Hostname: page-component-cc8bf7c57-n7qbj Total loading time: 0 Render date: 2024-12-11T23:06:14.342Z Has data issue: false hasContentIssue false
  • English
  • Français

Republication - Separation of Powers in the Federal Republic of Germany

Published online by Cambridge University Press:  06 March 2019

David P. Currie

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

The Federal Republic of Germany celebrated its fortieth birthday in 1989, and the sudden and unexpected accession of the former German Democratic Republic the following year has drawn the world's attention to the newly united nation. This article is the third installment in an effort to explain the basic features of the German constitution.

Type
Memorial: David Currie and German Constitutional Law
Information
German Law Journal , Volume 9 , Issue 12 , 01 December 2008 , pp. 2113 - 2178
Copyright
Copyright © 2008 by German Law Journal GbR 

References

[Editors' Note: This article originally appeared as David P. Currie, Separation of Powers in the Federal Republic of Germany, 41 AMERICAN JOURNAL OF COMPARATIVE LAW 201 (1993). It is republished here with the permission of the editors of the American Journal of Comparative Law and Professor Currie�s family.]Google Scholar

1 See also Currie, David, Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany, 1989 Sup. Ct. Rev. 333 (1989); Currie, David, The Constitution of the Federal Republic of Germany (forthcoming).Google Scholar

2 See Grundgesetz [GG] [Constitution] art. 1–20, 28(1), 93, 100(1) (F.R.G.) [hereafter cited as GG].Google Scholar

3 See supra note 1.Google Scholar

4 For the view that history and the paucity of particular constitutional authorizations strictly limit the permissibility of such direct democratic devices as the initiative or referendum despite the language of Art. 20, see Herzog, Roman, Art. 20, in 2 Grundgesetz Kommentar Para. Nr. 38–45 (Theodor Maunz, Günter Dürig, et al. eds.) [hereafter cited as Maunz/Dürig]. For the contrary argument, see Ekkehart Stein, Art. 20(1-3), in 1 Kommentar zum Grundgesetz fur die Bundesrepublik Deutschland (Reihe Alternativkomrnentare) Para. Nr. 39–40 (Denninger, Erhard et al. eds.) [hereafter cited as AK- GG]. In reaching his conclusion Herzog places no reliance on the use of the term “Republik” in Art. 20(1); the Basic Law is understood to employ that term in opposition to monarchy, not to direct democracy. See Herzog, Art. 20, in 2 Maunz/Dürig, Para. Nr. 5–8.Google Scholar

5 “Alle Staatsgewalt geht vom Volke aus. Sie wird vom Volke in Wahien und Abstimmungen und durch besondere Organe der Gesetzgebung, der voliziehenden Gewalt und der Rechtsprechung ausgeubt.” See Herzog, Art. 20, in 2 Maunz/Dürig, Para. Nr. 37–43.Google Scholar

6 See Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland Para. Nr. (15th ed. 1985) (“eine Frage sachgemä!er Bestimmung und Zuordnung der staatlichen Funktionen”).Google Scholar

7 See id., Para. Nr. 488; cf. Currie, The Distribution of Powers after Bowsher, 1986 Sup. Ct. Rev. 19 (1986).Google Scholar

8 L'esprit des Lois, bk. 11, ch. 6 (1748).Google Scholar

9 For a German version of this argument, see Herzog, Art. 20, in 2 Maunz/Dürig, Para. Nr. 2–12. For the analogous argument in support of federalism, see Currie, Federal Republic of Germany, supra note 1. As we shall see, in Germany federalism significantly complements the horizontal separation of powers.Google Scholar

10 The Länder constitutions likewise follow the parliamentary model, though the Basic Law does not require them to. See Matthias Herdegen, Strukturen und Institute des Verfassungsrechts der Lander, in 4 Handbuch des Staatsrechts 479, Para. Nr. 16–37 (Isensee, Josef & Kirchhof, Paul eds., 1990) [hereafter cited as Handbuch des Staatsrechts].Google Scholar

11 See Grundgesetz [GG] [Constitution] art. 79(3) (F.R.G.); “Amendments of this Basic Law affecting … the basic principles laid down in Article[] … 20 shall be inadmissible.”Google Scholar

12 See Currie, Federal Republic of Germany, supra note 1. Unlike the President of the United States (U.S. Const., Art. I, § 7), the executive in Germany has no general veto power. Laws increasing expenditures or reducing revenues, however, can be adopted only with Cabinet approval. See Grundgesetz [GG] [Constitution] art. 113 (F.R.G.). The theory is that neither the legislature nor the executive can be trusted where the public's money is concerned; each branch therefore acts as a check on the other. See Theodor Maunz, Art. 113, in 4 Maunz/Dürig, Para. Nr.1; Kisker, Gunter, Staatshaushalt, in 4 Handbuch des Staatsrechts, Para. Nr. 35, 48–51. In addition, legislative appropriations are interpreted only to authorize expenditures, not to require them. Id., Para. Nr. 28, 52. Contrast Train v. City of New York, 420 U.S. 35 (1975). For an acerbic statement of the view that Art. 113 was doomed by political realities to be the dead letter it has apparently become, see Heiko Faber, Art. 113, in 2 AK- GG, Para. Nr. 1–4.Google Scholar

13 Grundgesetz [GG] [Constitution] art. 38(1) (F.R.G.). In a series of significant decisions the Constitutional Court has done a good deal to ensure the directness as well as the equality of elections in support of the democratic principle. On the question of directness see BVerfGE 3, 45 (1953) (striking down a provision authorizing political parties to name substitutes for candidates who had withdrawn after election); BVerfGE 7, 77 (1957) (striking down a provision permitting parties to change the order in which candidates appeared on the electoral list in a similar situation). On equality, see the decisions cited in Currie, Lochner Abroad, supra note 1, at 367 n. 272.Google Scholar

14 See Grundgesetz [GG] [Constitution] art. 76(1) (F.R.G.): “Bills shall be introduced in the Bundestag by the Federal Government [Bundesregierung] or by members of the Bundestag or by the Bundesrat.” This right may be subjected to reasonable procedural regulations but not substantively limited, even by the Bundestag itself. BVerfGE 1, 144 (1952). The length of speeches by individual members, however, may be limited in the interest of avoiding paralysis. BVerfGE 10, 4 (1959).Google Scholar

15 Grundgesetz [GG] [Constitution] art. 44(1) (F.R.G.). The Constitutional Court has confirmed that this provision implicitly gives the same minority the right to control the agenda of the investigating committee. BVerfGE 49, 70 (79-88) (1978). The principle of full and equal membership implicit in the election provisions has been said to require in general that parties be represented on committees in proportion to their strength, but in one significant recent decision the Court held over two dissents that the overriding need for confidentiality justified creation of a five-member commission to consider the budget of secret service agencies even though none of its members represented the unorthodox Green Party. BVerfGE 70, 324 (362-66) (1986). This understandable limitation must be narrowly confined if it is not to impair the principle of representative government. See BVerfGE 80, 188 (1989), holding that Art. 38(1) of the Basic Law forbade the exclusion of a representative from all committees simply because he was not a member of any political party. BVerfGE 84, 304 (1991). Cf. Powell v. McCormack, 395 U.S. 486 (1969); Bond v. Floyd, 385 U.S. 116 (1966). These and other U.S. decisions cited in this article are discussed in David Currie, The Constitution in the Supreme Court: The First Hundred Years (1985) and David Currie, The Second Century (1990) [hereafter cited as The First Hundred Years and The Second Century respectively].Google Scholar

16 This requirement also applies to local governments (Kreise und Gemeinden), except that in Gemeinden the citizens themselves may act as a legislative assembly. Id. Google Scholar

17 See generally Maunz, Art. 40, in 2 Maunz/Dürig, Para. Nr. 1–2; Schneider, Hans-Peter, Art. 40, in 2 AK- GG, Para. Nr. 2.Google Scholar

18 Grundgesetz [GG] [Constitution] art. 39(1) (F.R.G.).Google Scholar

19 Grundgesetz [GG] [Constitution] art. 48(3) (F.R.G.). The adequacy of their compensation is subject to review by the Constitutional Court. See BVerfGE 40, 296 (1975); BVerfGE 4, 144 (1955) (holding that individuals who are members of both federal and state legislatures need not be paid twice); BVerfGE 32, 157 (1971) (finding the retirement pension prescribed by law sufficient to satisfy Art. 48(3)); Maunz, Art. 48, in 3 Maunz/Dürig, Para. Nr. 14–16. For criticism of the decisions, see Schneider, Art. 38, in 2 AK-GG, Para. Nr. 28; and Schneider, Art. 48, in 2 AK-GG Para. Nr. 11–12 (arguing that the transformation of legislators into salaried officials, while freeing them from reliance on external sources of income, has made them dependent upon the political parties that determine their chances for reelection). Cf. U.S. Const. art. 1, § 6 (“a Compensation… to be ascertained by Law”).Google Scholar

20 Grundgesetz [GG] [Constitution] art. 38(1) (F.R.G.). See generally Maunz, Art. 38, in 3 Maunz/Dürig, Para. Nr. 9–16. For a glimpse into the ticklish relationship between this provision and Art. 21, which guarantees political parties a significant role in the political process, see Hesse, supra note 6, Para. Nr. 598–603. As in the United States, the party system significantly limits the practical significance of the separation of powers in Germany.Google Scholar

21 Grundgesetz [GG] [Constitution] art. 46(1) (F.R.G.); see Maunz, Art. 46, in 3 Maunz/Dürig, Para. Nr. 6. There is an exception for defamation. See also BVerfGE 60, 374 (1982) (holding that a representative might be subjected to censure (“Ruge”) outside the Bundestag because the sanction had no legal effect). Cf. U.S. Const. art. I, § 6: “[F]or any Speech or Debate in either House, they shall not be questioned in any other Place.”Google Scholar

22 Grundgesetz [GG] [Constitution] art. 46(2)-(4) (F.R.G.); see Maunz, Art. 46, in 3 Maunz/ Dürig, Para. Nr. 26. Prior consent is not required if the representative is apprehended “in the commission of the offense or in the course of the following day,” but even then the proceeding must be suspended at Bundestag request. Cf. the narrower protection afforded to members of the U.S. Congress from arrest “in all Cases, except Treason, Felony and Breach of the Peace,” U.S. Const. art. I, § 6.Google Scholar

23 Grundgesetz [GG] [Constitution] art. 47 (F.R.G.); see Maunz, Art. 47, in 3 Maunz/ Dürig, Para. Nr. 2.Google Scholar

24 Grundgesetz [GG] [Constitution] art. 137(1) (F.R.G.). The implementing statute effectively so provides. See Herzog, Art. 20, in 2 Maunz/Dürig, Para. Nr. 45, arguing that repeal of this provision would be inconsistent with the general separation of powers requirement of Art. 20(2). Although the text of the Basic Law speaks broadly of restrictions on “[t]he right to stand for election” (see Maunz, Art. 137, in 4 Maunz/ Dürig, Para. Nr. 15), the Constitutional Court has held that Art. 137 authorizes only incompatibility and not ineligibility provisions; since legislative autonomy is endangered only when an individual holds executive and legislative offices at the same time, the civil servant is permitted to serve once he has resigned his administrative position. BVerfGE 57, 43 (62, 66–69) (1981). See also BVerfGE 58, 177 (1981) (finding no incompatibility in simultaneous service in county and city government). Moreover, the German system being a parliamentary one, there is no comparable limitation with regard to cabinet ministers. See Grundgesetz [GG] [Constitution] arts. 63, 64 (F.R.G.); Herzog, Art. 20, in Maunz/Dürig, Para. Nr. 46. The analogous U.S. provision is broader and leaves nothing to legislative discretion: “[No] person holding any office under the United States shall be a member of either House during his continuance in office.” U.S. Const. art. I, § 6. The Basic Law contains no equivalent of the further provision of this section that serves the distinct purpose of preventing legislators from lining their own pockets by appointment to offices created or made more lucrative during their tenure.Google Scholar

25 Grundgesetz [GG] [Constitution] art. 39(3) (F.R.G.). The preceding paragraph requires the Bundestag to meet initially within 30 days after its election. Cf. U.S. Const. amdt. 20, § 2 (requiring Congress to meet at least once a year and prescribing a presumptive date); art. I, § 6 (limiting the power of one House to adjourn without consent of the other); art. 2, § 3 (empowering the President to convene Congress “on extraordinary occasions” and to determine the date of adjournment if the two Houses cannot agree).Google Scholar

26 Grundgesetz [GG] [Constitution] art. 40(1) (F.R.G.). Cf. U.S. Const. art. I, § 2, 3.Google Scholar

27 Grundgesetz [GG] [Constitution] art. 40(1) (F.R.G.). See BVerfGE 44, 308 (1977) (upholding a rule permitting action without the normal quorum in the absence of objection). Cf. U.S. Const. art. I, § 5. The current Bundestag rules (“Geschäftsordnung”) can be found in Art. 38, in 2 Maunz/Dürig, Para. Nr. 5.Google Scholar

28 See Grundgesetz [GG] [Constitution] art. 40(2) (F.R.G.), which vests “proprietary and police powers” in the presiding officer of the Bundestag and forbids searches and seizures on its premises without her consent.Google Scholar

