed committees charged with coordination between the two chambers (the Senate, Representatives) as well as coordinating committees charged with coordinating the administrative apparatus and the policy of Congress.
It is worth noting that Congress has real powers, which are:
- The declared and explicit powers : These are those enshrined in the constitution, and they relate primarily and traditionally to the powers and affairs of the budget and financial matters, in addition to the commercial powers.
- Implicit powers : These are those implied by the Constitution, such as supervising the public defense and ensuring the welfare of the United States.
What is important in this regard, in terms of referring to the true powers of the Senate, is the constitutional guarantee, in that the first is enshrined in the constitution, and the second stems from the constitution. Whenever the powers are derived from the constitution, this is likely to ensure their activation in a way that guarantees rights and protects freedoms, and this is what can be considered an advantage for adopting the federal approach of any country.
The Senate’s power in the US Congress to make treaties and to exercise individual or collective oversight over the appointment of ambassadors and other high-ranking public officials is also clearly noted.
It is also worth noting that the term of membership in the Senate is six years, and every two members of the Council (the Senate) represent a state enjoying the rights and powers granted by the Constitution. This naturally gives the Senate a status that diminishes the status of ministers and representatives. Therefore, the Senate is considered an unparalleled example of the highest councils in countries.
This mechanism of the federal approach in the United States of America, in that legislative authority resides in Congress, which consists of two houses (Representatives, Senate), is the same as that followed in every state, with two houses in each state, one for Representatives and the other for Senate.
There is no doubt that this is considered an advantage of American federalism, which may differ from other federalisms known in the rest of the world.
This reinforces what we said earlier, that federalism is not a single template ready for application in any country , but rather requires certain data (such as contiguity) . Geography, cultural unit , Vastness The federal system may be modified to the extent that it suits the aspirations of the peoples of the countries.
It can be said that this high status enjoyed by the Senate is due to the smaller number of its members than the House of Representatives and the longer term of their election, which provides sufficient time to study the laws.
It is worth noting what is stated in Article I, Section 3 of the Constitution of the United States of America, that the legislature of each state shall choose for it two senators for a term of six years , and each senator shall have one vote . No person shall become a senator unless he has attained to the age of thirty years , and has been a citizen of the United States for nine years , and is an inhabitant of the state for which he was chosen.
Second: House of Representatives:
The House of Representatives differs from the Senate in that the latter represents the states, while the House of Representatives represents the American people as a single entity, and is elected by them on the basis of one representative for every approximately 400,000 voters , and representatives are elected for a term of approximately two years by individual ballot. Mostly single-cycle.
It is worth noting that the House of Representatives represents the population of the Union in general in terms of the actual population equality of the local sovereignties ( states), and the current number of representatives is approximately 435 representatives , who are elected from general electoral districts for a period of two years.
Here, the right of equality of the American people in political participation is clearly evident in the formation of the American Congress of two chambers . If the House of Representatives is to represent the people according to the number of states’ population, which may result in disparity based on the difference in the number of people in each state compared to the other, then this is remedied by the Senate, which has two members from each state, regardless of how large or small its population is.
There is no doubt that this achieves equality and satisfaction in taking into account the population density of this state over that, through the House of Representatives, and then taking into account equality in two members for each state equally in the Senate.
It is also worth noting that Referring to those committees in which members of the House of Representatives participate to carry out their duties, They are:
Committee : decides how to discuss laws and the possibility of amending them .
Committee : which studies the financial requests of the executive authority.
– The Specialized Committee : which approves disbursement requests, with reference to the subcommittees in addition to the main committees , even if the subcommittees overlap with each other. For example, a project in the field of energy may pass through various committees, such as the Public Works and Transportation Committee , the Judiciary, Science and Technology Committee, the Energy Committee , and the Trade Committee . Due to the importance of these committees, the head of each committee is considered an important member of Parliament.
According to the above , it is of utmost importance to define the powers granted to Congress, as stated in Article I, Section 8 of the Constitution of the United States of America.
- Powers granted to Congress:
1. To impose and collect taxes, duties, and imposts , to pay the debts and provide for the common defense and general welfare of the United States. All such duties and imposts shall be uniform throughout the United States .
