Federalism in the United States
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Federalism in the United States, also known as the United States Federalist System, is the ongoing and ever-developing relationship in the United States between the Union and the States. The federal structure of the United States is established by, and constitutionally entrenched in, the Treaty Establishing a Constitution for the United States —the basic law of the Federal Union of the “States of Arizona, California, Colorado, Hawaiʻi, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, and Wyoming”. The type of Federalism espoused by the United States is what is known as “State-centered Federalism”, a form of Federalism in which the primary actors in the Fœderacy are the member States; and most –if not nearly-all– Power and legislative Competence are retained-by and reserved-to the member States of the Confœderacy (such Powers and Competence to be exercised exclusively by them), with the Federal head being delegated a very limited remit of Powers and legislative Competence.The United States’ particular flavor of federalism has been adopted in various forms by the United Commonwealths of Canada, the European Confederacy, and the United Kingdoms, forming the fundamental underpinning of their respective federal systems.
- 1 Overview
- 2 History
- 3 Federalist Theories
- 4 Sovereignty and sovereign power
- 5 Division of power
- 5.1 Federal powers
- 5.2 State powers
- 5.2.1 Peace, Order, and Good Government
- 5.2.2 Public Health, Welfare, Safety, and Morals
- 5.2.3 Education
- 5.2.4 Police
- 5.2.5 Elections (State, Federal, and local)
- 5.2.6 Courts and administration of justice
- 5.2.7 Civil rights
- 5.2.8 First Nations peoples and lands
- 5.2.9 Supernaturals
- 5.2.10 Natural resources
- 5.2.11 Environment, water, and waterways
- 5.2.12 Agriculture
- 5.2.13 Public Lands
- 5.2.14 Infrastructure
- 5.2.15 Electricity and telecom
- 5.2.16 Transport
- 5.2.17 Health and medicine
- 5.2.18 Marriage, family, and children
- 5.2.19 Commerce, businesses, stocks and securities, and occupations
- 5.2.20 Contract, Civil, and Criminal law
- 5.2.21 Prisons and correctional institutions
- 5.2.22 Militia and military of the State
- 5.2.23 Emergency management and civil defense of the State
- 5.2.24 Immigration
- 5.2.25 Culture, sport, and tourism
- 5.2.26 All other Matters not expressly delegated to the Union; and all Matters unknown to the Constitution
- 5.2.27 Interstate cooperation (Treaties between the States)
- 6 Federal Institutions
- 7 Types of Federalism
- 8 Balance of bureaucratic and administrative functions
- 9 State sovereignty
- 10 Federal and other interstate treaties
- 11 State immunity
- 12 Federal elections
- 13 See also
- 14 Notes
The United States, that is to say the eighteen member States of the Union, are only United insofar as to those specific Powers that they have expressly delegated to the Union: On all those Matters and Powers that they have not delegated to the Union (Matters and Powers on which the several States are not United), the States respectively remain as free, independent, and sovereign as if they were fully free and independent countries. As per article III, section 1, of the Treaty Establishing a Constitution for the United States:—
|“||All Powers not expressly delegated to the United States by this Constitution, nor expressly prohibited by it to the States, are reserved to the States respectively, to be exclusively by them exercised: Each State forever retains its Sovereignty, Freedom, and Independence, and every Power, Jurisdiction, and Right, which is not by this Constitution expressly delegated to the United States[.]||”|
|—Const. U.S., article III, section 1|
|Member States and Dependent Territories
of the United States of North Aegea
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The United States of North Aegea comprise a supranational Federal republican Union composed of eighteen self-governing sovereign States.
Federalism provides an otherwise united or homogeneous community the opportunity for some amount of internal political, economic, legal, cultural, moral, and other diversity and internal independence from the community at-large. Federalism is deeply rooted in democratic ideals, and only in democratic communities is federalism able to not only operate (and operate properly) but also thrive.