29 Grundgesetz [GG] [Constitution] art. 41(1)-(2) (F.R.G.). This authority extends also to the question whether a member has lost his seat. See BVerfGE 5, 2 (1956) (upholding the Bundestag's decision to exclude a representative who had moved to East Berlin before it was a part of the Federal Republic). There is an obvious tension here between the principles of legislative independence and of democratic legitimacy. Contrast U.S. Const. art. I, § 5 (“Each House shall be the judge of the elections, returns and qualifications of its own members”); Roudebush v. Hartke, 405 U.S. 15 (1972) (Senate decision respecting election not subject to judicial review); Powell v. McCormack, 395 U.S. 486 (1969) (qualifications subject to House determination limited to those listed in the Constitution).Google Scholar

30 Grundgesetz [GG] [Constitution] art. 44(1) (F.R.G.). See BVerfGE 67, 100 (1967); BVerfGE 76, 363 (1987); BVerfGE 77, 1 (1987); Schneider, Art. 44, in 2 AK- GG, Para. Nr. 2–3. Cf. Kilbourn v. Thompson, 103 U.S. 168 (1881); McGrain v. Daugherty, 273 U.S. 135 (1927). The investigative power serves also as an important check on executive abuse, see n.166 infra and accompanying text. In light of the experience in this country (cf. Watkins v. United States, 354 U.S. 178 (1957)) there might be cause to fear that in prescribing that “the decisions of investigative committees are not subject to judicial scrutiny.” Art. 44(4) excessively subordinated individual rights to parliamentary autonomy; but fortunately the Constitutional Court has not taken this language at face value. See cases cited supra; Maunz, Art. 44, in 3 Maunz/Dürig, Para. Nr. 63–65 (explaining that this provision insulates only investigative findings, not sanctions against witnesses, from judicial review).Google Scholar

31 Verfassung des Deutschen Reichs vom 11. Aug. 1919, RGB1 S.1383 [hereafter cited as WRV], Art. 25.Google Scholar

32 See BVerfGE 62, 1 (41) (1983) (noting that not one Reichstag during the entire Weimar period was permitted to serve out its full constitutional term).Google Scholar

33 The Chancellor is the head of the Cabinet (Bundesregierung); the President's duties, except in this instance, are largely ceremonial. See text at nn.138-59 infra. His discretion with regard to dissolution under Art. 68 was confirmed by the Constitutional Court as an important check on improvident action: “This provision permits dissolution only when three supreme constitutional organs of government— the Chancellor, the Parliament, and the President—have each made their own independent political decision.” BVerfGE 62, 1 (35) (1983). See also id. at 50 (adding that the President was also obliged to determine—with appropriate deference to the Chancellor's decision—whether the conditions of Art. 68 itself were met).Google Scholar

34 See supra note 20; BVerfGE 62, 1 (37-38) (1983).Google Scholar

35 See infra notes 161–64.Google Scholar

36 See BVerfGE 62, 1 (4-9) (1983).Google Scholar

37 A constitutional amendment would have required a two-thirds vote of both Bundestag and Bundesrat under Art. 79(2) and was subject to the objection that the Constitution should not be lightly amended. The Social Democrats, who also wanted accelerated elections, argued that Kohl should resign in order to trigger Article 63(4)'s provision permitting dissolution if parliament is unable to agree on a new Chancellor; the coalition responded that this route would require delay as the members went through repeated ballots in an effort not to endorse his successor. See BVerfGE 62, 1 (11, 14–18) (1983).Google Scholar

38 See id. at 9–19.Google Scholar

39 See id. at 38 (arguing in effect that on its face “lack of confidence” meant only the unwillingness of a majority of the members to vote for the Chancellor or his program).Google Scholar

40 Id. at 40–44. There is much in the legislative history, as reported in Justice Rinck's dissenting opinion, id. at 86–102, to support his conclusion that Art. 68(1) was designed for the case in which a majority of the Bundestag was opposed to the Chancellor but unable to agree on his successor. See, e.g., the official committee explanation to the Parliamentary Council (id. at 101): “The President's right of dissolution under Article 68 of the Basic Law is—apart from the right of emergency legislation [discussed infra note 160]—the principal weapon of the Government against an obstructive and destructive parliamentary majority.” The Court, which took a somewhat less exacting position, found the record less plain and added that in any event legislative history was not entitled to much weight. Id. at 44–47.Google Scholar

41 See id. at 112–16 (Rottmann, J., dissenting) (adding that the coalition had agreed upon new elections before putting together its Government and that two days after the Chancellor had put the question of confidence the Bundestag had approved his budget by the largest majority on any controversial issue in thirteen years): “The parliamentary stability of the Government was completely beyond question.” See also id., at 108 (Rinck, J., dissenting).Google Scholar

42 Id. at 18. Justice Rottmann suggested in dissent that the best evidence of a Government's lack of actual support would be its inability to obtain passage of substantive legislation. See id. at 110.Google Scholar

43 See id. at 13 (Chancellor Kohl) (“The coalition parties… are basically prepared to work together again after the election”), 15 (FDP leader Genscher) (“The [Government's] mandate shall be renewed, but only after the voters have spoken”). The Chancellor proudly insisted that he had never made a secret of his motives; to have resigned in order to precipitate elections under Art. 63(4), as the opposition urged, would have been in his view “manipulative.” See id. at 13–14.Google Scholar

44 See id. at 67–69 (Zeidler, J., concurring) (arguing that there was no popular mandate for the present Government because the people had voted for Schmidt, not for Kohl). Justice Zeidler's opinion contains an interesting argument for changing constitutional interpretation in the light of changed circumstances. See also Herzog, Art. 68, in 3 Maunz/Dürig, Para. Nr. 76–77.Google Scholar

45 BVerfGE 62, 1 (43) (1983).Google Scholar

46 Id. at 51–62. For documentation of the view that none of the events recited by the majority had significantly affected the FDP's willingness or ability to continue the coalition, see id. at 115–16 (Rottmann, J., dissenting).Google Scholar

47 Id. at 50. See Schneider, Art. 68, in 2 AK - GG, Para. Nr. 6 (applauding this exercise of judicial restraint and finding in it the seeds of a political-question doctrine).Google Scholar

48 BVerfGE 62, 1 (62-63) (1983). See Herzog, Art. 68, in 3 Maunz/Dürig, Para. Nr. 78–84 (endorsing both the decision and the earlier suggestion of the Enquěte-Kommission that the Basic Law be amended to permit the Bundestag to dissolve itself for any reason by a 2/3 vote). The Kommission was a panel of politicians and experts established by the Bundestag to consider possible constitutional amendments. For its recommendation, see Beratungen und Empfehlungen zur Verfassungsreform (Schlußbericht der Enquěte-Kommission Verfassungsreform des Deutschen Bundestages) [hereafter cited as Schlußbericht der Enquete-Kommission], Zur Sache 3/76, pt. 1, 92, 102–07 (1976); for a dissenting view, see Schneider, Art. 68, in 2 AK-GG, Para. Nr. 17.Google Scholar

49 See, e.g., Korematsu v. United States, 323 U.S. 214 (1944); Brown v. Board of Education (II), 349 U.S. 294 (1955); compare Watkins v. United States, 354 U.S. 178 (1957) and Barenblatt v. United States, 360 U.S. 109 (1959).Google Scholar

50 See, e.g., Hans-Peter Schneider, Die Gesetzmä!igkeit der Rechtsprechung, 1975 Die öffentliche Verwaltung [DöV] 443, 448.Google Scholar

51 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (opinions of Frankfurter, Jackson, Burton, and Clark). In the United States this conclusion is strengthened by Art. II, § 3, which requires the President to “take care that the laws be faithfully executed,” and by Art. VI, which makes statutes the “supreme law of the land.” See Currie, The Distribution of Powers After Bowsher, 1986 Sup. Ct. Rev. 19, 24.Google Scholar

52 See id. at 21–23; Ossenbühl, Fritz, Vorrang und Vorbehalt des Gesetzes, 3 Handbuch des Staatsrechts 315, Para. Nr. 1–3, tracing the German principle to democracy and the rule of law.Google Scholar

53 BVerfGE 34, 269 (1973).Google Scholar

54 Bundesgesetzbuch (BGB), § 253: “Wegen eines Schadens, der nicht Vermögensschaden ist, kann Entschädigung in Geld nur in den durch das Gesetz bestimmten Fallen gefordert werden.”Google Scholar

55 For similar assessments by German commentators, see Volker Krey, Rechtsfindung contra legem als Verfassungsproblem (I), 1978 Juristenzeitung [JZ] 361, 362 n. 14, and authorities cited.Google Scholar

56 BVerfGE 34, 269 (287) (1973).Google Scholar

57 “Einem hiernach moglichen Konflikt der Norm mit den materiellen Gerechtigkeitsvorstellungen einer gewandelten Gesellschaft kann sich der Richter nicht mit dem Hinweis auf den unveränderten Gesetzeswortlaut entziehen; er ist zu freier Handhabung der Rechtsnormen gezwungen, wenn er nicht sein Aufgabe, ‘Recht’ zu sprechen, verfehlen will.” Id. at 289.Google Scholar

58 See, e.g., Krey, supra note 55 (III), at 465; Schneider, supra note 50, at 445 (“most questionable extension of judicial decisionmaking authority,”devaluation of the obligation to follow the law,”first step toward ‘unrestrained interpretation'”). But see Kübler, Friedrich, 28 JZ 667, 667 (1973) (warning that a contrary decision would have turned every alleged misinterpretation of the BGB into a question for the Constitutional Court).Google Scholar

59 See Ossenbühl, Fritz, Gesetz und Recht—Die Rechtsquellen im demokratischen Rechtsstaat, in 3 Handbuch des Staatsrechts 281, Para. Nr. 4–13. “Gesetzgebung” (lawmaking) is the term the Basic Law employs to describe the legislative process. See, e.g., Grundgesetz [GG] [Constitution] arts. 70–77 (F.R.G.). See also Grundgesetz [GG] [Constitution] art. Art. 78 (F.R.G.) (describing the processes by which a statute (“Gesetz”) passed by the Bundestag becomes law). On the other hand, the reference to “Gesetz” in Art. 97's provision that judges are subject only to law (“nur dem Gesetz unterworfen”) is widely understood to refer to the entire corpus of positive law. See Ossenbühl, id. at Para. Nr. 15; Krey, supra note 55, at 465.Google Scholar

60 The English version of the Basic Law published by the Press and Information Office of the German Federal Government confidently translates “Gesetz und Recht” as “law and justice,” thus glossing over the troublesome ambiguity of the original, as any translation would.Google Scholar

61 Indeed it has been doubted whether the inclusion of “Recht” was meant to make judicial precedents binding at all. See Krey, supra note 55, at 464.Google Scholar

62 See Krey, supra note 55, at 363–64, 465–66. Cf. Loan Ass'n v, Topeka, 87 U.S. 655 (1875). For the argument that fundamentally unjust laws that violate none of the other provisions of the Basic Law must be rare indeed, see Herzog, Art. 20, in 2 Maunz/Dürig, Para. Nr. 49–54. Ossenbühl, supra note 59, at Para. Nr. 18, views the reference to “Recht” as a reminder of past injustice (“Unrecht”) directed essentially to the law-makers.Google Scholar

63 See the authorities cited Krey, supra note 55, at 364.Google Scholar

64 See 1 Jahrbuch des öffentlichen Rechts [JöR] (N.F.) 1959–99 (1951). After omission for stylistic reasons of references to the rule of law (“Herrschaft des…Gesetzes”) and to the requirement (redundant in light of Art. 3) that the laws themselves be equal, the provision read: “Rechtsprechung und Verwaltung stehen unter dem Gesetz.” Id. at 197.Google Scholar

65 Id. at 200 (Delegate Dehler) (“zur besseren Kennzeichnung der Rechtsstaatlichkeit als der Grundlage des Grundgesetzes”).Google Scholar

66 Id. (Delegate von Mangoldt) (“die Gesetze anzuwenden und auszulegen”).Google Scholar

67 For arguments on the latter basis, see Krey, supra note 55, at 466–67. Such a conclusion would also create an irreconcilable conflict between Art. 20(3) and Art. 97(1), which says nothing about “Recht” and flatly declares the judges “subject to law.” See supra note 59; Krey, supra note 55, at 465–66.Google Scholar

68 See BVerfGE 34, 269 (290) (1973): “Damit wurde eme Lücke im Blick auf die Sanktionen, die bei einer Verletzung dieses Persönlichkeitsrechts zu verhängen waren, sichtbar. …” See also BVerfGE 82, 6 (11-15) (1990) (applying the principles laid down in Soraya to uphold the extension by analogy to unmarried couples of a surviving partner's right to assume the other's lease after death, although the governing statute spoke only of spouses).Google Scholar

