On sovereign bonds and marijuana: Comparing supremacy limits in the US and the EU
| Author | Mohamed Moussa |
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
| DOI | http://doi.org/10.1177/1023263X211048603 |
| Subject Matter | Articles |
On sovereign bonds and
marijuana: Comparing
supremacy limits in the
US and the EU
Mohamed Moussa*
,
**
Abstract
Against the background of the PSPP judgement, the article conducts an under-researched compari-
son of the German Court’s recent judgement with incidents of defiance from American states’
legislatures. Particularly, it highlights the example of marijuana laws in the US where a handful
of states managed to legislate de facto governing norms contrary to the federal ones. The article
then examines the German Court’s last decision on sovereign bonds to compare the underlying
factors that facilitates European judicial defiance with those contributing to occasional state
legislator resistance in the US. Comparison to the highly centralized US shows that defiance of
supremacy cannot be eliminated, but its conducive factors can be controlled to ensure a function-
ing constitutional system. To do so, attention must be paid to popular, fiscal and political factors,
rather than to exclusively legalistic ones.
Keywords
PSPP judgement, supremacy defiance in the US and the EU, safeguards of federalism, inter-judicial
conflict
1. Introduction
The Public Sector Purchase Programme (PSPP) judgement has evoked a storm of critiques as well
as calls for action. The question of supremacy –namely whether the union or Member States is the
ultimate arbiter in cases of constitutional conflict –has taken a new turn. In assessing this recent
*
University of Cambridge, Cambridge, UK
**
Harvard Law School, Cambridge, MA, USA
Corresponding author:
Mohamed Moussa, Faculty of Law, Murray Edwards College, University of Cambridge, Cambridge, UK.
E-mail: mmam4@cam.ac.uk
Article
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(6) 834–855
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X211048603
maastrichtjournal.sagepub.com
development or charting a way for reform, it is imperative to have a nuanced conception that
acknowledges the inherent limits of supremacy in any ‘integrative’federal or, a fortiori, suprana-
tional system.
1
To this end, a comparative analysis of supremacy limits in a well-established fed-
eration such as the US is quite insightful.
Conventional comparative accounts among EU scholars perceive the supremacy struggle as
exclusively European in contradistinction to ‘mature’federations like the US, where resistance to
supremacy has largely disappeared since the end of the Civil War.
2
However, this is only true if
the analysis is confined to a court-centred approach. In the US, resistance to federal supremacy
persists in several fields ranging from immigration, experimental medicine, firearms possession,
marijuana and others.
3
However, this occasional resistance is initiated by state legislators rather
than the judiciary.
There are stark divergences between the US and the EU in terms of kind, degree and frequency of
defying supremacy. However, if one zooms out, a common denominator can be identified: author-
ities of the component states –be it the legislature or the judiciary –attempt to leverage their admin-
istrative, political or economic power to defy supremacy whenever the circumstances are
conducive.
4
As the US’s experience of a ‘mature federation’with its immense centralized power
suggests, defiance cannot be ‘eliminated’but its conducive factors can be ‘reduced’. In seeking
such a reduction, a distinction must be made between factors giving rise to ‘productive and even
needed’supremacy conflicts and those which threaten ‘the system as a whole’.
5
It is from within this context that this article analyses an example from the US that captures the
limits of supremacy and shows how states often manage to create de facto governing norms contrary
to the federal supreme ones or force a fundamental rethinking of the federal laws. I contrast this with
the European limits of supremacy as epitomized by the May 2020 PSPP judgement. While com-
parative analysis could be an end itself, this article has two further purposes. First, by providing
a brief yet nuanced account of the limits of supremacy in the US, it illustrates that a certain
degree of supremacy defiance and ‘normative conflict’is an inescapable ‘fixture’of integrative fed-
eralism.
6
Second, it aims to build the claim that although defiance is couched in legal jargon, it is
facilitated by factual, political, administrative and economic factors. Without duly accounting for
these, harmful forms of defiance are bound to reoccur.
1. Integrative federalism is the one formed by already ‘independent’states which ‘voluntarily’pool their sovereignty
without ‘losing their individual identities.’This is unlike ‘devolutionary federalism’, such as Belgium or India, which
divides the power of a unitary state into smaller subunits; see K. Lenaerts, ‘Constitutionalism and the Many Faces of
Federalism’,38Am. J. Comp. L. (1990), p. 263.
2. E.g. M. Kumm, ‘The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe Before and After the
Constitutional Treaty’,11ELJ (2005), p. 262, 266; Schütze has criticized the prevailing account as ‘euro-centric’and
unhistorical, R. Schütze, European Constitutional Law (2nd edition, CUP, 2016), p. 145. However, even Schütze seems
to have a court-centred focus which uses old examples from the Civil Rights Movement without realising the continuing
sagas of legislatures resisting supremacy in the fields of marijuana, immigration, medical insurance and
others. R. Schütze, ‘“Federalism as Constitutional Pluralism”: Letter from America’, in M. Avbelj and J. Komarek
(eds.), Constitutional Pluralism in the European Union and Beyond (Hart, 2012).
3. E.A. Young, ‘Modern-Day Nullification: Marijuana and the Persistence of Federalism in an Age of Overlapping
Regulatory Jurisdiction’,65Case W Res L Rev (2014), p. 769.
4. For the US perspective, see J. Bulman-Pozen and H.K. Gerken, ‘Uncooperative Federalism’, 118 Yale LJ (2008),
p. 1256.
5. H.K. Gerken and A. Holtzblatt, ‘The Political Safeguards of Horizontal Federalism’, 113 Mich L Rev (2014), p. 107.
6. J. Resnik, ‘Accommodations, Discounts, and Displacement: The Variability of Rights as a Norm of Federalism(s)’,17
Jus Politicum, Revue de Droit Politique (2017), p. 208.
Moussa 835
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