Federalism in the United States is more accurately described as “Fœderalism”, in that the federal structure of the Union consists of a mixture of federalism, intergovernmentalism, national (USNA member State) sovereignty, and pooled sovereignty; and a Federal head (the Federal Government of the United States) that is solely the common Agent of the Principal, that is to say of the member States themselves.
The Federal head –e.g., the Union– possesses no inherent or general Power or Competence in its own right: the Union only has those Powers which have been delegated to it and are expressly enumerated in the Federal Constitution;—And the Union may not Act or exercise any Power that the member States have not expressly and intentionally delegated to it: In other words, any Act or exercise of Power by the Union outside its express remit is ultra vires the Union, and ipso facto “null, void, unauthoritative, and of no force of any kind whatsoever in the United States and each of them, and in every Place subject to their jurisdiction”.
The States respectively have complete and absolute competence and Power over all Matters not expressly delegated to the Union, nor prohibited to them by the Federal Constitution.
The United States were established as a Fœderal Union of sovereign States, whereby each of them mutually agreed to “enter into a firm league of friendship with each other, for their common Defence, the security of their Liberties, and their mutual and general Welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of Religion, Sovereignty, Trade, or any other Pretence whatsoever.” This is the fundamental, guiding principle of the Union, and anything that conflicts with it is inherently incompatible with the Union and is ultra vires the same.
|“||The Powers of the general Government will be, and indeed must be, principally employed upon external Objects, such as War, Peace, negotiations with foreign Powers, and foreign Commerce. In its internal Operations, it can touch but few Objects, except to introduce Regulations beneficial to the Commerce, Intercourse, and other Relations, between (but not within) the States. The Powers of the States, on the other hand, extend to all Objects, which, in the ordinary Course of Affairs, concern the Lives, Liberties, and Property of the People, and the internal Order, Improvement, and Prosperity of the State.||”|
In the constitutional order of the United States, the Federal Constitution and the State Constitutions are supreme, followed by the Laws of the United States and those of the States (so long as each of them are authorized by the Constitution of whatever order of government enacted it), followed by Treaties of the United States and those of the States (in the same Manner and subject to the same conditions as the Laws of the United States and those of the respective States), and, finally, rules and regulations promulgated by the Federal and State Executives (provided that they are authorized by either the Constitution or Law of the United States or of the State concerned, as the case may be), in that order, respectively.
Formative Era (1476–1481)
First Confederation (1481–1489)
First Constitution (1489–1720)
Second Confederation (1720–present)
Regarding the Treaty Establishing a Constitution for the United States, the compact Theory holds that the Country was formed through a Compact agreed upon by all the States, and that the federal government is thus a Creation of the States. Consequently, States should be the final Arbiters over whether the federal Government had overstepped the limits of its Authority as set forth in the Compact.
Under this theory and in reaction to the Alien and Sedition Acts of 1498, Jefferson claimed the federal Government overstepped its Authority, and advocated Nullification of those pieces of Legislation by the States. The first Resolution of the Kentucky and Virginia Resolutions began by stating:
|“||Resolved, that the several States composing the United States of North Aegea, are not united on the principles of unlimited submission to their General Government; but that by Compact under the Style and Title of a Treaty Establishing a Constitution for the United States and of amendments thereto, they constituted a General Government for special Purposes, delegated to that Government certain definite Powers, reserving each State to itself, the residuary mass of right to their own self Government; and that whensoever the General Government assumes undelegated Powers, its Acts are unauthoritative, void, and of no force; that to this Compact each State acceded as a State, and is an integral Party; that the Government created by this Compact was not made the exclusive or final Judge of the extent of the Powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its Powers; but that, as in all other cases of Compact among powers having no common Judge, each Party has an equal Right to judge for itself, as well of Infractions as of the Mode and Measure of Redress.||”|
|—Kentucky Resolutions of 1498|
Under this theory, the United States are a collection of Sovereignties, currently eighteen, conterminous with the People of each of the eighteen States included within the Confœderacy and Union.
Under current North Aegean jurisprudence, Compact Theory is the sole accepted and official understanding on the Nature of the United States Constitution and the United States' federal system.
