Guns and Tobacco. The Effect of Interstate Trade Case Law on the Vertical Division of Powers
| DOI | 10.1177/1023263X0401100402 |
| Published date | 01 December 2004 |
| Date | 01 December 2004 |
| Author | Allard Knook |
| Subject Matter | Article |
Allard Knook∗
11 MJ 4 (2004) 347
Guns and Tobacco. The Effect of Interstate Trade Case Law
on the Vertical Division of Powers
§ 1. Introduction
Can the Council use its power of Article 95 EC, allowing for harmonization of Member
States measures ‘which have as their object the establishment and functioning of the
internal market’,1 to impose on Member States a ban on tobacco advertising? Or the US
Congress its power to regulate interstate commerce2 to prohibit the possession of
firearms near schools? The European Court of Justice and the United States Supreme
Court, respectively, in Tobacco Advertising3 and Lopez4 held that they could not. But
for the Supreme Court, this was the first time in almost 60 years it had declared an act to
be unconstitutional for exceeding the scope of the Commerce Power. Previously in that
period it had allowed the use of this power even when Congress had employed it for
social5 or criminal6 purposes. The Supreme Court in Lopez hence significantly narrowed
what will be referred to in this article as the power’s ‘bandwidth’. Prior to this case, it
allowed for a broad use of the power by the United States Congress, but it intervened in
Lopez, essentially by redefining the power’s ‘fluctuation margins’.
∗ Institute of Constitutional and Administrative Law, University of Utrecht. The author would like to
thank Tom Zwart and Ronald Van Ooik for their comments on earlier drafts.
1. Article 95 EC grants the Council the power to adopt ‘measures for the approximation of the provisions
laid down by law, regulation or administrative action in Member States which have as their object the
establishment and functioning of the internal market.'
2. Article I, section 8, clause 3 of the United States Constitution, known as the commerce clause, provides
that ‘Congress shall have the power to regulate commerce … among the several states’.
3. Case 376/98, Germany v. Parliament and Council [2000] ECR 8419.
4. United States v. Lopez, [1995] 514 US 549, 559.
5. See e.g. Heart of Atlanta Motel v. United States [1964] 379 U.S. 241, Katzenbach v. McClung, [1964]
6. See e.g. Perez v. United States, [1971] 402 U.S. 146.
Guns and Tobacco
348 11 MJ 4 (2004)
Article 28 EC prohibits quantitative restrictions between Member States relating to
trade and measures having an equivalent effect. The Supreme Court has derived from
the Commerce Power a principle similar to Article 28. According to the so-called
dormant commerce clause, state legislation is unconstitutional if it places an undue
burden on interstate commerce.
In widening or narrowing the bandwidth of both Commerce Power and dormant
commerce clause, the Supreme Court has played a vital role in the vertical division of
power in the United States. Unlike their European equivalents, the commerce clause and
dormant commerce clause principle have been at the core of the jurisprudential (and
hence academic) debate on federal-state relations. The commerce clause case law on
both the commerce clause and dormant commerce clause demonstrates that the
‘Supreme Court’ of a composite legal order can play a significant role in the vertical
division of powers. In comparing U.S. case law with that of Articles 28 and 95 EC, this
article will examine whether the European Court of Justice has played a similar role.
Has the European Court of Justice used its interstate commerce case law to influence
the vertical division of powers in the European Union? To answer this question, the case
law on the Commerce Power will be compared with that of Article 95 (section 2) and
the case law on the dormant commerce clause principle with that of Article 28 (section
3).
§ 2. The Bandwidth of Article 95
A. INTRODUCTION
This section will examine whether the European Court of Justice has used its Article 95
case law to influence the vertical division of powers.7 The Commerce Power case law
demonstrates the U.S. Supreme Court clearly has; it, for instance, changed its case law
in 1937 under political pressure from the federal level to allow the implementation of
7. It follows from the wording of Article 95 that it is a lex specialis of Articles 94. Also see R. Van Ooik,
De Keuze der Rechtsgrondslag voor Besluiten van de Europese Unie (with a summary in English),
(Kluwer, 1999), 137-138. It is also a lex specialis of Article 308, as it is settled case law that Article
308 EC may be used as the legal basis only where no other provision of the Treaty gives the
Community institutions the necessary power to adopt legislation. See Case 45/86, Commission v.
