Thread by @hhesterm

Federalism. A legal system that's repeatedly misunderstood. A short thread. I might through in what this means for trade agreements. This might get long. Feel free to yell insults at me in-between to lighten the mood. This is twitter, after all (thread)

Why should you care? All of the countries in green count themselves as federal. So: there's a lot of them.

What's the point of federalism? The question is: how do you build a countries from entities that have their own identities to some extent, that are different - and want to protect that - but still want to be part of something larger.

That problem isn't new. The ideal state of the Greeks might have been the polis (πόλις), but they did know types of federations, amongst them the koina (Κοινά) that became relevant for US discussions.

The Holy Roman Empire was a messy construct of tons of participant states.

But modern federalism takes more from the US. So. WHAT ARE THE BASICS?

The fundamental idea is that both participant entities and the constructed new entity are states.

Both of them get stuff they are in charge of. Competences. Some belong to the federal level, some to the state level.

Now this can be done in the most diverse ways. The US for example used to like the approach of saying: some areas go to the federal level, some to the state level and each level is FULLY in charge of each area - both for passing laws and executing them.

The consequence: you get federal and state agencies (which explains the constant state police FBI fights you get on TV).

Germany tends to split legislative and executive competences. Even where the federal level gets a legislative power, the state (Land, in Germany) generally still gets to execute the laws.

The precise division and type of competences can be complex, but one issue is fundamental: a state's competence is a state's competence. If the federal level passes a law and does not have the competence - that law is void. Period.

This is where the UK decisively parts way. Sovereignty of parliament. Devolution is not protected in that way. In the US, in Germany etc. where the federal legislator meddles in state competences Courts will kill that law.

Generally there's a second aspect to federal countries: the states find themselves represented in the second chamber of the federal legislature. Which can happen in different ways.

In Germany it's the states that actually have representatives, in the US it is two elected senators (it used to be a bit more like in Germany btw).

OK. So a quick summary of what we have until now:

1) TWO level of statehoods. A federal one with government, parliament all the shebang. And a state one with government, parliament all the shebang.

2) Division of competences: the constitution lays down which level does what.

3) Courts will annul stuff if you do not abide by this division of competences.

Now of course this comes with a lot of beautiful complexity. For example: it is the federal constitution that divides the competences. Doesn't that theoretically put the federal level on top? But that's theory. In practice, who cares.

Finances are always another hot-button issue. Which level gets money through what? Can both levels raise income taxes? Or just one? And if only one, how does the other get money? Do richer states pass money on to poorer?

But we want to just focus on one of the interesting issues: foreign affairs. How to deal with that?

Let's do some theoretical games first. Let's say: foreign affairs is 100% federal. Nothing state. Easy to organize. Federal level does everything. But what if it signs a treaty obliging the country to change laws that are part of state competences?

OK. Let's try the other way around: Each level gets foreign affairs powers. But can only sign treaties where it has legislative powers. Excellent for implementation. But partners will find this ... well, difficult.

So reality tends to be complex, here, too. As a partner negotiating with a federal country you'll be interested in two things: a) who negotiates and what can they sign? b) who implements?

The US famously got into trouble regarding consular rights (a treaty it signed, i.e. the federal level signed) and death sentences imposed by states under state law. Turned out the federal level imposed an obligation on the US, but could not force its states to comply.

That is suboptimal. But a consequence of two things: a) in the US it is by and large the federal system that signs international agreements. And b) the federal level can to some extent sign treaties in areas that will then have to be implemented by states.

The consequences in those cases is that the US is responsible for breaching its international obligation, but sadly under its own laws cannot comply.

WHY, you might ask, do countries adopt this complex system. Sovereignty of Parliament is so much easier as a theory. So many fewer conflicts, one power to rule them all. Why the bother?

There's a number of rationales for federal systems. Let's take 'em one by one. 1) Checks and balances. It's a further form of separation of powers. Not letting one entity become all-powerful with the possibility of abuse.

2) Regional identity. Call it leveling up. Thus, if schools for example are a state competence, THEY get to call the shots.

3) Regulatory sandpits. Different states can try different approaches and thereby identify which one works better.

4) Training ground for politicians. In most federal systems, the federal politicians gained executive experience in state governments before they went federal.

5) Diversity. Leveling up again. I confess that when I grew up I was horrified by "we need a politician from upper lower eastern Franconia to compensate for the 2 from Niedersachsen". But...

... it turns out the alternative all too often is: everyone is from the very same university and the diversity candidate has a ship on his/her shoulder because his/her multimillion pound estate is 5 miles further to the North.

OK, I fear I might be coming to the point where I shall leave you all to your well-deserved beer and will turn towards reading the insults, which should by now have trickled in, but before that: a massive caveat.

This is, obviously, a thread. It is not an academically exact footnoted article. If you feel your life is too exciting and you need it to slow down, there's this oeuvre of which critics have admiringly said "the yellow hurts my eyes" mohrsiebeck.com/buch/eigenstae…

Each federal system comes with its own ideas, problems, conflicts, histories and complexities. Some follow very much model ideas of federalism. Others in name only. Some non-federal systems have some surprisingly federal things going on.

That way we all know it'll never get boring. Cheers!