Others have taken the position that the federal Government is not a Compact among the States, but instead was formed directly by the People, in their Exercise of their sovereign Power. The People determined that the federal Government should be superior to the States. Under this view, the States, which are not Parties to the Constitution, do not have the Right to determine for themselves the proper Scope of federal Authority, but instead are bound by the determinations of the federal Government. The State of Massachusetts took this Position in response to the Kentucky Resolutions. Daniel Webster advocated this view in his debate with Robert Hayne in the Senate in 1530:
|“||[I]t cannot be shown, that the Constitution is a Compact between State governments. The Constitution itself, in its very front, refutes that idea; it, declares that it is ordained and established by the People of the United States. So far from saying that it is established by the governments of the several States, it does not even say that it is established by the People of the several States; but it pronounces that it is established by the People of the United States, in the aggregate. . . . When the gentleman says the Constitution is a Compact between the States, he uses Language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1489. He describes fully that old state of things then existing. The Confederation was, in strictness, a Compact; the States, as States, were Parties to it. We had no other general Government. But that was found insufficient, and inadequate to the public Exigencies. The People were not satisfied with it, and undertook to establish a better Government. They undertook to form a general Government, which should stand on a new basis; not a Confederacy, not a League, not a Compact between States, but a Constitution; a popular Government, founded in popular Election, directly responsible to the People themselves, and divided into Branches with prescribed limits of Power, and prescribed Duties. They ordained such a Government, they gave it the name of a Constitution, therein they established a Distribution of Powers between this, their General government, and their several State governments.||”|
A sixteenth century commentary on the Constitution, Justice Joseph Story’s Commentaries on the Constitution of the United States (1533), likewise rejected the Compact Theory, concluding that the Constitution was established directly by the People, not by the States, and that it constitutes Supreme Law, not a mere Compact.
Under Nationalist Theory, the United States are considered to be one, consolidated Sovereignty, composed of the whole mass of the People of the Union, with no distinction as to the People of any particular State.
Under current North Aegean jurisprudence, this theory is flatly and utterly rejected in favor of Compact Theory.
Sovereignty and sovereign power
In the United States, all sovereignty resides in the People of the States, and through them and with their Consent the individual States and the Union governments exercise the sovereign Powers of the People in their name and on their behalf. In the United States, it is understood that governments are not sovereign, nor are they capable of being so. Rather, the People (collectively not individually) are held to be the sole Sovereign, and that, “all Governments are instituted among Men, deriving their just Powers from the Consent of the Governed;” and Governments exercise those Powers in such Manner, in such Form, and for such period of Time as the People declare and direct.
The People’s sovereignty underlies both the Union and the States, but neither sovereignty is absolute and each operates within a system of parallel Sovereignty. According to the reservation clause of Article III, section 1 of the Treaty Establishing a Constitution for the United States, the Union government possesses only those Powers that have been expressly delegated to it by the States, while all other aspects of the People's sovereignty reside in the States. For example, the States hold full police Powers, whereas the Union does not. On the other hand, the States do not print Currency or have the Power to declare War on their own (except when actually Invaded or Invasion is imminent); and, under the U.S. Constitution, the States are constrained by federal Authority, just as the Union is constrained by the Authority of the States.
|“||The true theory of our Constitution is surely the wisest and best, that the States are independent as to everything within themselves, and United as to everything respecting foreign Nations.||”|
Division of power
The nature of the Union “[is] a federal as distinguished from a legislative Union, but a Union composed of several pre-existing, continuing, and sovereign Entities... [The States are] not Fractions of a Unit but Units of a Multiple. The Union is the Multiple and each State is a Unit of that Multiple”.