Council [1987] ECR 1493, para. 13. Article 95 is a lex generalis of some other Treaty provisions. This
follows from the wording of Article 95 and also has been held consistently by the Court, e.g. in Case
84/94, United Kingdom of Great Britain and Northern Ireland v. Council [1996] ECR 5755, para. 12;
and Case 202/88, France v. Commission [1991] ECR 1223, para. 25. Also see P. Craig and G. de
Burca, EU law, text, cases and materials, (Oxford University Press, 1998), 1119. Before the
introduction of Article 95 (then Article 100A EC), Article 94 (then Article 100) served as the only
legal basis for the harmonization of the common market. It is generally assumed that prior to 1986,
Article 94 was interpreted broadly. See e.g. A. Arnull, ‘Does the Court of Justice have Inherent
Jurisdiction?’ 27 C.M.L. Rev. 684 (1990), 707; and Usher, ‘The gradual widening of European
Community policy on the basis of Articles 100 and 235 of the EEC Treaty’ in J.G. Schwarze and G.
Schermers (eds.), Structure and Dimensions of European Community Policy, (Nomos, 1988), 25.
Allard Knook
11 MJ 4 (2004) 349
the federal New Deal program (§ 2.B.). The modifications in the bandwidth of Article
95 in the case law of three successive political timeframes will be discussed. First, the
case law in the period between the Single European Act and the Treaty of Maastricht
(§ 2.C.); secondly, the case law between the Treaty of Maastricht and the Treaty of
Amsterdam (§ 2.D.), in which a distinction will be made between inner limit and outer
limit case law (§ 2.E.); and thirdly, the most recent cases (§ 2.F.).8 After analysing some
of the differences in the test used by the two Courts (§ 2.G.), the impact of this case law
on the vertical division of powers will be examined (§ 2.H.).
B. THE COMMERCE POWER
Over the course of the United States’ history, the Commerce Power has been the focus
of a significant body of case law. The Court has time and again examined the meaning
of ‘commerce’, ‘among the states’ and ‘to regulate’, respectively, to delineate its
bandwidth.
The first time the Supreme Court had to decide on the scope of the commerce power
was in Gibbons v. Ogden.9 At issue was the constitutionality of a steamboat monopoly
law of the state of New York. Aaron Ogden had acquired a licence based on this
monopoly. Gibbons operated a competing ferry under a license granted by an Act of
Congress. Ogden argued inter alia that since the vessels only carried passengers
between two States, they were not engaged in ‘commerce’ in the constitutional sense,
but in ‘navigation’. Marshall CJ, writing for the court, rejected this argument. He
equated the term ‘commerce’ with intercourse comprehending all phases of business,
including navigation. On the basis of the meaning of ‘among the states’, he argued that
Congress had the authority even to regulate intrastate trade if it had an impact on
interstate activities. Thirdly, he stated that the power ‘to regulate’ knows ‘no limitations,
other than are prescribed in the Constitution’.10 Clearly, Marshall CJ construed a broad
bandwidth of the Commerce Power; Congress had the authority to regulate all phases of
business. The Supreme Court would only intervene if these activities lacked any
(indirect) impact on interstate activities. The difficulty, of course, is how to determine
which activities affect interstate commerce. This required ‘line-drawing and a case-by-
case inquiry’,11 which culminated in a substantial divergence of opinion within the
Marshall Court – as is revealed in its two subsequent commerce clause cases12 – which
8. Cases in these subsections are discussed in chronological rather than in numerical order.
9. [1824] 9 Wheat. (22 U.S.) 1.
10. Gibbons [1819], 196-197.
11. E. Chemerinsky, Constitutional Law, Principles and Policies, (Aspen Law & Business, 1997), 176.
12. Brown v. Maryland [1827] 12 Wheat. (25 U.S.) 419; and Wilson v. Blackbird Creek Marsh Co. [1829]
2 Pet. (27 U.S.) 245. See S. Goldman, Constitutional law, Cases and Essays, (Harper & Row, New
York (etc), 1987), 286.
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