Academic year 2025-2026
The EU and the US Federal orders compared
Prof. Dr. Stanislas Adam
1
,General Purpose of the course
This course aims to shed light on the complex EU integration process that resulted in the EU’s
autonomous legal order, by comparing it with the constitutional order of the United States of
America. Students will get an insight into the key features of federalism and constitutionalism
in both the EU and the USA, based on the analysis of relevant provisions of EU primary law
and the United States’ Constitution (including its most relevant Amendments, i.e. the I st, Vth,
Xth, XIth, XIVth and XVth) and selected opinions of the US Supreme Court and judgments of the
European Court of Justice. The selected areas for that comparison cover issues of both
‘structural/institutional’ and ‘substantive’ constitutionalism, i.e.:
(a) the structural principles of federalism (conferral and primacy/supremacy) and the
distribution of competences between the ‘federal government’/the EU and the federal
states/Member States;
(b) the legal framework of economic integration at federal/EU level, including an in-depth
comparison between the (dormant) Commerce Clause in the US Constitution and the
fundamental freedoms of the internal market in the EU Treaties; that discussion is closely
related to the need for balancing integration with regulatory diversity among the federal
states/Member States,
(c) the role of courts in shaping the tenets of federal constitutionalism (with an insight into
procedural variables such as centralization v. decentralization of judicial review; abstract v.
concrete review; multi-level constitutionalism; (limited) access to the supreme judicial organ(s);
dissenting opinions,…) and related issues of constitutional legitimacy and institutional
balance/separation of powers;
(d) the ongoing challenge faced by the US Supreme Court and the Court of Justice in ensuring
consistency in the integration through the protection of fundamental rights at the ‘federal’ level
whilst taking into account constitutional pluralism in that respect among the federal/Member
States; that latter part of the course aims to shed light however on key differences concerning
the role of the EU and that of the United States in protecting fundamental rights/civil liberties,
which is essential to grasp the distinct nature of the constitutional orders compared – among
the case-studies: same-sex marriage [Coman (C-673/16) compared with Obergefell v.
Hodges, 576 U.S. 644 (2015)]; religious freedom and ritual slaughtering [Centraal Israëlitisch
Consistorie van België e.a., C-336/19, compared with Church of the Lukumi Babalu Aye, Inc.
2
,v. Hialeah, 508 U.S. 520 (1993)]; rights of disabled persons etc… (to be completed with
selected comparators)
(e) issues of constitutional democracy, including participation of citizens to the federal ‘polity’,
individual and collective protection of the political mandate of elected representatives, and the
issue of executive orders/emergency powers of the President v. delegated acts in the EU.
Objectives
The objective for the students is, first, to acquire solid methodological bases in comparative
constitutional law and to understand key legal concepts structuring the EU and US
constitutional orders (internal market, conferral, due process of law, ‘rational
basis/proportionality’, separation of powers, constitutional pluralism (chủ nghĩ đa nguyên hiến
pháp), democratic legitimacy (tính chính đáng dân chủ), etc.). Comparing solutions to similar
constitutional issues does not make much sense without understanding elements of
convergence and of distinction in legal frameworks and conceptual backgrounds. Second, the
comparative analysis aims to shed light on elements of convergence in the challenges faced
by both constitutional orders (maintaining balance in the vertical distribution of competences;
upholding ‘common’ values of the federal entities; ensuring the democratic legitimacy and
accountability of the federal level of governance). Third, comparing the EU constitutional order
with the US model of federalism will also help the students getting a better, more
‘contextualised’ understanding of what makes that constitutional/legal order a sui generis one.