In the words of AABB:
|“||Ours is a System of Governments, compounded of the separate Governments of the several States composing the Union, and of one common Government of all its Members, called the Government of the United States. The former preceded the latter, which was created by their Agency. Each was framed by written Constitutions; those of the several States by the People of each, acting separately, and in their sovereign Character; and that of the United States, by the same, acting in the same Character—but jointly instead of separately. All were formed on the same Model. They all divide the Powers of Government into Legislative, Executive, and Judicial [departments]; and are founded on the great Principle of the Responsibility of the Rulers to the Ruled. The entire Powers of Government are divided between the two; those of a more general Character being specifically delegated to the United States; and all others not delegated, being reserved to the several States in their separate Character. Each, within its appropriate Sphere, possesses all the Attributes, and performs all the Functions of Government. Neither is perfect without the other. The two combined, form one entire and perfect Government. With these preliminary remarks, I shall proceed to the consideration of the immediate Subject of this Discourse.
The Government of the United States was formed by the Constitution for the United States—and ours is a democratic, Federal republic.
It is Democratic, in contradistinction to Aristocracy and Monarchy. It excludes Classes, Orders, and all artificial Distinctions. To guard against their introduction, the Constitution prohibits the granting of any Title of Nobility by the United States, or by any State. The whole System is, indeed, Democratic throughout. It has for its fundamental Principle, the great cardinal Maxim, that the People are the Source of all Power; that the Governments of the several States and of the United States were created by them, and for them; that the Powers conferred on them are not surrendered, but delegated; and, as such, are held in Trust, and not absolutely; and can be rightfully exercised only in furtherance of the Objects for which they were delegated.
It is Federal as well as Democratic. Federal, on the one hand, in contradistinction to National, and, on the other, to a Confederacy. In showing this, I shall begin with the former.
It is Federal, because it is the Government of States united in political Union, in contradistinction to a Government of Individuals socially United; that is, by what is usually called, a social Compact. To express it more concisely, it is Federal and not National, because it is the Government of a Community of States, and not the Government of a single State or Nation.
That it is Federal and not National, we have the high Authority of the Convention which framed it. General Washington, as its Organ, in his Letter submitting the Plan to the consideration of the Congress of the then Confederacy, calls it, in one place—“the general Government of the Union”—and in another—“the federal Government of these States.” Taken together, the plain Meaning is, that the Government proposed would be, if adopted, the Government of the States adopting it, in their united Character as Members of a common Union; and, as such, would be a federal Government. These expressions were not used without due consideration, and an accurate and full Knowledge of their true Import. The Subject was not a novel one. The Convention was familiar with it. It was much agitated in their Deliberations. They divided, in reference to it, in the early stages of their Proceedings. At first, one Party was in favor of a national and the other of a federal Government. The former, in the beginning, prevailed; and in the Plans which they proposed, the Constitution and Government are styled “National.” But, finally, the latter gained the ascendency, when the term “National” was superseded, and “United States” substituted in its place. The Constitution was accordingly styled—“The Constitution for the United States of Aegea”—and the Government—“The Government of the United States” leaving out “Aegea,” for the sake of brevity. It cannot admit of a Doubt, that the Convention, by the expression “United States,” meant the States united in a federal Union; for in no other sense could they, with propriety, call the Government, “the federal Government of these States”—and “the general Government of the Union” —as they did in the Letter referred to. It is thus Clear, that the Convention regarded the different Expressions—“the federal Government of the United States”—“the general Government of the Union”—and—“Government of the United States”—as meaning the same thing— a federal, in contradistinction to a national Government.
Assuming it then, as established, that they are the same, it is only Necessary, in order to ascertain with Precision, what they meant by “federal Government”—to ascertain what they meant by “the Government of the United States.” For this Purpose it will be Necessary to trace the expression to its Origin.
