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Federalism Revisited: Constitutional Court Strikes Down New Immigration Act For Formal Reasons

Published online by Cambridge University Press:  06 March 2019

Nina Arndt  and
Rainer Nickel

Extract

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On 18 December 2002, one of the major legislative projects of the Schröder Government during its first term of office from 1998 to 2002 failed when the Federal Constitutional Court delivered its judgement in the Immigration Act case. In a split decision, the Court declared the new Immigration Act, the “Gesetz zur Steuerung und Begrenzung der Zuwanderung“ (Act on the Management and Limitation of Immigration) void for formal reasons: It found that the Act did not receive a valid majority vote in the Bundesrat, the chamber of the 16 German states (Länder) that form the Republic. The Court did not have to deal with any questions related to the content of the Act. It discussed only the constitutionality of the legislative procedure.

Type
Public Law
Information
German Law Journal , Volume 4 , Issue 2 , 01 February 2003 , pp. 71 - 89
Copyright
Copyright © 2003 by German Law Journal GbR 

References

1 These persons are entitled to German citizenship; according to Article 116 (1) of the German constitution (Grundgesetz or Basic Law, BL), they are “Germans within the meaning of the Basic Law” even if they do not have German citizenship. Article 116 (1) reads: “Unless otherwise provided by law, a German within the meaning of this Basic Law is a person who possesses German citizenship or who has been admitted to the territory of the German Reich within the boundaries of December 31, 1937 as a refugee or expellee of German ethnic origin or as the spouse or descendant of such person.” The respective “resettlement act” granted even more persons a right to enter Germany and obtain citizenship. In the 1990's, after the fall of the Soviet Union, hundreds of thousands of persons seeking resettlement entered Germany. They easily outnumbered the number of refugees, but in contrast to the heated discussions about the constitutional right to asylum in the Basic Law, this topic was avoided by all political parties.Google Scholar

2 Available at http://www.bpb.de/zuwanderung/dokumente/suessmuth-Bericht.pdf.Google Scholar

3 Traditionally, “mixed” coalition governments on the state level (i.e. between parties that also form the Federal Government and parties that are part of the opposition on the Federal level) stipulate in their coalition treaties that they abstain from voting when controversial issues are at stake.Google Scholar

4 See, supra, note 3.Google Scholar

5 The President of the Bundesrat is voted for a period of one year, see § 5(1) GOBR. It is usually rotating between the Prime Ministers of the Länder.Google Scholar

6 774th plenary session of 22 March 2002; plenary record 774 to Drs. 157/02, pp. 171 ff.Google Scholar

7 Schönbohm finished his speech with a pompous citation from a Prussian General: ”Ladies and Gentlemen, I cannot decide otherwise. My responsibility for my fatherland forces me to do so. I want to close with the confession of General von der Marwitz, a contemporary of Friedrich the Great, who said: “I chose disgrace where obedience did not do honour” [“Wählte Ungnade, wo Gehorsam keine Ehre brachte.”]. See paragraph 21 of the judgement.Google Scholar

8 Alwin Ziel is Minister for Social Affairs of Brandenburg and was one of the four Brandenburg members of the Bundesrat.Google Scholar

9 Statements noted in brackets in the plenary records are understood as interrupting or heckling statements.Google Scholar

10 This happened in a talk show where Müller was asked to talk about politics and theatre.Google Scholar

11 So far, in the history of the Federal Republic of Germany the Presidents had denied certification to acts passed on to them in six cases, partly for formal, partly for material reasons. For further information, see www.bundespraesident.de/Downloads/ListeUmstrittenerGesetze.pdf.Google Scholar

12 www.bundespraesident.de/Downloads/erklaerung.pdf.Google Scholar

13 Bavaria, Saarland, Saxony and Thuringia.Google Scholar

14 Baden-Württemberg and Hesse.Google Scholar

15 Article 77(1)(1) BL.Google Scholar

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18 Articles 30, 70(1) BL state that the exercise of all state powers, namely the right to legislation, is incumbent on the Länder insofar as the Basic Law does not explicitly confer powers on the Federation. It does so, though, in broad terms, pointing out areas of exclusive federal legislation (esp. Articles 71, 73, 105(1); in areas of exclusive federal legislation, the Federation has sole jurisdiction to legislate), areas of concurrent legislation (Articles 72, 74, 74 a, 105(2); on matters within the concurrent legislative power, the Länder have the right to legislate as long as and to the extend that the Federation has not exercised its legislative powers by enacting a law) and areas of federal framework legislation (Article 75; with framework legislation, the Federation has the power to enact provisions forming a framework for Land legislation). The Immigration Act fell into the scope of Articles 73(No. 3) (freedom of movement, passports, immigration, emigration), 74(1)(No.4) (the law relating to residence and settlement of aliens), No.6 (matters concerning refugees and expellees), No.12 (labor law), Article 75(1) (No.5) (matters relating to the registration of residence or domicile and to identity cards).Google Scholar

19 Fischer-Lescano, Andreas/Spengler, Peter, Colère publique politique im Bundesrat, Kritische Justiz (KJ) 2002, p. 337 at p. 339. For a detailed examination of the legislative and administrative powers of the Federation concerning immigration, see Bothe, Die verfassungsgemäße Aufteilung der Verantwortung für Zuwanderung und Integration auf Bund und Länder und Gemeinden und Folgerungen für ein Organisationsmodell. Rechtsgutachten im Auftrag der unabhängigen Kommission ”Zuwanderung“, www.bmi.bund.de/Downloads/Bothe.pdf.Google Scholar