2. To borrow money on behalf of the United States, to regulate trade with foreign countries, among the various states, and with the Indian tribes, to establish a uniform system of naturalization and uniform laws on the subject of bankruptcy throughout the United States, to mint and print currency, to regulate its value and the value of foreign currencies, and to establish standards of weights and measures.
3- Establishing provisions to punish counterfeiting of US securities and currency.
4 – Establishing post offices and roads, promoting the progress of useful sciences and arts by reserving for limited periods to authors and inventors the absolute right to their writings and discoveries.
5. Establishing courts of lower status than the Supreme Court, defining acts of piracy and felonies committed at sea and crimes against international law and punishing them, declaring wars and authorizing the repulsion of aggression and the seizure of ships and goods, and establishing rules relating to the seizure of spoils on land and at sea.
6 – Establishing armies and securing their expenses, but the financial appropriations allocated for this purpose should not be for a period exceeding two years, forming and maintaining a naval force, and establishing rules for the management and organization of land and naval forces.
7. To make provisions for calling up the militia to execute the laws of the Union, suppress insurrections, and repel invasions , and to make provisions for organizing, arming, and training the militia, and for administering such parts of it as may be employed in the service of the United States , reserving to the states individually the right to appoint officers and the authority to train the militia, according to the system established by Congress.
8. To exercise exclusive legislative power over all matters within a district (not exceeding ten miles square) which may, by cession of particular States and the consent of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the State legislature, and over arsenals, docks, and other buildings necessary.
9. To make all laws which may be necessary and proper for carrying into execution the aforesaid powers and all other powers vested in the government of the States or in any department or officer thereof.
Federal executive authority in the United States of America
According to what is stated in the Constitution of the United States of America in Article (2) Paragraph One, the Executive Branch: “ The executive power shall be vested in a President of the United States of America. The President shall hold his office for a term of four years, and shall be elected together with the Vice President, who shall be chosen for the same term .”
At the state level, the executive authority is held by the state governor, with powers similar to those of the president. He is assisted by a deputy called the acting governor, whose position is similar to that of the vice president of the United States. This governor is elected by direct popular vote, and sometimes voters elect delegates to the state convention, which appoints the governor.
It is worth noting that the President of the Republic (United States of America) is elected by the people, and combines the presidency of the state and the presidency of the government. Therefore, this system is only applied in countries with a republican system, as it is not compatible with the monarchy system.
In addition , the people are the ones who elect the President of the Republic, not the parliament , through general suffrage. Direct, he (the president) is the representative of the nation as head of state and government at the same time.
At the same time, the President chooses the ministers who assist him in implementing his policies and performing his duties. He has the right to dismiss them from their positions and remove them. The ministers are completely subservient to the President of the Republic and implement the general policy that he sets. They are called (secretariat or writers) and they do not enjoy any authority.
It is worth noting that this is due to the nature of the political system in the United States of America, in that it is a presidential system based on the complete separation of powers.
Therefore, the President has executive power, but on the one hand, he does not have the right to dissolve Parliament, and ministers do not have the right to be members of Parliament . The President can direct Parliament’s attention to a particular issue , and he also has the right to propose a draft law for submission to Parliament.
However, Parliament (the authority) The Legislative Council does not have the right to dismiss the President of the Republic or the ministers due to lack of confidence in them or their policies. There is also no such thing as a Council of Ministers or a Prime Minister , and the ministers are not accountable to Parliament. Rather, they are accountable only to the President, who has the right to appoint and dismiss them.
In the context of talking about the executive authority of the United States of America, it is worth noting the apparatus of this authority. In addition to the president, there is the office of the chief executive, which is divided into: Departments, and the White House office, which is occupied by 600 advisors, ministers called ( Secretary of State, numbering 14 ).
The CEO’s office contains :
– Special assistants and advisors , To the President, who keeps him in constant contact with the ministries, Congress, the press and public opinion.