69 BVerfGE 34, 269 (281, 291) (1973). The Federal Court of Justice, whose decisions are summarized in id. at 273–75, had taken the arguably more candid approach of holding that Arts. 1(1) and 2(1), which declare human dignity (“die Würde des Menschen”) inviolable (“unantastbar”) and guarantee the right to free development of the personality (“die freie Entfaltüng [d]er Persönlichkeit”), required the state to provide redress for victims of invasions of privacy. For general discussion of these provisions, see Currie, Lochner Abroad, supra note 1, at 356–63; for discussion of the interesting problem of affirmative state obligations to protect one citizen from another, see Currie, Positive and Negative Constitutional Rights, 53 U Chi. L. Rev. 864 (1986).Google Scholar

70 BVerfGE 49, 304 (320) (1978). See also BVerfGE 41, 231 (1976) (holding that a member of a local governing body could not constitutionally be barred from representing an individual charged with crime since the relevant disqualification statute applied only to claims against the government); BVerfGE 65, 182 (1983) (holding that by giving priority to wage claims in an insolvency proceeding the Federal Labor Court had exceeded the limits on judicial lawmaking imposed by Article 20(3) since the bankruptcy state left no room for additional priorities). The opinion just cited distinguished Soraya by noting that the judicially created rule in the earlier case had “merely” afforded a remedy for a preexisting constitutional right and that it enjoyed widespread support among academic commentators. Id. at 194–95. Except to the extent that these passages may be taken to imply acceptance of the Court of Justice's argument that damages for invasion of privacy were compelled by the Basic Law itself, they seem typical of what courts tend to say when they deal with precedents for which they have no sympathy.Google Scholar

71 German labor law, as the Court noted in Soraya (BVerfGE 34, 269 (288) (1973)), is mostly judge-made law. See BVerfGE 84, 212, (226-27) (1991) (upholding judicial authority to fashion rules respecting the legality of lockouts within the limits of Art. 9(3)).Google Scholar

72 See id. at 227; Ossenbühl, supra note 59, Para. Nr. 35–41; Krey, supra note 55, at 466. The Supreme Court's decision in Erie R.R. v. Tompkins, 304 U.S. 64 (1938), constitutes a narrow and convincing exception to this general rule based on the limited purposes of federal jurisdiction over controversies between citizens of different states.Google Scholar

73 E.g., Grundgesetz [GG] [Constitution] art. 8(2) (F.R.G.), which permits restriction of the right of outdoor assembly “durch Gesetz oder auf Grund eines Gesetzes.” Similar provisions appear in connection with the right to life, personal liberty, and bodily integrity (Art. 2(2), reinforced by Art. 103(2), 104(1)), postal and telecommunications privacy (Art. 10(2)), freedom of movement (Art. 11(2)), occupational freedom (Art. 12(1)), and property (Art. 14(3)). The somewhat different provisions respecting expression (Art. 5(2)) and the right to free development of personality (Art. 2(1)) will be discussed in more detail below.Google Scholar

74 Grundgesetz [GG] [Constitution] art. 19(1), (2) (F.R.G.).Google Scholar

75 See Currie, Lochner Abroad, supra note 1, at 353–54.Google Scholar

76 E.g., Board of Trustees of SUNY v. Fox, 109 S. Ct. 3028, 3032–35 (commercial speech); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298–99 (1984) (time, place, and manner restrictions). See generally Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943 (1987).Google Scholar

77 See Hesse, supra note 6, Para. Nr. 314: “All reservation clauses empower only the legislature to limit basic rights.… A limitation of basic rights by executive or judicial authorities acting on their own is impermissible.”Google Scholar

78 Of all our Bill of Rights provisions, only the neglected third amendment explicitly contains this important safeguard: “No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” Cf. U.S. Const., Art. I, § 9: “No money shall be drawn from the Treasury, but in consequence of appropriations made by law…Subject to limited exceptions, the same principle is laid down in Art. 110–112 of the Basic Law. See Kisker, supra note 12, Para. Nr. 40–47; BVerfGE 45, 1 (1977) (holding that the Finance Minister had exceeded his authority under Art. 112 to authorize non-budgeted expenditures in cases of unforeseen and unavoidable necessity (“eines unvorhergesehenen und unabweisbaren Bedürfnisses”)). For a summary of other explicit provisions of Basic Law reserving particular powers to the legislature, see Ossenbühl, supra note 52, Para. Nr. 26–30.Google Scholar

79 Some of the decisions are collected in Currie, Lochner Abroad, supra note 1, at 340, 347–48 n.112. Most difficult to reconcile with the explicit requirement of a legislative basis for restriction of basic rights is once again the troublesome Soraya decision, where the Constitutional Court not only permitted the civil courts to invent a right to damages for invasion of privacy in the teeth of what appeared to be a plain legislative prohibition (see supra notes 53–69 supra) but went on to conclude without explanation (BVerfGE 34, 269 (292) (1973)) that this judicially made law qualified as a general law (“allgemeines Gesetz”) within the meaning of Art. 5(2), whose purpose, like that of the other provisions discussed in this section, seems to be to reserve the power to limit basic rights to the democratic and representative parliament. See Ossenbühl, supra note 52, Para. Nr. 13–14. The result might have been more convincingly explained by invoking Art. 5(2)'s further provision acknowledging that freedom of expression was also limited by the right to inviolability of personal honor (“Recht der personlichen Ehre”).Google Scholar

80 Grundgesetz [GG] [Constitution] art. 2(1) on its face guarantees a right to the free development of personality (“die freie Entfaltung [d]er Persönlichkeit”). For its interpretation see BVerfGE 6, 32 (1957) (Elfes); Currie, Lochner Abroad, supra note 1, at 358–59.Google Scholar

81 BVerfGE 56, 99 (107-09) (1981) (adding that the further requirement of fair warning that had also been attributed to the rule of law had been offended as well).Google Scholar

82 “Die verfassungsmäißge Ordnung in den Landern muIi den Grundsätzen des republikanischen, demokratischen und sozialen Rechtsstaates im Sinne dieses Grundgesetzes entsprechen.”Google Scholar

83 See, e.g., Herzog, Art. 20, in 2 Maunz/Dürig, Para. Nr. 30–35. For shrill criticism of the conventional learning, see Richard Bäumlein & Helmut Ridder, Art. 20, in 1 AK-GG, Para. Nr. 33–77.Google Scholar

84 See Herzog, Art. 20, in 2 Maunz/Dürig, Para. Nr. 59, 76–80.Google Scholar

85 BVerfGE 56, 1 (13) (1981). See also id. at 21, concluding that the legislature had fulfilled its duty.Google Scholar

86 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).Google Scholar

87 Id. at 643 (Jackson, J., concurring).Google Scholar

88 See Herzog, Art. 20, in 2 Maunz/Dürig, Para. Nr. 55. As the Constitutional Court emphasized in a leading decision, there are many areas (not least involving foreign affairs) in which the Basic Law itself vests important policymaking authority in the executive. What is reserved to the legislature is basically the formulation of law. See BVerfGE 49, 89 (124-27) (1978) (Kalkar).Google Scholar

89 “Reichsgesetze können außer in dem in der Reichsverfassung vorgesehenen Verfahren auch durch die Reichsregierung beschlossen werden.” RGB1. 1933, Teil I, S. 141.Google Scholar

90 Zemel v. Rusk, 381 U.S. 1, 22 (1965) (dissenting opinion).Google Scholar

91 See Hesse, supra note 6, Para. Nr. 526, arguing that this delegation provision “frees the Parliament for its true task of carefully considering and deciding fundamental issues.”Google Scholar

92 BVerfGE 1, 14 (60) (1951).Google Scholar

93 Id. Google Scholar

94 BVerfGE 7, 282 (1958). Since the tax was assessed every time a product changed hands, firms that processed and marketed their own products from start to finish enjoyed a significant cost advantage. See id. at 291–92.Google Scholar

95 Id. at 292–301.Google Scholar

96 “Der Gesetzgeber … muß … selbst schon etwas gedacht und gewollt haben.” Id. at 302, 304. Compare the requirement of a “primary standard” or “intelligible principle” formulated by our Supreme Court during the time when it too took seriously the provision vesting lawmaking powers in the legislature rather than in anyone else. See Buttfield v. Stranahan, 192 U.S. 470, 496 (1904); Hampton, J.W., Jr. & Co. v. United States, 276 U.S. 394, 409–11 (1928). For alternative formulations of the governing standard in Germany, see Maunz, Art. 80, in 3 Maunz/Dürig, Para. Nr. 27–28.Google Scholar

97 Contrast Field v. Clark, 143 U.S. 649 (1892) and J.W. Hampton Co. v. United States, 276 U.S. 394, 409–11 (1928) (upholding delegations of authority to adjust tariffs to compensate for unreasonable foreign duties and for low foreign production costs respectively); Federal Energy Comm. v. Algonquin SNG, Inc., 426 U.S. 548 (1976) (upholding a delegation to the President of authority to “adjust … imports” in any way he deemed necessary to prevent them from endangering national security).Google Scholar

98 BVerfGE 15, 153 (1962). The statute, said the Court, “neither determined how far back in time one might go in determining the average value nor specified how long an average value remained in force once it had been established.” Both the purposes and the articles for which average values were to be prescribed were left to executive discretion. Finally, the statute did not even say whether various articles grouped together had to be of approximately equal value, and thus the delegation enabled the executive “to introduce a different assessment principle … and thereby significantly to alter the basis” of the tax itself. Id. at 160–65.Google Scholar

99 BVerfGE 18, 52 (1964). There were various ways of determining both weight and distance, the Court said, and the statute did not clearly choose among them. Id. at 63–64.Google Scholar

100 “The legislature,” said the Court in the case last mentioned, “must provide its delegate with a ‘program.'” Id. at 62. In light of decisions such as those just noted, the Enquěte-Kommission (see supra note 48) recommended in 1976 that Art. 80(1) be amended to require only the purpose (not the content or extent) of a delegation to appear in the statute, in order to spare lawmakers the burden of prescribing details. See Schlußbericht der Enquěte-Kommission, supra note 48, at pt. 1, 190–93.Google Scholar

101 BVerfGE 8, 274 (278) (1958) (Preisgesetz).Google Scholar

102 Id. at 307.Google Scholar

103 Id. at 310, 312–13.Google Scholar

104 Id. at 314–18.Google Scholar

105 Id. at 318. It was not necessary, the Court added, that the delegation be “as specifically drafted as possible”; it must merely be “sufficiently specific.” Id. at 312.Google Scholar

106 321 U.S. 414 (1944).Google Scholar

107 See The Second Century, supra note 15, at 300–01.Google Scholar

108 See BVerfGE 8, 274 (324) (1958) (noting that the price-control law could be sustained only on the basis of this “verfassungskonforme[n] Auslegung'”). For instances in which the respective tribunals seem to have tried less hard to find an acceptable narrowing construction, see the German decisions cited supra notes 98 and 99, as well as Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and Justice Cardozo's more sympathetic dissent, id. at 437–38.Google Scholar

109 See, e.g., BVerfGE 55, 207 (225-44) (1980) (exhaustively explicating history and tradition to find implicit limitations on a facially broad authorization to adopt regulations respecting moonlighting by public servants); BVerfGE 68, 319 (332-34) (1984) (upholding an authorization to set minimum and maximum fees for medical services because the statutory requirement that the regulations respect the legitimate interests of both doctors and patients required that fees be “neither too high … nor too low”); BVerfGE 76, 130 (142-43) (1987) (finding standards in the legislative history sufficient to save an otherwise unconfined grant of authority to determine the level of court costs payable by public institutions). See also Hesse, supra note 6, Para. Nr. 528; Maunz, Art. 80, in 3 Maunz/Dürig, Para. Nr. 29–31 (arguing that the Court's tendency to merge the three constitutional requirements of content, purpose, and extent into a single quest for a legislative “program” has led to a certain loosening of the standard); Ramsauer, Ulrich, Art. 80, in 2 AK-GG, Para. Nr. 46–56 (concluding (as suggested in BVerfGE 76, 130 (142-43) (1987)) that the degree of specificity required has come to depend largely upon the degree of intrusiveness of the regulations authorized and on the complexity of the subject matter).Google Scholar

110 More recent examples include BVerfGE 38, 373 (381-83) (1975) (striking down an authorization to specify the professional duties (“Berufspflichten”) of pharmacists); BVerfGE 58, 257 (279) (1981) (invalidating an unconfined delegation of authority to determine which pupils should be expelled from school).Google Scholar

111 BVerfGE 78, 374 (1988).Google Scholar

112 Id. at 383–89.Google Scholar

113 Id. at 381–83.Google Scholar

114 See BVerfGE 33, 125 (155-56) (1972).Google Scholar

115 BVerfGE 41, 251 (266) (1976). See Grundgesetz [GG] [Constitution] art. 28(1) (F.R.G.): Die verfassungsmäßige Ordnung in den Ländern muß den Grundsätzen des republikanischen, demokratischen und sozialen Rechtsstaates im Sinne dieses Grundgesetzes entsprechen. Obviously this provision gives the Court a good deal of latitude in determining which provisions applicable on their face only to the Bund are essential elements of republican democracy, the rule of law, and the social state. See Herzog, Art. 20, in 2 Maunz/Dürig, Para. Nr. 122–25.Google Scholar