20 Article 51(1) of the Basic Law. During the constitution-making process 1948/49, the discussions in the Parliamentary Council had focused on the question whether to follow the “Bundesrat principle” as described above, placing the members of the Bundesrat under authority of their home governments, or the “Senate principle”, where the Bundesrat members would have been voted by their home parliaments and thus independent from the governments of the Länder, see Jahrbuch für das öffentliche Recht der Gegenwart, neue Folge, Vol. 1, 1950, pp. 379 et seqq.Google Scholar

21 Article 51(3)(1) of the Basic Law.Google Scholar

22 Article 51(2) BL. Bremen, Hamburg, Mecklenburg-Vorpommern and Saarland are entitled to three votes, Berlin, Bremen, Rhineland-Palatinate, Saxony, Saxony-Anhalt, Schleswig-Holstein and Thuringia to four votes, Hesse to five votes, Baden-Württemberg, Bavaria, Lower Saxony and Northrhine-Westfalia to six votes each.Google Scholar

23 Article 52(3)(1) of the Basic Law. The majority is reached by 35 (out of a total of 69) votes.Google Scholar

24 The norm goes on: ”[…] and only by Members present or their alternates.“.Google Scholar

25 See Gröschner, Rolf, Das Zuwanderungsgesetz im Bundesrat, Juristenzeitung (JZ), 2002, 621 et seqq. with further references; Linke, Tobias, Bundesrat in der Verfassungskrise, Verwaltungsrundschau (VR) 2002, 229 et seqq.; Schenke, Wolf-Rüdiger, Die verfassungswidrige Bundesratsabstimmung, Neue Juristische Wochenschrift (NJW), 2002, 1318 et seqq.; Ipsen, Jörn, Gespaltenes Votum bei Abstimmungen im Bundesrat (Art. 51 Abs. 3 Satz 2 GG), DVBl., 653 et seqq.; Fischer-Lescano, Andreas/Spengler, Peter, Colère publique politique im Bundesrat, KJ, 2002, 337 et seqq.Google Scholar

26 Paragraph 136 of the judgment; also dissenting vote, paragraph 174.Google Scholar

27 Paragraph 137 of the judgment.Google Scholar

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37 See § 32 Satz 1 GOBR.Google Scholar

38 § 32 Satz 2 GOBR.Google Scholar

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40 Para. 166 [emphasis added by the authors].Google Scholar

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47 Para. 176.Google Scholar

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51 Gertrude Stein, Die Welt ist rund/A rose is a rose is, Hamburg 2001 (Ritter).Google Scholar

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53 On 2 February 2003, these Länder hold elections for their state parliaments. Most polls see a clear majority for the CDU or good chances for CDU/FDP coalitions in both states. As a result, Schröder will probably have to deal with a Bundesrat opposition for the rest of his chancellorship.Google Scholar

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55 It is unclear whether there were two or three out of the eight judges dissenting. During his television presentation of the judgement, the Chairman of the Second Senate of the Court, Vice President Professor Hassemer, pointed out that the ruling of the Court does not contain any information about the result of the voting. He argued that the Court did not want to feed the “undue speculations” in the press about Justices not voting along party lines.Google Scholar

56 BVerfGE 8, 104 (120).Google Scholar

57 Bush et al. v. Gore et al. (00-949), 12 December 2000. The judgement can be found at http://supct.law.cornell.edu/supct/index.php Google Scholar

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59 See for example Alexy, Robert, Theorie der Grundrechte, 1986, and Theorie der juristischen Argumentation, 2nd ed., 1991; Simon, Dieter, Die Unabhängigkeit des Richters, 1975.Google Scholar

60 Para. 142.Google Scholar

61 Para. 143.Google Scholar

62 Para. 145.Google Scholar

63 The Court confirmed this right in his judgement; for details, see above under III.Google Scholar

64 The majority opinion interprets this case as a pure “irritation” or misunderstanding within the delegation of Northrhine-Westfalia, see paragraph 146 of the judgment. The dissenting Justices hold a different point of view: They suppose that a disagreement about how the cabinet of Northrhine-Westfalia had decided to vote was responsible for the yes/no vote, see paragraph 175 of the judgment.Google Scholar

65 See Herzog, Roman, Zusammensetzung und Verfahren des Bundesrates, in: Isensee, Josef/Kirchhof, Paul (eds.), Handbuch des Staatsrechts vol. II, 1987, p. 505, 510; Scholz, in: Maunz/Dürig/Herzog/Scholz (eds.), Grundgesetz-Kommentar, vol. III, Article 51 note 16 seq.Google Scholar

66 Para. 149, emphasis added by the authors.Google Scholar

67 Para. 149.Google Scholar

68 Para. 149.Google Scholar

69 It is worth mentioning, though, that Stolpe broke the coalition agreement between SPD and CDU when he consented to the act. A judgment counting the Brandenburg vote as valid could thus have been marked as a reward for Stolpes' “treason”.Google Scholar

70 Para. 174.Google Scholar