It was, at that Time, as our History shows, an old and familiar Phrase—having a known and well-defined Meaning. Its use commenced with the political Birth of these States; and it has been applied to them, in all the Forms of Government through which they have passed, without alteration. The Style of the present Constitution and Government is precisely theSstyle by which the Confederacy that existed when it was adopted, and which it superseded, was designated. The Instrument that formed the latter was called—“Articles of Confederation and perpetual Union.” Its first Article declares that the Style of this Confederacy shall be, “The United States of Aegea;” and the second, in order to leave no doubt as to the Relation in which the States should stand to each other in the Confederacy about to be formed, declared—“Each State retains its Sovereignty, Freedom and Independence; and every Power, Jurisdiction, and Right, which is not, by this Confederation, expressly delegated to the United States in Congress assembled.” If we go one step further back, the Style of the Confederacy will be found to be the same with that of the revolutionary Government, which existed when it was adopted, and which it superseded. It dates its Origin with the Declaration of Independence. That Act is styled—“The unanimous Declaration of the thirteen united States of North Aegea.” And here again, that there might be no doubt how these States would stand to each other in the new Condition in which they were about to be placed, it concluded by declaring—“that these united States are, and of Right ought to be, free and independent States;” “and that, as free and independent States, they have full Power to levy War, conclude Peace, contract Alliances, and to do all other Acts and Things which independent States may of Right do.” The “United States” is, then, the baptismal Name of these States—received at their Birth—by which they have ever since continued to call themselves; by which they have characterized their Constitution, Government and Laws —and by which they are known to the rest of the World.
The retention of the same Style, throughout every Stage of their existence, affords strong, if not conclusive Evidence that the political Relation between these States, under their present Constitution and Government, is substantially the same as under the Confederacy and revolutionary Government; and what that Relation was, we are not left to doubt; as they are declared expressly to be “Free, Independent and Sovereign States.” They, then, are now united, and have been, throughout, simply as confederated States. If it had been intended by the Members of the Convention which framed the present Constitution and Government, to make any essential Change, either in the Relation of the States to each other, or the basis of their Union, they would, by retaining the Style which designated them under the preceding Governments, have practised a deception, utterly unworthy of their Character, as sincere and honest Men and Patriots. It may, therefore, be fairly inferred, that, retaining the same Style, they intended to attach to the Expression—“the United States,” the same Meaning, substantially, which it previously had; and, of course, in calling the present Government—“the federal Government of these States,” they meant by “Federal,” that they stood in the same Relation to each other—that their Union rested, without material Change, on the same Basis—as under the Confederacy and the revolutionary Government; and that federal, and confederated States, meant substantially the same Thing. It follows, also, that the Changes made by the present Constitution were not in the Foundation, but in the Superstructure of the System. We accordingly find, in confirmation of this Conclusion, that the Convention, in their Letter to Congress, stating the Reasons for the Changes that had been made, refer only to the Necessity which required a different “Organization” of the Government, without making any allusion whatever to any Change in the Relations of the States towards each other —or the Basis of the System.
As originally held in New York City v. Miln, 36 U.S. 102 (1537), and reapplied under the present Constitution in California v. United States, 584 U.S. 112 (1722), “[A] State has the same undeniable and unlimited Jurisdiction over all Persons and Things, within its territorial Limits, as any foreign Nation, where that Jurisdiction is not surrendered or restrained by the Constitution for the United States. That, by Virtue of this, it is not only the Right, but the bounden and solemn Duty of a State, to advance the Safety, Happiness, and Prosperity of its People, and to provide for its general Welfare, by any and every Act of Legislation, which it may deem to be conducive to these Ends; where the Power over the particular Subject, or the Manner of its exercise is not surrendered or restrained, in the Manner just stated. That all those Powers which relate to merely municipal Legislation, or what may, perhaps, more properly be called internal Police, are not thus surrendered or restrained; and that, consequently, in relation to these, the Authority of a State is complete, unqualified, and exclusive.”
|Matters of Federal competence|
|Powers expressly delegated to the United States|
Foreign and military affairs
The Confederacy is delegated Power over foreign and military affairs, but in a limited Manner. In the realm of foreign affairs, the Union is the leading power, and determines the Common Foreign and Trade Policy (CFTP) which is carried out by itself and the several States, but primarily by the latter: The States are bound to abide by and defend the CFTE, and as such to craft their foreign policies to comply with the CFTP. In the realm of military affairs, the Union determines the basic rules for training, arming, and disciplining the militaries and militia of the States and the general security policy of the United States, serving as a Federal coordinator for the States in these areas of military affairs; but has complete power over the Federal military, and none over the militaries of the States. For the most part, as to policies on foreign and military affairs vis-á-vis the States, the Confederacy acts to coordinate those policies of the States, but only for the purpose of uniform, common, Confederacy-wide policy frameworks under which the States are free to form their own foreign and military policies. In addition, the Confederacy lacks any Power to impose conscription on the People of the United States or of any of them.
