Umpiring the Federation

In one line

A federation needs a court that neither level controls to decide disputes about the boundary, and the six differ in who may start such a case.

In the wording a student can write in an exam: the umpire of a federation is the tribunal empowered to decide disputes about the constitutional distribution of powers between the levels, and the effectiveness of the federal division depends on its independence, on its jurisdiction, and on who has standing to invoke it.

The courts and their jurisdiction

India, article 131. The Supreme Court has, to the exclusion of any other court, original jurisdiction in any dispute between the Government of India and one or more States, between the Government of India and any State on one side and one or more other States on the other, or between two or more States, if and in so far as the dispute involves any question, whether of law or fact, on which the existence or extent of a legal right depends. The proviso excludes disputes arising out of pre-Constitution treaties and agreements with rulers.

Article 143 gives an advisory jurisdiction: the President may refer a question of law or fact of public importance to the Supreme Court, which may report its opinion, and must do so on a reference concerning the excluded pre-Constitution agreements.

Germany, article 93. The Federal Constitutional Court decides disputes concerning the rights and duties of the Federation and the Lander, particularly in the execution of federal law by the Lander and in the exercise of federal oversight; differences of opinion on the compatibility of federal or Land law with the Basic Law, on the application of the Federal Government, a Land government or a quarter of the Members of the Bundestag; and other disputes involving public law between the Federation and the Lander or between different Lander.

Switzerland, article 189. The Federal Supreme Court hears disputes concerning violations of federal law, of international law, of intercantonal law and of cantonal constitutional rights, and disputes between the Confederation and the cantons or between cantons. Article 190 provides that federal acts and international law are binding on it.

Canada. The Supreme Court of Canada, created under section 101 of the Constitution Act 1867, decides federal questions on appeal and on references by the Governor in Council under section 53 of the Supreme Court Act, and provincial courts of appeal on provincial references. Most of the great Canadian federal decisions are references.

United States. Article III section 2 gives the Supreme Court original jurisdiction in cases in which a State is a party, and appellate jurisdiction otherwise; there is no reference procedure and no advisory opinion.