116 See, e.g., BVerfGE 49, 89 (126-27) (1978) (Kalkar); Maunz, Art. 80, in 3 Maunz/Dürig, Para. Nr. 11; Ossenbühl, supra note 52, Para. Nr. 10, 41. Indeed most of the decisions respecting the general Gesetzesvorbehalt deal with the delegation question. The requirement that there be some statutory basis for executive action follows a fortiori from the principle that even when it delegates authority the legislature must make the basic policy decisions.Google Scholar

117 BVerfGE 8, 274 (325-26) (1958).Google Scholar

118 The argument that there must be limits to delegation in order that the judges may have something to review was no more persuasive when made by Chief Justice Stone in the Yakus case. Yakus v. United States, 321 U.S. 414, 426. In an introductory paragraph the German Court had hinted that the principle of fair warning might provide yet another basis for the specificity requirement, noting that the rule of law required that a delegation be definite enough to make administrative action predictable (“voraussehbar und berechenbar”) by the affected citizen. BVerfGE 8, 274 (325) (1958). Fair warning is indeed an important element of the rule of law in Germany, see BVerfGE 56, 99 (109) (1981), and the Constitutional Court recently confirmed that it was one of the purposes behind the specificity requirement for criminal statutes in Art. 103(2). BVerfGE 78, 374 (382) (1988). Fair warning could be provided by the adoption of administrative standards, see Kenneth Culp Davis, Administrative Law Treatise 207–08 (2d ed. 1978), but that would not remove the basic objection to unbridled delegation of legislative authority.Google Scholar

119 BVerfGE 8, 274 (325) (1958). Since the terms of the delegation were the same as those of the authority to adopt regulations, which the Court had found sufficiently confining, they were upheld on the same reasoning. Id. at 326–227.Google Scholar

120 BVerfGE 33, 125 (158) (1972) (Fachärzte).Google Scholar

121 Id. at 159.Google Scholar

122 BVerfGE 77, 1 (1987).Google Scholar

123 BVerfGE 12, 319 (1961); BVerfGE 19, 253 (1965).Google Scholar

124 BVerfGE 32, 346 (1972).Google Scholar

125 BVerfGE 33, 125 (1972). See also Reinhold Hendler, Das Prinzip Selbstverwaltung, in 4 Handbuch des Staatsrechts 1133, Para. Nr. 58.Google Scholar

126 See, e.g., BVerfGE 33, 125 (159) (1972); Ramsauer, Art. 80, in 2 AK-GG, Para. Nr. 31–32. Cf. United States v. Mazurie, 419 U.S. 544 (1975) (applying especially lenient standards to a delegation of authority to an Indian tribe with governmental powers of its own); City of Eastlake v. Forest City Enters, 426 U.S. 668 (1976) (holding ordinary delegation standards inapplicable to a provision for referendum).Google Scholar

127 BVerfGE 33, 125 (158, 160) (1972). For the same differentiation in the context of Art. 80(1) itself see supra note 109. Cf. Schneider v. State, 308 U.S. 147, 164 (1939) (invalidating a grant of discretionary authority to issue permits for the door-to-door distribution of handbills).Google Scholar

128 BVerfGE 33, 125 (160) (1972). At stake in this case was an authorization of the medical profession itself to set standards for practice by medical specialists (Fachärzte). Concluding that the challenged rules impermissibly contracted occupational freedom on the merits, the Court did not have to decide whether the delegation itself was too broad. See id. at 165; Lochner Abroad, supra note 1, at 349.Google Scholar

129 BVerfGE 49, 89 (126-27) (1978) (Kalkar). For a later statement of the same principle in the context of public education see BVerfGE 58, 257 (268-69) (1981); for a brief description of the radical changes wrought by the Constitutional Court in this field since 1970 see Ossenbühl, supra note 52, Para. Nr. 43. Art. 59(2), to which the Court referred in the breeder case, requires legislative consent to any treaty affecting political relations or matters that are otherwise within legislative control. Such a treaty, however, need not specifically regulate everything that would be considered essential in the case of ordinary legislation; any such requirement, according to the Constitutional Court, would hamper the ability of the Federal Republic to deal with other nations. BVerfGE 77, 170 (231-32) (1987).Google Scholar

130 Critical characterizations employing such terms as “bankruptcy” and “blind alley” are collected and gently dismissed in Ossenbühl, supra note 52, Para. Nr. 44.Google Scholar

131 The Basic Law contains, however, a variety of provisions—most of them added by constitutional amendment in 1968–designed to preserve order in extraordinary situations in which normal governmental processes are disrupted, and some of them envision the possibility of lawmaking outside the Bundestag. In case of a military emergency (“Verteidigungsfall”) brought about by actual or threatened external attack, federal legislative powers are not only expanded to include matters normally reserved to the Länder (Grundgesetz [GG] [Constitution] art. 115c(1) (F.R.G.)); they may also be exercised by a joint committee made up of members of the Bundestag and Bundesrat (“Gemeinsamer Ausschuß,” Grundgesetz [GG] [Constitution] art. 53a (F.R.G.)), if by a two-thirds vote the committee finds that the Bundestag is unable to fulfill its duties (Art. 115e). In the less critical case of a so- called legislative emergency (“Gesetzgebungsnotstand”), Grundgesetz [GG] [Constitution] art. 81 (F.R.G.) authorizes the effective transfer of lawmaking powers from the Bundestag to the Bundesrat, see Herzog Art. 81, in 3 Maunz/Dürig, Para, Nr. 64–65, if after rejecting the Chancellor's request for a vote of confidence under Grundgesetz [GG] [Constitution] art. 68 (F.R.G.) the Bundestag is not dissolved. Defending emergency provisions in principle as preferable to extraconsitutional action, the respected former Justice Konrad Hesse has argued that the various clauses concerning physical interruption of government are too complicated and unconfined and that the whole idea of the legislative emergency is misguided: “The only thing that can be achieved on the basis of Art. 81 GG is thus to prolong the political crisis whose consequences it was designed to avoid.” Hesse, supra note 6, Para. Nr. 719–71. Those inclined to be smug about the absence of comparable provisions in the U.S. Constitution would be well advised to take another look at the extent of implicit military authority acknowledged in cases of true emergency by dicta in such brave and justly celebrated decisions as Ex parte Milligan, 71 U.S. 2 (1866), and Duncan v. Kahanamoku, 327 U.S. 304 (1946).Google Scholar

132 Verfassung des deutschen Reichs vom 28. März 1849, RGB1 S. 101, Abschnitte III-IV. § 101 gave the executive a suspensive veto that could be overridden by passing the same bill in three consecutive sessions. § 73 delphically described the ministers appointed by the Kaiser as responsible (“verantwortlich”); the extent to which this term implied parliamentary control of the executive was never clarified, since the constitution never took effect.Google Scholar

133 See Verfassung des Deutschen Reichs vom 16. April 1871, RGB1. S. 63, Art. 5, 6, 11–20. At this point the German situation resembled that which Montesquieu had so admired in England, although at the time he wrote it had largely ceased to reflect reality. See 11 Montesquieu, L'esprit des Lois ch. 6 (1748); Walter Bagehot, The English Constitution 69–72, 253–54, 303 (New York, Dolphin Books n.d.) (1872).Google Scholar

134 Although ministers were chosen by the independent Reichspräsident, they also required the confidence of the Reichstag, which was given the express power to vote them out of office. WRV, supra note 31, Arts. 53, 54.Google Scholar

135 WRV, supra note 31, Arts. 41, 48.Google Scholar

136 Id. at Art. 25. “Of the fourteen years of the Weimar Republic, more than nine were definitively shaped [bestimmt] by extraordinary measures under Art. 48.” 6 Ernst Rudolf Huber, Deutsche Verfassungsgeschichte seit 1789 689 (W. Kohlhammer 1981) (1957). See also Golo Mann, Deutsche Geschichte des 19. und 20. Jahrhunderts 756–58, 766–67 (1958); Jekewitz, Jürgen, Art. 54, in 2 AK-GG, Para. Nr. 5–10; BVerfGE 62, 1 (1983).Google Scholar

137 “The debate in the Parliamentary Council [over the powers of the President] was shaped by the desire to depart from the principles of the Weimar Constitution.” Klaus Schlaich, Die Funktionen des Bundespräsidenten im Verfassungsgefüge, in 2 Handbuch des Staatsrechts 541, Para. Nr. 88.Google Scholar

138 For comparison of the present provisions with those of the Weimar Constitution, see Herzog, Art. 54, in 3 Maunz/Dürig, Para. Nr. 8–12.Google Scholar

139 The President is elected by a special convention (“Bundesversammlung”). All members of the Bundestag are members of this convention; the state legislatures choose an equal number of additional delegates “on the principle of proportional representation.” Grundgesetz [GG] [Constitution] art. 54(1), (3) (F.R.G.). For explanation of the reasons for this procedure, see Herzog, Art. 54, in 3 Maunz/Dürig, Para. Nr. 10–12, 28. The President's term is five years, and he may be reelected only once (Grundgesetz [GG] [Constitution] art. 54(2) (F.R.G.)). On impeachment by a two-thirds vote of either the Bundestag or the Bundesrat, he may be removed from office if the Constitutional Court finds him guilty of deliberate violations of the Constitution or other federal law (Grundgesetz [GG] [Constitution] art. 61 (F.R.G.)). Broad incompatibility provisions (Grundgesetz [GG] [Constitution] art. 55 (F.R.G.)) promote the President's neutrality; immunities from arrest and prosecution (Grundgesetz [GG] [Constitution] art. 60(4) (F.R.G.)) protect him from harassment. See Herzog, Art. 55, in 3 Maunz/Dürig, Para. Nr. 3; Herzog, Art. 60, in Maunz/Dürig, Para. Nr. 56.Google Scholar

140 Grundgesetz [GG] [Constitution] art. 59(1) (F.R.G.).Google Scholar

141 Grundgesetz [GG] [Constitution] arts. 60(1), 63(2), 64(1) (F.R.G.). With respect to judges and nonministerial officials Art. 60(1) permits the appointment power to be vested elsewhere by law.Google Scholar

142 Grundgesetz [GG] [Constitution] art. 60(2) (F.R.G.). It is also said that certain unexpressed ceremonial prerogatives, such as the establishment of national symbols and the award of medals, are inherent in the office. See Herzog, Art. 54, in 3 Maunz/Dürig, Para. Nr. 69.Google Scholar

143 With certain exceptions including the appointment and dismissal of the Chancellor, Article 58 requires the countersignature (“Gegenzeichnung”) of a responsible minister for presidential orders and decrees (“Anordnungen und Verfügungen”). This formulation, it is said, was meant to embrace all legally binding acts of the Bundespräsident, including pardons. See Schlaich, supra note 137, Para. Nr. 68, 79; Herzog, Art. 58, in 3 Maunz/Dürig, Para. Nr. 21–44 (listing exceptions). The principal function of the approval requirement is to prevent the President from “pursuing an independent policy contrary to the wishes of the Government” or “interfering with the unified conduct of public affairs.” Schlaich, supra note 137, Para. Nr. 64.Google Scholar

144 E.g. Grundgesetz [GG] [Constitution] art. 63(2) (F.R.G.), which provides that the person chosen as Chancellor by the Bundestag shall be appointed by the Bundespräsident (“ist vom Bundespräsidenten zu ernennen”). Under Art. 63(1) it is the President who proposes the initial candidate, and in so doing he may exercise his own discretion, but the Bundestag is free to select someone else. See Grundgesetz [GG] [Constitution] art. 63(3) (F.R.G.); Schlaich, supra note 137, Para. Nr. 14. Somewhat less plain is Art. 64(1), which provides that the President shall appoint and dismiss other ministers upon proposal by the Chancellor (“auf Vorschlag des Bundeskanzlers”). Nevertheless it is understood that while the President has the right to argue over the merits of a ministerial nomination he must ultimately bow to the Chancellor's demands. See Schlaich, supra note 137, Para. Nr. 28 (acknowledging “an indefinable power to correct abuses”); Herzog, Art. 54, in 3 Maunz/Dürig, Para. Nr. 85 (finding the text clear).Google Scholar

145 In the foreign-affairs field, for example, it is said that the President has no policymaking authority whatever; even speeches are cleared with the Foreign Ministry. See Schlaich, supra note 137, Para. Nr. 50, 71. See also Herzog, Art. 54, in 3 Maunz/Dürig, Para. Nr. 86 (treaties), 87 (nonministerial appointments and general presumption against presidential discretion); Schlaich, supra note 137, Para. Nr. 29–30.Google Scholar

146 See Grundgesetz [GG] [Constitution] arts. 1(3), 20(3), 56, 61 (F.R.G.).Google Scholar

147 See Herzog, Art 54, in 3 Maunz/Dürig, Para. Nr. 74–77. The President's refusal to sign is not an “order” or “decree” and thus according to most observers does not require ministerial approval under See Grundgesetz [GG] [Constitution] art. 58 (F.R.G.). See Herzog, Art 54, in 3 Maunz/Dürig, Para. Nr. 84; Herzog, Art. 58, in 3 Maunz/Dürig, Para. Nr. 44 (adding that a countersignature requirement would defeat the purpose of providing a check on executive action).Google Scholar