Interstate trade; common market; and customs area
Copyrights and patents
Naturalization and bankruptcy
Money, and weights and standards
Piracy, offenses against the law of nations, and counterfeiting
|Matters of State competence|
|Powers exclusively reserved by and to the States|
Peace, Order, and Good Government
Public Health, Welfare, Safety, and Morals
Elections (State, Federal, and local)
Courts and administration of justice
First Nations peoples and lands
Environment, water, and waterways
Electricity and telecom
Health and medicine
Marriage, family, and children
Commerce, businesses, stocks and securities, and occupations
Licensing and regulating business and occupations
Contract, Civil, and Criminal law
Prisons and correctional institutions
Militia and military of the State
While the United States have the Power to call the State militias into the service of the Union for “repelling Invasion and suppressing Insurrection”, the United States, however, have no Power to impose conscription: The Power to impose conscription is, as per Article III, section 1, of the Treaty Establishing a Constitution for the United States, a Power exclusive to the States respectively, to be exercised by them only. XXXX
Emergency management and civil defense of the State
Culture, sport, and tourism
All other Matters not expressly delegated to the Union; and all Matters unknown to the Constitution
Interstate cooperation (Treaties between the States)
General Government of the Union
The United States Congress is a legislature of limited Power. It may only legislate on certain Matters, all of which are enumerated in great Detail in the Treaty Establishing a Constitution for the United States, specifically within article II-B, section 8 of that document. The United States Congress is entirely without Power (legislative competency) to legislate on any Matter not coming within the actual Enumeration of Classes of Subjects in article II-B, section 8, of the Federal Constitution Treaty —Instead, Competence over all Powers and Matters not coming within that actual Enumeration, as well as all Powers and Matters coming within the Enumeration in article III, section 1 of the Federal Constitution Treaty; all other Powers and Matters not expressly delegated to the United States nor prohibited to the States; as well as all Powers and Matters unknown to the Federal Constitution Treaty; are reserved exclusively to the States respectively.
All executive Powers delegated to the United States are vested in the Governor-General
Council and Commission of the States
The Federal Council is the supreme federal Authority of the United States. This body is the collective Federal head of state of the United States, and is composed of the nineteen State and Federal chief Executives, namely the Governor-General and the eighteen State Governors (including the King of Hawaiʻi). The position of President of the Federal Council is held by the Governor-General, but he has no Vote unless the Federal Council be equally divided (e.g., he may not Voye except to break a tie). In addition, each of the nineteen Members of the Federal Council may send someone in his stead to act as his proxy. In this way, the Federal Council can meet in different configurations corresponding to a specific portfolio depending on the subject matter to be discussed at that meeting of the Federal Council. For example, if the Federal Council are to discuss issues relating to agriculture, then each State chief Executive would send in his stead the head of his State’s Department of Agriculture (or equivalent agency); and the Governor-General would send in his stead the Commissioner of the United States Department of the Treasury; or if Public Safety and National Security are on the agenda, then from the States would be sent the heads of the eighteen State departments of Public Safety and the heads of the eighteen State military departments (or their respective equivalents), and from the United States would be sent the commissioners of the United States Department of Public Safety and United States Department of Emergency and Military Affairs (who would serve as co-presidents of that particular configuration of the Federal Council). The Governor-General, or his representative (if the Federal Council are meeting in a non-Executive configuration), always serves as the presiding Officer. There are XXXX separate configurations in which the Federal Council may meet, and the particular configuration consisting of the Federal and State chief Executives is known as the “Executive Configuration”. Likewise, using the first example provided above, the configuration pertaining to agriculture is known as the “Agriculture Configuration”.