– The Budget Office, which collects the various financial and legislative demands of the executive branches and works hard to put them in the form of an implementable program that Congress can accept. This office studies and reviews various regulations in all branches of the executive authority, just like the British Treasury.
The Security Council attempts to impose a permanent policy on all ministries on matters related to security.
Office of the Chief Executive Office White House Office of Secretaries
(Consultants: 600) ( Secretary UN : 14)
And always subordinate to the president.
It is worth noting the powers enjoyed by the President, which are specified in the Constitution of the United States of America in Article II (Executive Branch), Paragraph Two:
1. The President shall be Commander in Chief of the Army and Navy of the United States , and of the Militia of the several States, when called into the actual service of the United States; he may require the opinion, in writing, of the principal Officer in each of the executive Departments , upon any subject relating to the duties of their respective Offices , and he shall have Power to grant Reprieves and Pardons for Offenses against the United States , except in Cases of Impeachment .
2. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur; and he shall nominate, by and with the advice and consent of the Senate , and appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States , whose appointments are not provided for in the Constitution, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, or in the courts of law, or in the cabinets.
3 – The President has the power to fill all vacancies that may occur during the Senate’s recess , by granting delegations that expire at the end of the next session of the Senate.
Article 2, Section 3, states that “ The President shall from time to time give to the Congress Information of the State of the Union, and recommend to their consideration such Measures as he shall judge expedient; he may, in extraordinary Cases, convene both Houses, or either of them; and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors, other Ministers and Plenipotentiaries; he shall faithfully execute the Laws, and shall Commission all the Officers of the United States . ”
Federal Judicial Authority in the United States of America
III, Section 1 of the Constitution of the United States of America states, ” The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services, a compensation which shall not be diminished during their continuance in office .”
It is worth noting that the judiciary in the United States of America enjoys complete independence in exercising its powers and in monitoring the actions of other government authorities.
However , the judicial system in the United States of America is not without complexity. In America, the courts are divided into three levels: primary, appellate, and cassation. The court of cassation is the Supreme Court in the states . As for the federal state, there are also primary, appellate, and cassation courts. The court of cassation here is the Federal Supreme Court. .
It is worth noting that the President of the United States of America may appoint one of the nine judges of the Federal Supreme Court as Chief Justice. The Chief Justice is considered the second most powerful figure in the United States.
He is above the Vice President of the Republic and the President of the House of Representatives in the rank of honor. The Chief Justice presides over the Senate when it tries the President of the Republic. The President of the Republic takes the constitutional oath before him before assuming official duties.
It is worth noting that the Federal Supreme Court is entrusted with the task of monitoring the constitutionality of laws, and it also plays a political role in addition to its judicial role.
In addition to these appellate courts , the Supreme Court also has the Tax Court, the World Trade Court, the Court of Appeals, and smaller federal and district courts.
It is also worth noting that the process of reviewing the constitutionality of laws is more stringent in those countries that follow the federal approach. When we say that there are courts at the state level that exercise constitutional review with regard to violations of the state’s specific constitution, which in its contents does not violate the general federal constitution , then a federal supreme court examines the constitutionality of those laws related to the general federal constitution, then the review here is exercised on two levels and the content is one as it is included in the general federal constitution to which all states and their apparatuses are subject and it is binding and must be respected.
It is worth noting the powers enjoyed by the US Supreme Court, in that it is responsible for monitoring the constitutionality of laws issued by Congress or state councils, as it is considered the highest constitutional court of the union.
In addition to its jurisdiction to adjudicate disputes between states or between states and the federal government, and to appeal rulings from local courts affiliated with the states as the supreme court of appeal for the federation, and to consider lawsuits filed by individuals or states against the federal executive authority , not to mention its primary role in prosecuting the President of the Republic in the event of high treason, or the commission of a (serious) legal or constitutional violation that conflicts with his jurisdiction and responsibilities defined by the constitution.
As for the Constitution of the United States of America, in its Article Three , the Judicial Branch, Paragraph Two, it defined what the judicial authority of the United States of America includes , as follows:
1. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; all cases affecting ambassadors, other public ministers and consuls; all cases of federal jurisdiction, maritime jurisdiction; controversies between two or more states; or between a state and citizens of another state; or between citizens of different states; or between citizens of the same state claiming title to lands by grants of another state; or between a state and its citizens and a foreign state, citizens of foreign states, or foreign subjects.