148 “Die nach den Vorschriften dieses Grundegesetzes zustande gekommenen Gesetze werden vom Bundesprasidenten nach Gegenzeichnung ausgefertigt und im Bundesgesetzblatte verkundigt.”Google Scholar

149 See Schlaich, supra note 137, Para. Nr. 24–25.Google Scholar

150 See id. at Para. Nr. 33.Google Scholar

151 Id. at Para. Nr. 31, found only five instances (as of 1987) in which a President had refused to certify laws on constitutional grounds, two of them for failure to comply with the procedural requirement of Bundesrat consent. For a more recent example see President von Weizsäcker's refusal to sign a law that would have transferred authority over air traffic controllers to a private corporation, on the substantive ground that Article 33(4) permitted governmental functions to be carried out in most cases only by government officials. Der Staatsnotar bockt, Die Zeit, Feb. 8, 1991, p. 5. “Der Staatsnotar bockt,” says the headline—the notary refuses to sign.Google Scholar

152 Grundgesetz [GG] [Constitution] art. 56 (F.R.G.) (“das Grundegesetz und die Gesetze des Bundes wahren und verteidigen”). See Herzog, Art. 56, in 3 Maunz/Dürig, Para. Nr. 21 (arguing that the oath adds a moral obligation to the legal one imposed by Grundgesetz [GG] [Constitution] art. 20(3) (F.R.G.)).Google Scholar

153 See Schlaich, supra note 137, Para. Nr. 35–36; Ramsauer, Art. 82, in 2 AK-GG, Para. Nr. 11–16. Cf. Marbury v. Madison, 5 U.S. 137 (1803); The First Hundred Years, supra note 15, at 72–73. For consideration of the analogous question whether executive officers in the United States are bound by unconstitutional laws see Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1989-90).Google Scholar

154 See Schlaich, supra note 137, Para. Nr. 36, 37, 41. For arguments as to why Article 100(1)'s requirement that other judges who believe a statute unconstitutional certify the question to the Constitutional Court, see infra notes 287–89, does not implicitly require the President to sign unconstitutional laws, see Schlaich, supra note 137, Para. Nr. 38.Google Scholar

155 See Schlaich, supra note 137, Para. Nr. 6–11; Herzog, Art. 54, in 3 Maunz/Dürig, Para. Nr. 86 (stressing that Art. 39(3) requires the Bundestag to convene at the request of either “the President or the Chancellor”).Google Scholar

156 Grundgesetz [GG] [Constitution] art. 63(4) (F.R.G.). In this case the normal countersignature requirement does not apply. See Grundgesetz [GG] [Constitution] art. 58 (F.R.G.).Google Scholar

157 Grundgesetz [GG] [Constitution] art. 68(1) (F.R.G.).Google Scholar

158 Grundgesetz [GG] [Constitution] art. 81(1), (2), (3) (F.R.G.). See supra note 131.Google Scholar

159 See Herzog, Art. 54, in 3 Maunz/Dürig, Para. Nr. 86. With respect to the vote of no confidence under Art. 68 the Constitutional Court confirmed the President's discretion, as well as his authority to determine whether the legal requirements for dissolution had been met, in its famous opinion respecting the dissolution of Parliament in 1983. See BVerfGE 62, 1, (35, 50) (1983); Schlaich, supra note 137, Para. Nr. 15–21 (adding that as a practical matter the President's discretion in the case of a vote of no confidence has been severely limited by the Court's loose interpretation of the conditions justifying dissolution (see supra notes 33–48) and by its insistence, BVerfGE 62, 1 (50-51) (1983) that in assessing the political prospects for a viable Government the President is not to substitute his judgment for that of the Chancellor). See also Meinhard Schröder, Bildung, Bestand und parlamentarische Verantwortung der Bundesregierung, 2 Handbuch des Staatsrechts 603, Para. Nr. 23 (arguing that the Bundespräsident is free to reject a minority Chancellor under Art. 63(4) only if he doubts that candidate's ability to form an effective government).Google Scholar

160 See Schlaich, supra note 137, Para. Nr. 58.Google Scholar

161 See Grundgesetz [GG] [Constitution] art. 82 (F.R.G.).: “Die Bundesregierung besteht aus dem Bundeskanzler und aus den Bundesministern.”Google Scholar

162 Grundgesetz [GG] [Constitution] arts. 63, 64 (F.R.G.); see Herzog, Art. 63, in 3 Maunz/Dürig, Para. Nr. 1–6. In fact the choice of both Chancellor and Ministers is worked out by negotiation among the coalition parties in advance of the formal steps prescribed by the Constitution. See Schröder, supra note 159, Para. Nr. 1–2. Except for those ministries expressly named in the Basic Law (Defense, Finance, and Justice), the Chancellor determines which positions shall exist as an incident to his authority to fill them. See Herzog, Art. 64, in 3 Maunz/ Dürig, Art. 64, Rdnr. 3–5; Schröder, supra, Rdnr. 27–28 (arguing that the legislature is powerless to interfere). For early debates over the issue in the United States see Currie, The Constitution in Congress: The First Congress, 1789–91 (forthcoming). That the Chancellor must nominate ministers and allot them significant areas of responsibility, however, is said to be established by Art. 62's basic decision in favor of a cabinet system. See Herzog in 3 Maunz/ Dürig, Art. 62, Rdnr. 3.Google Scholar

163 Grundgesetz [GG] [Constitution] art. 69(2) (F.R.G.). Parliamentary removal of individual ministers, or of the Chancellor alone, is not permitted; the Cabinet stands or falls as a whole. See Herzog, Art. 67, in 3 Maunz/Dürig, Par. Nr. 10–11; Hezog, Art. 69, in 3 Maunz/Dürig, Para. Nr. 44. Some of the Länder constitutions, in contrast, permit the Parliament to remove individual ministers. See Herdegen, supra note 10, Para. Nr. 30.Google Scholar

164 Thus when the Cabinet has lost the support of Parliament there are three possibilities: The election of a new Chancellor under Art. 67 or (if the Chancellor resigns) Art. 63, the dissolution of Parliament under Art, 68 (see supra notes 33–48), and the continuation in office of a minority government. In the event of a race between Parliament to replace the chancellor and the Chancellor to seek the dissolution of Parliament, Art. 68(1) gives the legislature a trump card by providing that the right to dissolution is extinguished as soon as a new Chancellor is chosen. See Herzog, Art. 68, in 3 MaunzDürig, Para. Nr. 63 (explaining that it would make no sense to dissolve an assembly that was in a position to choose a viable cabinet).Google Scholar

165 Schröder, supra note 159, Para. Nr. 33–35. But see Hesse, supra note 6, Para. Nr. 635 (doubting whether a minority government kept in power by virtue of Art. 67's requirement of a constructive vote of no confidence (“konstruktives Mißtrauen- svotum”) is likely to be more effective than a caretaker government remaining in office in default of a successor, as under the Weimar Constitution); Herzog, Art. 62, in 3 Maunz/Dürig, Para. Nr. 80 and Herzog, Art. 67, in 3 Maunz/Dürig, Para. Nr. 16. For the argument that an attempt to force the Chancellor to resign by terminating his salary would amount to an unconstitutional circumvention of Art. 67, see id. at Para. Nr. 44.Google Scholar

166 Grundgesetz [GG] [Constitution] art. 44 (F.R.G.). In accordance with this purpose, the implicit executive privilege of withholding confidential or sensitive information is narrowly interpreted. See BVerfGE 67, 100 (127-46) (1984); Maunz, Art. 44, in 3 Maunz/Dürig, Para. Nr. 57. In fact, since the Cabinet normally enjoys the support of a parliamentary majority, it is more commonly the opposition that acts as a watchdog. To this end Art. 44(1) requires the Bundestag to conduct an investigation whenever requested by one fourth of its members, and the Constitutional Court has held that the same quorum may basically determine the agenda of the investigation—an important check in a system without strict structural separation of executive and legislative bodies. See BVerfGE 49, 70 (79-88) (1978); Herzog, Art. 62, in 3 Maunz/Dürig, Para. Nr. 105–06.Google Scholar

167 See, e.g., Herzog, Art. 20, in 2 Maunz/Dürig, Para. Nr. 64, 54–55 (noting the clear predominance (“deutliches Übergewicht”) of the Cabinet).Google Scholar

168 Indeed, although the Chancellor and other ministers are forbidden to engage in most other remunerative activities in order to minimize conflicts of interest, they may serve simultaneously as members of Parliament, as is common in a parliamentary system. See Herzog, Art. 66, in 3 Maunz/Dürig, Para. Nr. 2–4, 33–36 (explaining that historically a legislative seat does not qualify as a “salaried” office within the meaning of the incompatibility provision of Grundgesetz [GG] [Constitution] art. 66 (F.R.G.), and that therefore (strange as it may seem) a federal minister is free to serve as a state legislator as well).Google Scholar

169 Grundgesetz [GG] [Constitution] art. 65 (F.R.G.). These principles or guidelines, which have been defined as “binding, abstract, normative instructions,” have been compared to framework legislation (see Currie, The Constitution of the Federal Republic of Germany, supra note 1) in that they must leave sufficient discretion to the individual ministers to work out the details. See Norbert Achterberg, Innere Ordnung der Bundesregierung, 2 Handbuch des Staatsrechts 629, Para. Nr. 18–19; Herzog, Art. 65, in 3 Maunz/Dürig, Para. Nr. 5–10 (invoking the same analogy but concluding that the Chancellor is free to resolve particular controversies of significant political import so long as individual ministers retain a significant degree of overall discretion).Google Scholar

170 Grundgesetz [GG] [Constitution] art. 65 (F.R.G.). This means, for example, that it is the individual Minister who makes hiring and firing decisions and issues instructions to administrators within his department. See Herzog, Art. 65, in 3 Maunz/Dürig, Para. Nr. 59–61. Differences of opinion over matters concerning more than one Ministry are resolved by the Cabinet as a whole. Grundgesetz [GG] [Constitution] art. 65 (F.R.G.); see Achterberg, supra note 169, Para. Nr. 59. In normal times the Defense Minister is Commander in Chief of the armed forces (Grundgesetz [GG] [Constitution] art. 65a (F.R.G.)); in a military emergency (see supra note 131), command passes to the Chancellor in the interest of unified policy (Grundgesetz [GG] [Constitution] art. 115b (F.R.G.)). Under Grundgesetz [GG] [Constitution] art. 112 (F.R.G.) expenditures not provided for in the budget may be made only with the Finance Minister's approval.Google Scholar

171 See, e.g., Grundgesetz [GG] [Constitution] arts. 76, 81 (F.R.G.) (proposal for legislation in normal times and alter declaration of legislative emergency); Grundgesetz [GG] [Constitution] arts. 84, 85, 86 (F.R.G.) (various devices for controlling officials engaged in actual administration of the laws); Grundgesetz [GG] [Constitution] art. 115a, 115f (F.R.G.) (application for declaration of a military emergency and extraordinary powers once such a declaration is made). The Basic Law's allocation of authority between the Cabinet and its various Ministers was consciously patterned after that of the Weimer Constitution. See Achterberg, supra note 169, Para. Nr. 9–12. For a detailed breakdown of this allocation, see Meinhard Schröder, Aufgaben der Bundesregierung, 2 Handbuch des Staatsrechts 585, Para. Nr. 17–24.Google Scholar

172 Grundgesetz [GG] [Constitution] arts. 64, 65 (F.R.G.). See Achterberg, supra note 169, Para. Nr. 54; Herzog, Art. 64, in 3 Maunz/ Dürig, Para. Nr. 20 (finding that true basis of the Chancellor's preponderance in his power over the composition of the Cabinet). Contrast U.S. Const. art. II, § 1: “The executive power shall be vested in a President of the United States.”Google Scholar

173 See also Herzog, Art. 20, in 2 Maunz/Dürig, Para. Nr. 83, 111 (basing this conclusion on the requirement (partly codified in Art. 19(1)) that laws be of general applicability and on the general equality provision of Art. 3(1)).Google Scholar

174 See Loschelder, Wolfgang, Weisungshierarchie und persönliche Verantwortung in der Exekutive, 3 Handbuch des Staatsrechts 521, Para. Nr. 26, 41.Google Scholar

175 BVerfGE 8, 274 (319-22) (1958).Google Scholar

176 462 U.S. 919 (1983).Google Scholar

177 For an approving view see, Maunz, Art. 80, in 2 Maunz/Dürig, Para. Nr. 35, 60. As far as the U.S. Constitution is concerned, I have argued elsewhere that the Supreme Court was right: Once it is decided that the delegation is not too broad, the executive in acting under it is executing the law, and the legislature can interfere only by changing the law itself. The Second Century, supra note 15, at 591–93. Indeed the German Court acknowledged that a regulation approved by the Bundestag remained a regulation: The requirement of legislative approval did not make inapplicable the requirement of Art. 80(1) that the statute specify the content, purpose, and extent of the delegated authority. BVerfGE 8, 274, (322-23) (1958). See also BVerfGE 9, 268, 279–80 (1958), holding in contrast to Buckley v. Valeo, 424 U.S. 1, 109–43 (1976), that the fact that one member of a board with power to arbitrate disputes over public employment was a legislator did not disqualify him. The arrangement was invalidated, however, on the distinct ground that the executive was entitled to control of fundamental matters affecting its own composition. See text at nn.192-95 infra.Google Scholar