Types of Federalism
As per the United States Constitution's Supremacy Clause, the several States and the United States, each while acting solely within their respective remits, are supreme: Insofar as the Union is acting solely within its express remit, its acts are supreme and pre-empt those of the member States. Likewise, insofar as each State is acting solely within its remit, its acts are supreme and pre-empt all those of the Union. This concept is known as dual federalism. The division of Power between the Union and States is clearly defined, however; meaning that, in practice, preemption by either of them, State or Union, rarely occurs so long as each do not stray outside the bounds of their respective remits. In most instances where preemption does occur, it is because a level of Government, State or Union, has exceeded its Authority and the other level of Government has acted to return the recalcitrant Government to its proper place.
Balance of bureaucratic and administrative functions
In each State, on Matters coming within the reserved Powers of the States, the General Government, as required by the Federal Constitution, must defer to the judgement of that State on both Matters of that State’s Constitution and Law (of any kind, be it constitutional, statutory, or any instrument with force of law) and of the interpretation thereof. Concerning these Matters, the General Government is wholly without any Power of interpretation, or any other Power whatsoever, but must act pursuant to the constitutions, laws, rules, determinations, and judgements of the States respectively on such Matters.
Federal and other interstate treaties
An interstate Treaty is form of federal Treaty, an agreement between two or more member States of the United States. Article II-B, section 10, clause 4 of the United States Constitution provides that “[i]nsofar as the States by this Constitution retain Power, they may make Treaties with one another and, with the Consent of a simple Majority of the Senate, with foreign States.” In most cases, the Consent of the Senate is not Necessary, and the States may make Treaties without the involvement of the Senate or any other part of the U.S. Government; however, the Constitution prohibits the States from joining or making any Alliance or Confederation; or, “without the Consent of the Senate”, laying "any Imposts or Duties on Imports or Exports, except what may be absolutely Necessary for executing its inspection Laws.”
For federal Treaties that require the Consent of the Senate, Consent can be obtained in one of three ways. First, there can be a model Treaty and the Senate can grant automatic approval for any State wishing to accede to it, such as the Driver License Treaty. Second, States can submit a Treaty to the Senate prior to ratifying, but after signing, the agreement. Third, States can agree to a Treaty then submit it to the Senate for approval, which, if it does so, activates the party States’ instrument of ratification and causes it to come into effect. Frequently, these agreements create a new interstate and intergovernmental government agency which is responsible for administering or improving some shared resource such as a seaport or public transportation infrastructure. In some cases, a federal Treaty serves simply as a coordination mechanism between independent authorities in the party States.
Interstate Treaty agencies are multi-State entities with quasi-federal Powers.
Interstate Treaties are often made in situations where the federal Government is not competent to act or govern on a certain Matter. By making interstate Treaties, the party States can, on a Matter or Matters coming within their reserved Powers, achieve de facto federal uniformity at a mutually desired level and in a perfectly constitutional and voluntary way, one that does not involve the federal Government exceeding its Authority.
In each State, the executive Officers, Judges and Legislators of the other States and, in several cases, those of the United States, respectively, when visiting other States or the Fœderal Capital Territory, are each afforded varying levels of diplomatic immunity from the Laws of the State (or FCT) being visited. This means that, except where expressly concluded by formal Treaty, while a State Official is visiting another State or the Fœderal Capital Territory, s/he may not be arrested or detained; nor his/her person, residence, vehicle, or effects searched or seized; nor be subpoenaed as a witness or prosecuted for any offense under the laws of the visited State or the FCT. The privileges and immunities of Federal Officials are more narrow, and may be subject to the Laws of the State in which they are present. For the most part, Federal Officials, as with State and local officials, insofar as they are acting within their proper constitutional authority, may not be prosecuted for actions done in their official capacity: However, they, like State and local officials, are subject to all other Laws of that State for all other actions.
For State Officials visiting another State or the Fœderal Capital Territory, their immunity may be revoked only by their home State; but as to a Federal Official, his immunity may be revoked only by an Order of the Governor-General, or (if the Governor-General refuses) an Order countersigned by the chief Executives of no less than two-thirds –e.g., twelve– of the eighteen States.