2. The Supreme Court shall have original jurisdiction in all cases affecting Ambassadors, other Ministers, Plenipotentiaries , and Consuls, and in those in which a State shall be a Party; and in all the other cases before mentioned, it shall have appellate jurisdiction , both on facts and in law, with such exceptions and regulations as Congress may make.
3. The trial of all crimes, except impeachment cases , shall be held by jury , and such trials shall be held in the state where such crimes shall have been committed; but when such crimes shall not be committed within any state, the trial shall be held at such place or places as the Congress may by law have directed.
- provisions :
Firstly: ( Regarding the duality of powers, the powers of the states on the one hand and the federal government on the other, and in confirmation of the sovereignty of the general federal constitutional system ):
The Supreme Court of the United States of America ruled in the case of Hoke v. United States in 1913 , in which it said: “The duality in our federal system has led to many manifestations of complexity and confusion due to the difference in the scope of jurisdiction of the federal government and the state governments.”
It must not be forgotten that we are one people, and that all powers reserved to the states and those granted to the federal government are intended to be exercised by the governments, either alone or in cooperation, for the general welfare in its material and moral aspects.
It is worth noting in this regard that all federal authorities and local state authorities are subject to the general constitutional system defined by the federal constitution. In the event of any dispute in this regard , the matter is referred to the Supreme Court.
secondly: (On the controls of the relationship between the American federal system and the provisions of international law ):
According to Article (5) of the Vienna Convention on Consular Relations of 1963, one of the most important functions of the consular mission is to defend the interests of the sending state and its nationals in the receiving state , to provide aid and assistance to the nationals of the sending state, to represent the nationals of the sending state or to take the necessary measures to ensure their representation before the courts and competent authorities in the receiving state and to defend their rights and interests.
Article (36) of the same agreement stipulates the right of foreign nationals accused of committing crimes in the countries that have joined this agreement to contact their country’s consuls . This is one of the agreements to which the United States of America has joined.
In 2004, the International Court of Justice issued a ruling in a case involving certain Mexican nationals, in which it concluded that the Vienna Convention on Consular Relations obliges each of the constituent states of the American Federation , and the individual states, to abide by the provisions of this Convention , including the right of foreign nationals to communicate with their country’s consulates. This ruling prompted US President George Bush to issue a memorandum obligating state courts to apply the provisions of the Convention.
In Medalli V. Texas, the US Supreme Court examined whether the US President had the constitutional authority to require states to implement the provisions of the agreement, without the need for the approval of the US Senate .
The Supreme Court upheld the ruling issued by the Texas Court of Criminal Appeals by a majority of (6) votes to (3), written for the majority by Chief Justice (Roberts). The majority opinion rejected the argument put forward by the plaintiff that the ruling issued by the International Court of Justice in the case of the Mexican nationals obliges the state of Texas alone to allow him to contact his consulate.
This is based on the fact that the US President does not have the constitutional authority to enter into enforceable treaties that require the commitment and approval of each individual state. Such treaties, in order for states to comply with them, first require the approval of the Senate. The majority in this ruling made it clear that the US government was subject to the jurisdiction of the International Court of Justice with regard to the international legal obligations of the United States, but the International Court of Justice does not have the jurisdiction to determine the internal federal law binding on states.
Dr. Abdulmohsen Allafi Isweesi Saad
صحيفة الرياض 24 ، موقع إخباري شامل يهتم بتقديم خدمة صحفية متميزة للقارئ، وهدفنا أن نصل لقرائنا الأعزاء بالخبر الأدق والأسرع والحصري بما يليق بقواعد وقيم الأسرة السعودية، لذلك نقدم لكم مجموعة كبيرة من الأخبار المتنوعة داخل الأقسام التالية، الأخبار العالمية و المحلية، الاقتصاد، تكنولوجيا ، فن، أخبار الرياضة، منوعات و سياحة