178 Such areas include defense, foreign affairs, some federal taxes, postal and telecommunications services, and some aspects of transportation. See Grundgesetz [GG] [Constitution] arts. 32, 87(1), 8Th, 87d, 108(1) (F.R.G.)Art. GG; Currie, The Constitution of the Federal Republic of Germany, supra note 1.Google Scholar

179 See BVerfGE 7, 155 (1957); BVerfGE 8, 1 (22-28) (1958); BVerfGE 11, 203 (210-17) (1960); BVerfGE 43, 154 (165-77) (1976); BVerfGE 44, 249 (262-68) (1977); BVerfGE 62, 374 (382-91) (1982); BVerfGE 64, 323 (351-66) (1983). See also Helmut Lecheler, Der öffentliche Dienst, 3 Handbuch des Staatsrechts 717, Para. Nr. 49–70; Currie, Lochner Abroad, supra note 1, at 351–52. Officers whose responsibilities involve the exercise of a discretion distinctively political, such as appointed mayors, may be discharged on political grounds. See BVerfGE 7, 155 (164-70) (1957); cf. Elrod v. Burns, 427 U.S. 347 (1976), drawing a similar distinction for purposes of determining when patronage dismissals offend the guarantee of free expression in the United States. For complaints about the increasing incidence of patronage hiring in Germany in the teeth of the nondiscrimination provision of Art. 33(3), see Lecheler, supra, Para. Nr. 20, 104, 107- 09 (1988).Google Scholar

180 See Wolfgang Benz, Von der Besatzungsherrschaft zur Bundesrepublik 133–16, 208–09 (1984).Google Scholar

181 See BVerfGE 7, 155 (162-63) (19857), invoking the debates in the Parliamentary Council and emphasizing the virtues of stability, neutrality, and “a counterweight to the political forces” that determine public affairs; Schröder, Meinhard, Die Bereiche der Regierung und der Verwaltung, 3 Handbuch des Staatsrechts 499, Para. Nr. 31.Google Scholar

182 Technically all officers are appointed by the Bundespräsident under Grundgesetz [GG] [Constitution] art. Art. 61(1) (F.R.G.). Like most of his actions, however, appointments require the countersignature of the responsible minister, who makes the actual decision. See Grundgesetz [GG] [Constitution] art. 58 (F.R.G.); Lecheler, supra note 179, Para. Nr. 75. See also Walter Krebs, Verwaltungsorganisation, 3 Handbuch des Staatsrechts 567, Para. Nr. 55, arguing that constitutional provisions for direct federal administration imply a high degree of centralized control.Google Scholar

183 See Lecheler, supra note 179, Para. Nr. 91, 103. See also id. at Para. Nr. 51–53 (adding that objectivity on the part of the public servant is a constitutional command).Google Scholar

184 See Loschelder, supra note 174, Para. Nr. 92–102. The entire executive authority, of course, is bound by law (“Gesetz und Recht”) under Article 20(3). Like the Bundespräsident's oath to uphold the Constitution (see text at n.152 supra), however, this provision does not tell us what the law requires the individual officer to do.Google Scholar

185 These powers are suggested by Art. 88 of the Basic Law itself, which speaks of a note-issuing and currency bank (“eine Währungs- und Notenbank”). To the end of controlling the money supply the Bundesbank has statutory authority among other things to fix interest and discount rates, to establish minimum reserve requirements for banks, and to make purchases and sales in the open market. See Maunz, Art. 88, in 3 Maunz/Dürig, Para. Nr. 29–40. Cf. 12 U.S.C. ch. 3 (Federal Reserve).Google Scholar

186 See Maunz, Art. 88, in 3 Maunz/Dürig, Para. Nr. 16, 18–19.Google Scholar

187 See id. at Para. Nr. 17, 20.Google Scholar

188 Art. 114 expressly requires that members of the Bundesrechnungshof enjoy “the independence of judges,” which is discussed in the text at infra notes 219–73. See also Maunz, Art. 114, in 4 Maunz/Dürig, Para. Nr. 17–24; Krisker, supra note 12, Para. Nr. 125 (complaining of excessive executive influence in the selection of members).Google Scholar

189 See Maunz, Art. 88, in 3 Maunz/Dürig, Para. Nr. 16.Google Scholar

190 In the field of higher education, Article 5(3)'s guarantee of academic freedom (“Wissenschaft, Forschung und Lehre”) has been held to require a significant degree of self-government by faculties of public universities. E.g., BVerfGE 35, 79 (1973); see Krebs, supra note 182, Para. Nr. 71. Cf. BVerfGE 12, 205 (1961) (holding that the guarantee of broadcasting freedom in Art. 5(1) forbade state interference with the management and programming of public television stations).Google Scholar

191 See Krebs, supra note 182, Para. Nr. 55; Maunz, Art. 87, in 3 Maunz/Dürig, Para. Nr. 66. The same provision also expressly authorizes the establishment of autonomous higher federal agencies (“selbständ.ige Bundesoberbehörden”) under the same conditions, but the term “autonomous” in this connection is understood to imply organizational distinctness rather than freedom from ministerial direction. See id. at Para. Nr. 83; Hans Peter Bull, Art. 87, in 2 AK-GG, Para. Nr. 28.Google Scholar

192 BVerfGE 9, 268 (1958);Google Scholar

193 The agency and the Personalrat each chose three other members of the panel. See id. at 269, 271–72.Google Scholar

194 Id. at 279–80. See supra note 177.Google Scholar

195 BVerfGE 9, 268 (281-84) (1958). For similar reasons the statute was held to offend the traditional civil service principles that Art. 33(5) requires both state and federal authorities to respect: The public official's responsibility to obey the laws and the lawful orders of his superiors was incompatible with his dependency on anyone else. Id. at 285–88. The Court added, however, that decisions as to “social” matters not directly affecting the duties of public officers, as well as even employment decisions affecting employees with lesser responsibilities (“Angestellte” and “Arbeiter”), might constitutionally be entrusted to the arbitration panels in question. Id. at 284–85.Google Scholar

196 On the one hand it can be argued that the decision is a narrow one: Of course the Cabinet must be in a position to carry out its responsibilities, but the Basic Law does not say what those responsibilities are. See Grundgesetz [GG] [Constitution] art. 65 (F.R.G.), empowering each minister to conduct “the affairs of his department” on his own responsibility; Müller, Ministerialfreie Räume, 1985 JuS 497; Herzog, Art. 65, in 3 Maunz/Dürig, Para. Nr. 106 (stressing that the decision dealt only with administrative organization). On the, other hand, one might respond that the framers of the Basic Law would hardly have bothered to ensure ministerial control of personnel decisions while permitting the entire subject being administered to be withdrawn from ministerial responsibility.Google Scholar

197 See, e.g., Loschelder, supra note 174, Para. Nr. 20–22, 37–40, 59. The historical and functional test employed by the Constitutional Court in determining that a subsidiary role in the supervision of banks was implicit in the conception of a “currency and note-issuing bank” under Art. 88 (BVerfGE 14, 197 (215-19) (1962)), while serving in that case to delimit the boundary between federal and state powers, seems no less appropriate for determining the ‘range of administrative activity that the same Article permits to be removed from ministerial control.Google Scholar

198 BVerfGE 22, 106 (113) (1967); BVerfGE 83, 130 (150) (1990). Committee decisions in the first case were subject to review by the courts at the instance of the administration, but not by the administration itself.Google Scholar

199 See, e.g., Krebs, supra note 182, Para. Nr. 80–83; Müller, supra note 196, at 508; Herzog, Art. 65, in 3 Maunz/Dürig, Para. Nr. 103 (analogizing the relinquishment of parliamentary control over executive action to the delegation of rulemaking authority and suggesting a similar test of “essential” executive functions).Google Scholar

200 Cf. Myers v. United States, 272 U.S. 52 (1926), a decision sadly eroded by later developments. See Humphrey's Executor v. United States, 29 U.S. 602 (1935); Morrison v. Olson, 487 U.S. 654 (1988). When executive authority is delegated to public bodies composed of those most immediately affected (e.g., disciplinary proceedings before professional associations), the democratic concern for parliamentary control is counterbalanced by the equally democratic argument of self-determination. See Hendler, supra note 125, Para. Nr. 48–49, 56. The transfer of executive responsibilities to private organizations, on the other hand, is particularly problematic in light of Art. 20(2)'s provision that public authority be exercised by specified organs of government and Art. 33(4)'s command that governmental responsibilities be entrusted “as a rule” to civil servants. It. was on this ground that the Bundespräsident recently refused to sign a law that would have privatized the business of air traffic control, which entails giving orders to pilots that have the force of law. See supra note 151. See also Krebs, supra note 182, Para. Nr. 10. For the impact of the organizational freedom guaranteed to workers by Art. 9(3) on the ability of workers and managers to set wages binding on nonparties, see BVerfGE 34, 307 (315-20) (1973).Google Scholar

201 See Currie, The Constitution of the Federal Republic of Germany, supra note 1.Google Scholar

202 Grundgesetz [GG] [Constitution] art. 85 (F.R.G.). In these cases state agencies are subject to federal instructions respecting not only the legality (“Gesetzmäßigkeit”) but also the appropriateness (“Zweckmäßigkeit”) of their actions. See Grundgesetz [GG] [Constitution] art. 85(4), (5).Google Scholar

203 See Grundgesetz [GG] [Constitution] arts. 84(3) (F.R.G.): “The Federal Government [Bundesregierung] shall exercise supervision to ensure that the Lander execute federal laws in accordance with applicable law [dem geltenden Rechte gemäß].” See also Peter Lerche, Art. 84, in 3 Maunz/Dürig, Para. Nr. 152; Krebs, supra note 182, Para. Nr. 41. Länder discretion may be limited by the issuance of general administrative rules (“Verwaltungsvorschriften”) (Grundgesetz [GG] [Constitution] art. 84(2) (F.R.G.) or (if the statute so provides) by regulations that also bind third parties (“Rechtsverordnungen”) (Grundgesetz [GG] [Constitution] art. 80(1) (F.R.G.)). In either case the rule becomes part of the “law” that the state agency is required to apply in taking individual actions. See Lerche, id. at Para. Nr. 157.Google Scholar

204 Grundgesetz [GG] [Constitution] arts. 37, 80(2), 84(2), (4), (5) (F.R.G.).Google Scholar

205 See Kimminich, Otto, Der Bundesstaat, 1 Handbuch des Staatsrechts 1113, Para. Nr. 45; Herzog, Art. 20, in 2 Maunz/Dürig, Para. Nr. 28, 35.Google Scholar

206 See Grundgesetz [GG] [Constitution] arts. 93–95 (F.R.G.).Google Scholar

207 See Grundgesetz [GG] [Constitution] art. 92 (F.R.G.): “Judicial power… shall be exercised by the Federal Constitutional Court, by the federal courts provided for in this Basic Law, and by the courts of the Länder.” Apart from the Constitutional Court and the supreme courts listed in Art. 95, the only federal courts provided for are for industrial property (“Angelegenheiten des gewerblichen Rechtsschutzes”) and for disciplinary matters in the military and civil service. Grundgesetz [GG] [Constitution] art. 96(1), (2), (4) (F.R.G.).Google Scholar

208 For a humble example justifying the former concern, consider the horrors that have arisen in attempting to distinguish the jurisdiction of our Court of Appeals for the Federal Circuit under 28 U.S.C. § 1295 from that of the ordinary Courts of Appeals under §§ 1291–92, as hinted at in David Currie, Federal Courts 601 (4th ed. 1990). For typical expressions of concern about the adequacy of appellate review to protect federal rights in the United States, see Osborn v. Bank of the United States, 22 U.S. 738, 822–23 (1824); England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 416 (1964). The well known benefits and costs of specialized courts in this country are discussed in hideous detail in David Currie & Frank Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum. L. Rev. 1 (1975).Google Scholar

209 Art. 95 originally provided for creation of a separate tribunal to resolve differences of opinion among the various specialized judicial branches. So few conflicts arose, however, that no such court was ever established. The present Art. 95(3) substitutes a more practicable joint panel (“Gemeinsamer Senat”) composed of members of the various Supreme Courts. See Herzog, Art. 95, in 4 Maunz/Dürig, Para. Nr. 52–60. For discussion of the federalism aspect of this question, Currie, The Constitution of the Federal Republic of Germany, supra note 1.Google Scholar

210 Grundgesetz [GG] [Constitution] art. 103(2), (3) (F.R.G.).Google Scholar

211 Grundgesetz [GG] [Constitution] art. 104(2)-(5) (F.R.G.).Google Scholar

212 Cf. U.S. Const. Amdt. 5–6.Google Scholar

213 Under the first clause of Art. 74 the Federation has concurrent legislative authority over the procedures of state as well as federal courts—subject, of course, to limitations found elsewhere in the Basic Law. See Currie, The Constitution of the Federal Republic of Germany, supra note 1.Google Scholar