Structure of the course
• Chapter 1. General introduction, structural principles of federalism
(conferred powers and primacy) and federal values
▪ Introduction to the institutional architecture of the European Union and
the United States and their roots in history (importance in history to
grasp the essence of federalism and its modern challenges);
▪ the various branches of Government and the main issues of legitimacy
▪ the core of federal competences in accordance with the principle (valid
under both federal legal orders) of enumerated powers/conferral; we’ll
have a look in that respect to the most remarkable and important
sources of legislative competence in the EU and in the United States
▪ Importance of judicial review
▪ The EU is not a State (Opinion 2/13 + Wightman / Art. 50 TEU)
3
, • Chapter 2. ‘Positive (economic) integration’: the adoption of legislative acts
by the ‘federal’ level of government/the EU to create an economic ‘level-playing
field’ across the territory of the ‘federation’
• Chapter 3. The ‘negative’ (economic) engines of integration in the
European Union and in the United States: this chapter examines the important
role courts have played in both the EU and in the United States to foster
integration even in situations where no specific legislative action has been
undertaken at federal level. The chapter focuses on a comparison between free
movement rights in the EU and the ‘Dormant’ Commerce clause in the United
States.
• Chapter 4. Fundamental rights protection at federal level: Bill of rights in
the US (original and then XIVth amendment; EU citizenship in the context of EU
as a ‘special case’ – dual v. single citizenship; …
• Chapter 5. The role of the ECJ and of the Supreme Court as the ‘supreme’
organs of the judicial branch of government is compared. This part of the
clinic focuses on various subjects, such as:
▪ The structure of legal review (judicial control in legality) in the EU and in
the United States (abstract v. concrete legal review; centralization v.
decentralization of judicial review);
▪ The role of dissenting opinions before the US Supreme Court (to be
compared with the function of Advocates General before the ECJ);
▪ Dialogue between the judicial and political branches of Government for
the purposes of constitutional adjudication.
▪ Political questions doctrine
• Chapter 6. The operation of the federal level of governance as a
constitutional democracy
• There is an important limit to this course, which should be clarified from the outset: this
is not a course aiming at comparing the EU and the US federal legal orders in full (in
terms of substantive law, solutions provided to similar problems). This is therefore not
a course of US Constitutional law or EU institutional law, nor a course examining free
4
The EU and the US Federal orders compared
Prof. Dr. Stanislas Adam
1
,General Purpose of the course
This course aims to shed light on the complex EU integration process that resulted in the EU’s
autonomous legal order, by comparing it with the constitutional order of the United States of
America. Students will get an insight into the key features of federalism and constitutionalism
in both the EU and the USA, based on the analysis of relevant provisions of EU primary law
and the United States’ Constitution (including its most relevant Amendments, i.e. the I st, Vth,
Xth, XIth, XIVth and XVth) and selected opinions of the US Supreme Court and judgments of the
European Court of Justice. The selected areas for that comparison cover issues of both
‘structural/institutional’ and ‘substantive’ constitutionalism, i.e.:
(a) the structural principles of federalism (conferral and primacy/supremacy) and the
distribution of competences between the ‘federal government’/the EU and the federal
states/Member States;
(b) the legal framework of economic integration at federal/EU level, including an in-depth
comparison between the (dormant) Commerce Clause in the US Constitution and the
fundamental freedoms of the internal market in the EU Treaties; that discussion is closely
related to the need for balancing integration with regulatory diversity among the federal
states/Member States,
(c) the role of courts in shaping the tenets of federal constitutionalism (with an insight into
procedural variables such as centralization v. decentralization of judicial review; abstract v.
concrete review; multi-level constitutionalism; (limited) access to the supreme judicial organ(s);
dissenting opinions,…) and related issues of constitutional legitimacy and institutional
balance/separation of powers;
(d) the ongoing challenge faced by the US Supreme Court and the Court of Justice in ensuring
consistency in the integration through the protection of fundamental rights at the ‘federal’ level
whilst taking into account constitutional pluralism in that respect among the federal/Member
States; that latter part of the course aims to shed light however on key differences concerning
the role of the EU and that of the United States in protecting fundamental rights/civil liberties,
which is essential to grasp the distinct nature of the constitutional orders compared – among
the case-studies: same-sex marriage [Coman (C-673/16) compared with Obergefell v.
