2 Colum. J. Eur. L. 313 (1996)
Klaus Lackhoff. Master of European Law (Saarbriicken, Germany), L.L.M. (Iowa); Referendar at the regional court of Hagen, research assistant at the Westfalian-Wilhelms University at Munster, Germany.
I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states. For one in my place sees how often a local policy prevails with those who are not trained to national views and how often action is taken that embodies what the commerce clause was meant to end.
With these words, Justice Holmes characterized the importance of the dormant commerce clause, i.e. the negative implications of the existence of the commerce clause. Similar words could have been used by a member of the European Court of Justice (ECJ) to describe the importance of the EC Treaty’s restrictions on Member States. While the United States and the European Community are quite different with regard to origin and structure, they share the following problem: smaller, incorporated entities attempting to ensure their own advantages at the cost of other members of the “superstructure” (US/EC). This paper asks how far these two legal systems have allowed (member) states to proceed in forming rules which hinder interstate/intra-community commerce. If we assume that a higher number of obstacles for interstate/intra-community commerce corresponds with higher costs, then we also have to ask why the legal systems allow the making of such rules. This leads us to the question of the value judgments underlying the legal systems.
I. RESTRICTIONS ON STATE REGULATIONS IN THE USA
A. The Dormant Commerce Clause
Art. I §8 cl. 3 lays down that “Congress shall have power . . . to regulate commerce . . . among the several states … ” The text of the commerce clause also provides for no overt restraint of state regulations of interstate commerce in the absence of congressional legislation. Nevertheless, already in one of its first landmark cases the Supreme Court mentioned in dicta that the commerce clause has a negative effect on the ability of states to regulate commerce. Although Chief Justice Marshall’s position that the commerce clause gives Congress exclusive power to regulate commerce did not prevail, a majority of the justices subsequently found a negative impact of the commerce clause on the state power to regulate (interstate) commerce. But the existence of the commerce clause’s negative impact was always the object of harsh criticism. Chief Justice Taney, Marshall’s successor, held the view that the commerce clause did not hinder state regulations as long as state actions did not conflict with validly enacted federal regulation. While today the justices primarily disagree on whether the adequate test in applying the dormant commerce clause is or is not a balancing test, scholars recently have argued for the abandonment of the dormant commerce clause.