214 For a general statements of these two requirements see, e.g., BVerfGE 64, 135 (143-44) (1983); Eberhard Schmidt-Aßmann, Art. 103(1), in 4 Maunz/Dürig, Para. Nr. 66–67. Cf. the provisions of our Administrative Procedure Act, 5 U.S.C. § 553(b), (c), for so-called notice-and-comment rulemaking by administrative agencies. For particulars respecting the right to be heard, see, e.g., BVerfGE 4, 190 (191-92) (1955) (adequate time to contest appeal of favorable decision); BVerfGE 5, 9 (11) (1956) (no constitutional right to oral argument); BVerfGE 60, 250 (252) (1982) (duty to hear all witnesses offered by the parties). Whether a judge has actually considered the submissions of the parties is obviously not always subject to proof, yet in a surprising number of cases the Constitutional Court has found that they were not considered. E.g., BVerfGE 11, 218 (219-20) (1960) (where it was admitted that the judges were unaware of the submission); BVerfGE 18, 380 (383-84) (1965) (where the submission had been erroneously rejected as untimely).Google Scholar

215 E.g., BVerfGE 10, 177 (182-84) (1959); BVerfGE 12, 110 (112-113) (1961). Cf. Ohio Bell Tel. Co v. Public Utilities Comm., 301 U.S. 292 (1937); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 393 (D.C. Cir. 1973).Google Scholar

216 Thus late filings have regularly been excused on the ground that the defaulting party was on vacation when notice reached his home (BVerfGE 25, 158 (166) (1969)), that mail delivery was unusually delayed (BVerfGE 40, 42 (44-46) (1975)), that the party had relied on misleading official advice (BVerfGE 40, 46 (50-51) (1975)), or that he was unable to understand the German language (BVerfGE 40, 95 (99-100) (1975)). For the suggestion that the Court may have been overly generous in this regard, see Schmidt-Aßmann, Art. 103(1), in 4 Maunz/Dürig, Para. Nr. 126. Contrast Wainwright v. Sykes, 433 U.S. 72 (1977) (permitting even constitutional rights in the context of a criminal proceeding to be lost for failure to raise them in time absent an affirmative showing of cause).Google Scholar

217 The theory is that any interference with one's general freedom of action can be justified only by the constitutional order, the rights of others, or the moral code (Art. 2(1)); that any action inconsistent with the rule of law fails to satisfy these conditions; and that a fair trial is an element of the rule of law guaranteed by Art. 20(3). See BVerfGE 38, 105 (111-18) (1974) (attorney); BVerfGE 64, 135 (145-57) (1983) (translator). For criticism of these decisions, see Schmidt-Aßmann, Art. 103(1), in 4 Maunz/Dürig, Para. Nr. 9, 103, 117–18 (arguing that the more specific provision of Art. 103(1) should take precedence and cogently rioting that in many cases the right to a hearing is meaningless without the aid of an attorney or translator). Cf. Powell v. Alabama, 287 U.S. 45, 68–69 (1932).Google Scholar

218 BVerfGE 53, 352 (358-61) (1980). See also BVerfGE 56, 37 (41-52) (1981) (tracing the privilege against self-incrimination to the provisions protecting human dignity (Art. 1(1)) and the right to development of personality (Art. 2(1))). For other examples, see Currie, Lochner Abroad, supra note 1, at 345 n.97, 351 n.147; Schmidt-Aßmann, Art. 103(1), in 4 Maunz/Dürig, Para. Nr. 8. This approach has the advantage of permitting the Court to find constitutional requirements for administrative as well as judicial procedure—unlike that based on Art. 103(1), which is expressly directed to the courts. Art. 19(4), which guarantees judicial review of administrative action (see infra notes 273–82), is likewise understood to require procedures adequate to make such review effective. Its central focus, however, is on access to the courts; the quality of the judicial proceeding is principally governed by Art. 103(1). See Schmidt-Aßmann, Art. 103(1), in 2 Maunz/Dürig, Para. Nr. 19–26, 7.Google Scholar

219 Although it has been estimated that as many as 45% of all constitutional complaints before the Court have concerned the right to a hearing under Art. 103(1), the vast bulk of these complaints present no new question of law, and the Court functions essentially to correct plain violations of the established rules. See Schmidt-Aßmann, Art. 103(1), in 4 Maunz/Dürig, Para. Nr. 157, 159.Google Scholar

220 In this context the term “Gesetz,” despite its narrower alternative connotations, is understood to include all authoritative sources of positive law. See, e.g., Herzog, Art. 97, in 4 Maunz/Dürig, Para. Nr. 4–5; Gunther Barbey, Der Status des Richters, 3 Handbuch des Staatsrechts 815, Para. Nr. 32. For the disputed significance of Art. 20(3)'s additional provision binding the judiciary to “Recht” as well as “Gesetz,” see supra notes 53–69, discussing the Soraya case. For the argument that Art. 97(1) requires as a general rule that judges be trained in the law in order to be in a position to obey it, see Herzog, Art. 92, in 4 Maunz/Dürig, Para. Nr. 77–84.Google Scholar

221 See Wilhelm Karl Geck, Wahl and Status der Bundesverfassungsrichter, 2 Handbuch des Staatsrechts 697, Para. Nr. 29–30, 49–51.Google Scholar

222 See Herzog, Art. 97, in 4 Maunz/Dürig, Para. Nr. 10.Google Scholar

223 See BVerfGE 14, 56 (67) (1962) (deriving from Art. 20(2) the requirement that the courts be “sufficiently separate from administrative agencies in the organizational sense)”; Bettermann, Karl August, Die rechtsprechende Gewalt, 3 Handbuch des Staatsrechts 775, Para. Nr. 5, adding that the Basic Law itself makes two exceptions to this rule: Art. 84(4) makes it the responsibility of the Bundesrat in the first instance to determine whether one of the Länder has failed in its duty to enforce federal law, and Art. 10(2) authorizes the legislature to substitute agencies of its own for courts in passing upon the legality of electronic and postal surveillance in national security cases. Added in 1968, the latter provision was upheld with some difficulty over the objection that it contradicted fundamental principles of Art. 20, which Art. 79(3) protects even against constitutional amendment. See infra notes 316–17. See also Grundgesetz [GG] [Constitution] art. 41(1) (F.R.G.), noted in text supra notes 28–29, which in order to safeguard the independence of the Bundestag makes it basically the judge of the credentials of its own members.Google Scholar

224 “They may not be members of the Bundestag, the Bundesrat, the Federal Government, nor of any of the corresponding organs of a Land.” The universal understanding that this is only an incompatibility and not an ineligibility provision is reflected in the statute establishing the Constitutional Court, which after repeating the language of Art. 94(1) adds that the Justices cease to be members of the named governmental bodies upon their appointment to the Court. BVerfGG § 3(3). See also § 3(4) of the same statute, which extends the incompatibility principle further by barring the Justices from any professional activity except that of law professor at a German university.Google Scholar

225 BVerfGE 10, 200 (216-18) (1959). See also BVerfGE 18, 241 (255-56) (1964) (holding for similar reasons that members of the executive or policymaking branches of a professional association could not serve as judges in cases involving complaints of unprofessional conduct).Google Scholar

226 BVerfGE 14, 56 (68-69) (1962). Thus in the result the incompatibility doctrine the Constitutional Court has derived from the separation of powers is somewhat reminiscent of the limitations our Supreme Court has found in the due process clause in such cases as Tumey v. Ohio, 273 U.S. 510 (1927).Google Scholar

227 But see Herzog, Art. 20, in 2 Maunz/Dürig, Para. Nr. 47, 49 (arguing that Art. 20(2) also forbids members of the Bundestag or of the Cabinet to serve simultaneously as judges). See also Deutsches Richtergesetz vom 8. Sept. 1961, BGB1 I, S. 1665 [DRiG], § 4, which subjects judges to a broad statutory incompatibility rule.Google Scholar

On the related question of the extent to which judges may be entrusted with nonjudicial functions the Constitutional Court has been somewhat equivocal. In 1971 it held that an authorization to examine witnesses in conjunction with an administrative investigation did not compromise judicial independence precisely because in so doing the judge was not engaged in adjudication. BVerfGE 31, 43 (45-46) (1971). See also Wassermann, Art. 92, in 2 AK-GG, Para. Nr. 39 (concluding that the Basic Law does not forbid giving judges nonjudicial duties). Subsequent decisions, however, have upheld the grant of such arguably extracurricular functions as the correction of land registers only alter concluding that they were closely related to some traditional judicial function. BVerfGE 76, 100 (106) (1987); see also BVerfGE 64, 175 (179-80) (1983) (computations incident to financial arrangements on divorce). For American analogies, contrast Hayburn's Case, 2 U.S. 409, 410–14 n. (1) (1792), where five Justices on circuit convincingly concluded that federal judges as such could not exercise nonjudicial functions, with the troublesome decision in Mistretta v. United States, 488 U.S. 361 (1989) (permitting judges to serve as members of a sentencing commission with substantive rulemaking powers).Google Scholar

228 See BVerfGE 3, 213 (224) (1953); Herzog, Art. 97, in 4 Maunz/Dürig, Para. Nr. 9, 22–24; Geck, supra note 221, Para. Nr. 49.Google Scholar

229 As Art. 101(2) acknowledges, this provision does not preclude the creation of specialized courts for such subjects as labor law; Art. 95 expressly contemplates them. What Art. 101 requires is that their jurisdiction be specified by statute, in general terms, and in advance. See BVerfGE 3, 213 (223) (1953); Degenhart, Christoph, Gerichtsorganisation, 3 Handbuch des Staatsrechts 859, Para. Nr. 27.Google Scholar

230 See BVerfGE 4, 412 (416) (1956) (adding that the prohibition of extraordinary courts was designed to prevent evasion of this provision); BVerfGE 17, 294 (298-302) (1964); Degenhart, supra note 229, Para. Nr. 17–24. Art. 101(1) serves also as the procedural tool enabling individual litigants to challenge the status of those who pass upon their cases; for a judge who does not satisfy all the constitutional requirements for the exercise of judicial authority cannot be the “lawful judge” to whom every litigant is entitled. See BVerfGE 10, 200 (213) (1959); Barbey, supra note 220, Para. Nr. 62.Google Scholar

231 See Herzog, Art. 97, in 4 Maunz/Dürig, Para. Nr. 11, 47; Geck, supra note 221, Para. Nr. 50; Wassermann, Rudolf, Art. 97, in 2 AK-GG, Para. Nr. 15: “The guarantee of freedom from instructions would be ineffective if the judge had to fear dismissal or transfer in the event of an unpleasing decision.”Google Scholar

232 See Grundgesetz [GG] [Constitution] art. 20(1) (F.R.G.); Geck, supra note 221, Para. Nr. 6; Wassermann, Art. 92, in 2 AK-GG, Para. Nr. 13a-14. Thus the Constitutional Court has held that Art. 92, which vests judicial power in courts of the Bund and of the Lander, permits municipalities or public corporations to exercise such power only if the state itself has a decisive say in selecting the judges. See BVerfGE 10, 200 (214-15) (1959) (holding that municipal courts were Lander courts within the meaning of Art. 92); BVerfGE 18, 241 (253-54) (1964) (rejecting objections in principle to the exercise of judicial powers by a medical association organized as a corporation under public law but invalidating a provision for judicial selection by members of that body).Google Scholar

233 Grundgesetz [GG] [Constitution] art. 94(1) (F.R.G.). The implementing statute provides for indirect election of those members chosen by the Bundestag, evidently in the interest of efficiency. The constitutionality of this departure has been questioned on the ground that election by the Bundestag itself would provide a greater measure of democratic legitimacy. The statute also requires a two-thirds vote for approval of each appointment, in the interest of assuring board popular support for the institution. Any implication that Justices were appointed to further the policies of a particular political majority, it is argued, could impair the public confidence, on which the Court's effectiveness depends. In practice the two major parties (SPD and CDU/CSU) have agreed to divide the seats equally, reserving one of those assigned to whichever party happens to be in the Cabinet for its inevitable coalition partner, the FDP. One of the consequences has been that most of the Justices have been either members of the major parties or very close to them—a situation which has also been called detrimental to the image of a disinterested Court. See Geck, supra note 221, Para. Nr. 7–20.Google Scholar

234 Grundgesetz [GG] [Constitution] art. 95(2) (F.R.G.). Both the federal minister and the committee must agree on the choice. See Maunz, Art. 95, in 4 Maunz/Dürig, Para. Nr. 63.Google Scholar

235 Grundgesetz [GG] [Constitution] art. 98(3) (F.R.G.). Herzog, Art. 98, in 4 Maunz/Dürig, Para. Nr. 1–2, 13–14, 34–40 (also noting that tradition of ministerial appointment of Länder judges and Art. 98(4)'s explicit permission for participation by a committee such as those which help to select most federal judges).Google Scholar

