Abstract
Against the background of the PSPP judgement, the article conducts an under-researched comparison 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 functioning constitutional system. To do so, attention must be paid to popular, fiscal and political factors, rather than to exclusively legalistic ones.
Highlights
The Public Sector Purchase Programme (PSPP) judgement has evoked a storm of critiques as well as calls for action
Excessively strong brakes might unduly stifle the progress of the EU’s constitutional vehicle, or its improper timing veer the vehicle off. This is clear in the May 2020 judgement on sovereign bonds, which witnessed an unprecedented escalation from the German Court
As the case studies show, both systems have some form of state defiance, but the details of defiance dynamics in the two experiences are considerably different
Summary
The Public Sector Purchase Programme (PSPP) judgement has evoked a storm of critiques as well as calls for action. If one zooms out, a common denominator can be identified: authorities of the component states – be it the legislature or the judiciary – attempt to leverage their administrative, 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 concludes by drawing insights from the comparison with an emphasis on the German Court’s recent predicament
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