The European Treaties distribute competences among the European Union and its Member States. Some competences are exclusive to the Union; others are shared by the European Union and its Member States; and still others as retained by Member States. This trifurcation of competences often leads to tension.
Similarly, the Tenth Amendment to the United States Constitution states that those powers not expressly delegated to the federal government are given to the states. Although the language of the Tenth Amendment is simple, it too has given rise to significant tension between the federal and state governments.
This paper explores the delegated, shared, and retained competences as well as the federal-state shared powers of America’s Tenth Amendment. It considers landmark cases and identifies areas of tension. Using a comparative law approach, it analyzes strengths and weaknesses in each system, looks at proposed reforms and concludes with recommendations.
America’s founding fathers — in trying to cobble together the several states into an entity capable of speaking with one voice – had to balance the federalists’ desire for a strong, central government with the antifederalists’ desire for autonomous states’ self-rule. Similarly, those seeking to form the European Union had to balance the desire to create a strong and functional central government with the desire to preserve the Member States’ local laws and customs. The resulting systems – in both the European Union and the United States – are often inefficient, ineffective, and unwieldy and give rise to needless tensions and bickering.
Based on a comparative law analysis of European Union competences and American federal-state division of power under the Tenth Amendment, this paper recommends steps to alleviate some of these tensions.