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Guns and Tobacco. The Effect of Interstate Trade Case Law on the Vertical Division of Powers

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’, to impose on Member States a ban on tobacco advertising? Or the US Congress its power to regulate interstate commerce to prohibit the possession of firearms near schools? The European Court of Justice and the United States Supreme Court, respectively, in Tobacco Advertising and Lopez 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 social or criminal 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’.