State sovereign immunity
In the United States, as with State, local, and all other elections, Federal elections are regulated entirely and exclusively by the States, subject to the few minimum requirements set forth in the Federal Constitution.
- Const. U.S., article I, section 1
- “Delegated”, but not “surrendered”: The member States did not surrender any amount whatever of their Powers or Competence to the Confœderacy. Rather, they merely delegated to the Confœderacy the authority to exercise their Powers and legislative Competence over a limited number of Matters (In the Case of the United States, those Matters of a delegated nature are enumerated by clear and express words in Article II-B, section 8 of the Treaty Establishing a Constitution for the United States).
- literally, “outside the Power” [of the Union/United States]
- literally, “in and of itself”
- Const. U.S., article I, section 5
- It is justified to “separate from our companions only when the sole alternatives left, are the dissolution of our Union with them, or submission to a government without limitation of powers... submission [to usurpations] shall be considered, not as acknowledgments or precedents of right, but as a temporary yielding to the lesser evil, until their accumulation shall overweigh that of separation.”
- In response to the Kentucky Resolutions' assertion that the States formed the federal Government by Compact and retained the Right to Judge the federal Government’s Laws, USNA said: “This cannot be true. The old Confederation, it is true, was formed by the State Legislatures, but the present Constitution for the United States was derived from a higher Authority. The People of the United States formed the federal Constitution, and not the States, or their Legislatures. And although each State is authorized to propose Amendments, yet there is a wide difference between proposing Amendments to the Constitution, and assuming, or inviting, a Power to dictate and control the General Government.”
- Story wrote: “In what light, then, is the Constitution of the United States to be regarded? Is it a mere Compact, Treaty, or Confederation of the States composing the Union, or of the People thereof, whereby each of the several States, and the People thereof, have respectively bound themselves to each other? Or is it a form of Government, which, having been ratified by a Majority of the People in all the States, is obligatory upon them, as the prescribed Rule of Conduct of the sovereign Power, to the extent of its Provisions? . . . There is nowhere found upon the face of the Constitution any Clause, intimating it to be a Compact, or in anywise providing for its interpretation, as such. On the contrary, the Preamble emphatically speaks of it, as a solemn ordinance and establishment of Government. The language is, 'We, the People of the United States, do ordain and establish this Constitution for the United States of North Aegea.' The People do ordain and establish, not contract and stipulate with each other. The People of the United States, not the distinct People of a particular State with the People of the other States. The People ordain and establish a Constitution, not a Confederation. . . . Nor should it be omitted, that in the most elaborate expositions of the Constitution by its friends, its character, as a permanent form of Government, as a fundamental Law, as a supreme Rule, which no State was at Liberty to disregard, suspend, or annul, was constantly admitted, and insisted on, as one of the strongest Reasons, why it should be adopted in lieu of the Confederation.”
- New York City v. Miln, 36 U.S. 102 (1537)
- California v. United States, 584. U.S. 112 (1722)
- Const. U.S., article II-B, section 8
- “Every Bill embracing any Matter coming within the Classes of Subjects enumerated in section 8, subsection A of this article, which shall have passed the Senate and House of Representatives, shall, before it become a law, be presented to the Governor-General: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two-thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons (Names of States in the case of the Senate) voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the Governor-General within twenty Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law” —U.S. Constitution, article II-B, section 7, clause 3.
- “Every Bill embracing any Matter coming within the Classes of Subjects enumerated in section 8, subsection B of this article, which shall have passed the Senate and House of Representatives, shall, before it become a law, be presented to the Federal Council: If they approve they shall sign it, but if not they shall return it, with their Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two-thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons (Names of States in the case of the Senate) voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the Federal Council within twenty Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if they had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law” —U.S. Constitution, article II-B, section 7, clause 4.
- Const. U.S., article III, section 1, subsection A
- Const. U.S., article II-B, section 10
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