Hodges, 576 U.S. 644 (2015)]; religious freedom and ritual slaughtering [Centraal Israëlitisch
Consistorie van België e.a., C-336/19, compared with Church of the Lukumi Babalu Aye, Inc.
2
,v. Hialeah, 508 U.S. 520 (1993)]; rights of disabled persons etc… (to be completed with
selected comparators)
(e) issues of constitutional democracy, including participation of citizens to the federal ‘polity’,
individual and collective protection of the political mandate of elected representatives, and the
issue of executive orders/emergency powers of the President v. delegated acts in the EU.
Objectives
The objective for the students is, first, to acquire solid methodological bases in comparative
constitutional law and to understand key legal concepts structuring the EU and US
constitutional orders (internal market, conferral, due process of law, ‘rational
basis/proportionality’, separation of powers, constitutional pluralism (chủ nghĩ đa nguyên hiến
pháp), democratic legitimacy (tính chính đáng dân chủ), etc.). Comparing solutions to similar
constitutional issues does not make much sense without understanding elements of
convergence and of distinction in legal frameworks and conceptual backgrounds. Second, the
comparative analysis aims to shed light on elements of convergence in the challenges faced
by both constitutional orders (maintaining balance in the vertical distribution of competences;
upholding ‘common’ values of the federal entities; ensuring the democratic legitimacy and
accountability of the federal level of governance). Third, comparing the EU constitutional order
with the US model of federalism will also help the students getting a better, more
‘contextualised’ understanding of what makes that constitutional/legal order a sui generis one.
Structure of the course
• Chapter 1. General introduction, structural principles of federalism
(conferred powers and primacy) and federal values
▪ Introduction to the institutional architecture of the European Union and
the United States and their roots in history (importance in history to
grasp the essence of federalism and its modern challenges);
▪ the various branches of Government and the main issues of legitimacy
▪ the core of federal competences in accordance with the principle (valid
under both federal legal orders) of enumerated powers/conferral; we’ll
have a look in that respect to the most remarkable and important
sources of legislative competence in the EU and in the United States
▪ Importance of judicial review
▪ The EU is not a State (Opinion 2/13 + Wightman / Art. 50 TEU)
3
, • Chapter 2. ‘Positive (economic) integration’: the adoption of legislative acts
by the ‘federal’ level of government/the EU to create an economic ‘level-playing
field’ across the territory of the ‘federation’
• Chapter 3. The ‘negative’ (economic) engines of integration in the
European Union and in the United States: this chapter examines the important
role courts have played in both the EU and in the United States to foster
integration even in situations where no specific legislative action has been
undertaken at federal level. The chapter focuses on a comparison between free
movement rights in the EU and the ‘Dormant’ Commerce clause in the United
States.
• Chapter 4. Fundamental rights protection at federal level: Bill of rights in
the US (original and then XIVth amendment; EU citizenship in the context of EU
as a ‘special case’ – dual v. single citizenship; …
• Chapter 5. The role of the ECJ and of the Supreme Court as the ‘supreme’
organs of the judicial branch of government is compared. This part of the
clinic focuses on various subjects, such as:
▪ The structure of legal review (judicial control in legality) in the EU and in
the United States (abstract v. concrete legal review; centralization v.
decentralization of judicial review);
▪ The role of dissenting opinions before the US Supreme Court (to be
compared with the function of Advocates General before the ECJ);
▪ Dialogue between the judicial and political branches of Government for
the purposes of constitutional adjudication.
▪ Political questions doctrine
• Chapter 6. The operation of the federal level of governance as a
constitutional democracy
• There is an important limit to this course, which should be clarified from the outset: this
is not a course aiming at comparing the EU and the US federal legal orders in full (in
terms of substantive law, solutions provided to similar problems). This is therefore not
a course of US Constitutional law or EU institutional law, nor a course examining free
4