236 U.S. Const. Art. I, §§ 2, 3; Art. II, § 4.Google Scholar

237 Grundgesetz [GG] [Constitution] art. 97(2) (F.R.G.) (“nur kraft richterlicher Entscheidung”). Thus even as it held that municipal officials could constitutionally sit as judges in cases involving small claims between private parties (see supra notes 225–26), the Constitutional Court found it contrary to Art. 97(2) to provide that they lost their position as judges when they left the local government, because this arrangement effectively enabled the municipality to fire the judge. BVerfGE 14, 56 (71-72) (1962). Further provisions for removal on the basis of criminal conviction or after a formal disciplinary proceeding were upheld since in both cases removal depended upon judicial decision. Id. at 71. See also BVerfGE 17, 252 (259-62) (1964) (holding Art. 97(2) offended by a selective assignment of cases that left a judge with essentially nothing to do even though he had not been formally transferred, retired, suspended, or removed). Art. 97(2)'s further provision permitting transfer or discharge of judges upon restructuring of the court system itself (“Veränderung der Gerichte oder ihrer Bezirke”) has an obvious practical explanation but has been criticized as a potentially significant gap in the guarantee of an independent judiciary. See Herzog, Art. 97, in 4 Maunz/Dürig, Para. Nr. 53–54 (insisting that courts may not be abolished or otherwise altered in order to get rid of individual judges or influence a particular case). Cf. the Jeffersonian Judiciary Act of 1802, 2 Stat. 132, which is widely understood to have abolished the Circuit Courts created just a year before in order to put their Federalist judges out of a job; Stuart v. Laird, 5 U.S. 299 (1803), where the Supreme Court ducked the troublesome constitutional question; Currie, The First Hundred Years, supra note 15, at 74–75.Google Scholar

238 See Barbey, supra note 220, Para. Nr. 41–48; Herzog, Art. 97, in 4 Maunz/Dürig, Para. Nr. 49–52 (terming the lack of any requirement that judges be given regular appointments one of the “open flanks” of the independent judiciary). Lay judges in administrative and criminal cases (called “Schöffen” in the latter case) serve a purpose somewhat analogous to that of the Anglo-American jury. Cf. Gerhard Casper, The Judiciary Act of 1789 and Judicial Independence (forthcoming).Google Scholar

239 See BVerfGE 14, 56 (70) (1962); BVerfGE 14, 156 (161-73) (1962) (invoking both Grundgesetz [GG] [Constitution] art. 97(2) (F.R.G.) and Grundgesetz [GG] [Constitution] art. 92 (F.R.G.)). See Barbey, supra note 220, Para. Nr. 53–55; Herzog, Art. 97, in 4 Maunz/ Dürig, Para. Nr. 62, 67–69. In conformity with the Constitutional Court's conclusion that most part-time and lay judges must partake of the protections that Art. 97(2) expressly affords their regular colleagues, the statute defining the status of judges (DRiG, § 44(2)) provides that. (unlike probationary judges under § 22) they can be removed only pursuant to judicial decision. See also § 29 of the same statute, which makes the Court's presumption against multiple probationary judges an absolute rule; Wassermann, Art. 97, in 2 AK-GG, Para. Nr. 68 (branding the whole idea of judges who are less than fully independent questionable (“fragwurdig”)).Google Scholar

240 Grundgesetz [GG] [Constitution] art. 97(2) (F.R.G.) (“nur aus Gründen und unter den Formen, welche die Gesetze bestimmen”). The statutes provide for retirement or removal on the basis of incapacity as well as misconduct. DRiG, §§ 21, 24, 34; BVerfGG, § 105. See Geck, supra note 221, Para. Nr. 24 (adding that the statutory procedure is so structured as to pose no threat to judicial independence and that (as of 1987) no member of the Constitutional Court had ever been subjected to these provisions); Herzog, Art. 97, in 4 Maunz/Dürig, Para. Nr. 58, 61 (concluding that the Constitutional Court has established a general principle of personal independence going beyond the specific terms of Art. 97(2)). Art. 98(2) additionally authorizes the Constitutional Court, on application of the Bundestag and by a two thirds vote, to remove any federal judge for infringement of the Basic Law or “the constitutional order of a Land.” See Gerd Roellecke, Aufgabe and Stellung des Bundesverfassungsgerichts in der Gerichtsbarkeit, 2 Handbuch des Staatsrechts 683, Para. Nr. (assimilating this provision to others designed to protect against subversion of the basic constitutional system and adding that it had never yet been invoked).Google Scholar

241 “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” U.S. Const., Art. III, § 1.Google Scholar

242 See BVerfGE 3, 213 (224) (1953); Herzog, Art. 97, in 4 Maunz/Dürig, Para. Nr. 55. 56.Google Scholar

243 See DRiG, § 48 (as amended Dec. 12, 1985, BGB1. I, S. 2226). Länder judges are subject to similar provisions. See Herzog, Art. 97, in 4 Maunz/Dürig, Para. Nr. 59. The mandatory retirement provision seems well designed to avoid the embarrassment of members who have passed their peak without posing any serious threat to judicial independence. For examples of difficulties experienced by our Supreme Court for want of a similar requirement, see Currie, The First Hundred Years, supra note 15, at 320 n. 250; Currie, The Second Century, supra note 15, at 3.Google Scholar

244 BVerfGG § 4(1), (2), ¶ (3) of the same section adds that Justices must retire at age 68 even if their 12 years have not expired.Google Scholar

245 Cf. the New Deal crisis of the 1930's in the United States, Currie, The Second Century, supra note 15, at ch. 7.Google Scholar

246 For explication and criticism of this reasoning, see Geck, supra note 221, Para. Nr. 21–22 (noting that the age limit of 68 years provides significant protection against obsolescence and arguing that decisions may be influenced by the desire to obtain alternative employment at the end of the 12-year term).Google Scholar

247 Originally those Justices appointed from the various Supreme Courts served for life, other Justices for eight years subject to reappointment. See Franz Klein, § 4, in Bundesverfassungsgerichtsgesetz Kommentar Para. Nr. 1 [hereafter cited as Maunz/-Schmidt-Bleibtreu].Google Scholar

248 See id., Para. Nr. 3; BVerfGE 14, 56 (70-71) (1962) and BVerfGE 18, 241 (255) (1964), finding terms of six and four years respectively “not so short as seriously to impair the personal independence” of judges not covered by the specific provisions of Art. 97(2); Herzog, Art. 97, in 4 Maunz/Dürig, Para. Nr. 66 (arguing that for professional judges eight years should be the constitutional minimum).Google Scholar

249 U.S. Const. Art. III, § 1; see The Federalist, No. 79.Google Scholar

250 See Currie, The Second Century, supra note 15, at 235–36.Google Scholar

251 For the composition of ordinary federal and state courts, see Grundgesetz [GG] [Constitution] art. 74 nr. 1 (F.R.G.); for that of the Constitutional Court, see Grundgesetz [GG] [Constitution] art. 94(2) (F.R.G.). Article 98(1) authorizes federal regulation of the status of federal judges, Art. 98(3) state regulation of that of state judges subject to federal framework legislation and to the concurrent federal legislative authority over salaries granted by Art. 74a.Google Scholar

252 See Geck, supra note 221, Para. Nr. 4.Google Scholar

253 See BVerfGE 12, 81 (88) (1961) (basing this conclusion on Art. 33(5)'s general requirement of respect for traditional principles of public service); BVerfGE 26, 79 (93-94) (1969) (explaining and following the earlier decision as an interpretation of the guarantee of judicial independence in Art. 97(1)).Google Scholar

254 See BVerfGE 12, 81 (88) (1961) (attributing to Art. 33(5)'s traditional public- service principles the requirement of a firm and appropriate salary (eine “angemessene—feste—Besoldung”)); BVerfGE 26, 141 (157-58) (1969) (finding challenged judicial salaries consistent with Art. 97 because they were not so plainly insufficient as to threaten judicial independence). Indeed the Court has gone so far as to hold that traditional principles under Art. 33(5) require that judges be given a suitably dignified title as well. BVerfGE 38, 1 (12-14) (1974).Google Scholar

255 See BVerfGE 5, 372 (393) (1981).Google Scholar

256 See generally Currie, Bankruptcy Courts and the Independent Judiciary, 16 Creighton L. Rev. 441 (1983). Recent decisions upholding such tribunals include Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568 (1985), and Commodity Futures Trading Comm. v. Schor, 478 U.S. 833 (1986).Google Scholar

257 Cf. U.S. Const. Art. III, § 1: “The judicial power of the ‘United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”Google Scholar

258 See, e.g., BVerfGE 22, 49 (73-75) (1967); Bettermann, supra note 223, Para. Nr. 4; Herzog, Art. 92, in 4 Maunz/Dürig, Para. Nr. 42.Google Scholar

259 E.g., id., Herzog, Art. 92, in 4 Maunz/Dürig, Para. Nr. 43–46. See also BVerfGE 22, 49 (76-77) (1967).Google Scholar

260 BVerfGE 22, 49 (77-81) (1967).Google Scholar

261 See id. at 78.Google Scholar

262 BVerfGE 27, 18 (28-32) (1969).Google Scholar

263 BVerfGE 27, 36 (40-44) (1969). For criticism of these criteria as too lenient, see Bettermann, supra note 223, Para. Nr. 20–22, as too strict, see Herzog, Art. 92, in 4 Maunz/Dürig, Para. Nr. 42–50 (finding it perverse to hold that only a judge could impose a trifling fine on a professional driver while permitting a bureaucrat to suspend his license and thus to “annihilate his civil existence”).Google Scholar

264 Cf. Murray's Lessee v. Hoboken Land & Improv. Co., 59 U.S. 272 (1856); Ex parte Bakelite Corp., 279 U.S. 438 (1929).Google Scholar

265 See supra note 256.Google Scholar

266 See BVerfGE 22, 49, (76-77) (1967)Google Scholar

267 BVerfGE 27, 18 (28) (1969). In support of this conclusion, see Bettermann, supra note 223, Para. Nr. 30–46 (arguing that applying the law to particular facts is an executive function only in matters to which the government is itself a party, and that therefore only a neutral judge can resolve disputes between private parties). Cf. the “public right” distinction embraced by the Supreme Court in Ex parte Bakelite Corp., supra note 264, and watered down by Crowell v. Benson, 285 U.S. 22 (1932), and later decisions cited in supra note 256. This is not to deny that in Germany, as elsewhere, private parties may agree to resolve disputes by arbitration or that private associations may discipline their own members. The best explanation for such instances of private adjudication seems to be consent, cf. Commodity Futures Trading Comm. v. Schor, 478 U.S. 833 (1986), and even in such cases the Basic Law is said to require judicial review at least to prevent gross abuses (Mißrauchskontrolle) if not also to ensure the legality (Rechtmälßigkeit) of the decision. See Herzog, Art. 92, in 4 Maunz/Dürig, Para. Nr. 145–69; Bettermann, supra note 223, Para. Nr. 77–79.Google Scholar

268 “Wird jemand durch die öffentliche Gewalt in semen Rechten verletzt, so steht ihm der Rechtsweg offen.”Google Scholar

269 E.g., BVerfGE 22, 49 (77) (1967); see Bettermann, supra note 223, Para. Nr. 61.Google Scholar

270 See, e.g., BVerfGE 27, 18 (33-34) (1969); BVerfGE 27, 36 (43) (1967); Bettermann, supra note 223, Para. Nr. 50; Herzog, Art. 92, in 4 Maunz/Dürig, Para. Nr. 67, 70.Google Scholar

271 Cf. United States v. Raddatz, 447 U.S. 667 (1980).Google Scholar

272 See, e.g., Crowell v. Benson, 285 U.S. 22 (1932) (permitting limited judicial review of most factual matters decided by an administrative agency in workers’ compensation cases).Google Scholar

273 As the constitutional term “rights” suggests, it is necessary but not sufficient that the complainant be adversely affected by the action of which he complains; he must also be within a class of persons the law he invokes was designed to protect. See Schmidt-Aßmann, Art. 19(4), in 2 Maunz/Dürig, Para. Nr. 118–20, 136–42. Cf. Association of Data Processing Organizations v. Camp, 397 U.S. 150 (1970). The text of Art. 19(4) also requires a present rather than a future invasion of right, but in some cases a threat of future action constitutes a present injury. See Schmidt-Aßmann, Art. 19(4), in 2 Maunz/Dürig, Para. Nr. 164, 278–79. Cf. the treatment of this question in the context of the constitutional complaint, infra note 285.Google Scholar

274 “The very essence of civil liberty,” said Marshall, “certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 5 U.S. 137, 163 (1803).Google Scholar

275 On occasion the Court has held that in particular contexts due process re. quires judicial process, e.g., Ng Fung Ho v. White, 259 U.S. 276 (1922); Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287 (1920); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 (1936), and it once held that Article III required de novo review of jurisdictional facts decided by an administrative agency in a workers’ compensation case. Crowell v. Benson, 285 U.S. 22 (1932). Beyond this, Crowell implied that Article III required review of questions of law decided by quasi-judicial agencies and of the reasonableness—not the correctness—of their factual findings. See generally Louis Jaffe, Judicial Control of Administrative Action 381–89 (1965).Google Scholar

276 E.g., BVerfGE 15, 275 (283) (1963); BVerfGE 61, 82 (111) (1982) (quoted in infra note 281). Contrast the limited judicial review of fact findings typically afforded in the United States by the formula “supported by substantial evidence on the record as a whole.” E.g., Administrative Procedure Act, § 10(e), 5 U.S.C. § 706(2)(E). In support of the constitutionality of this limited review in most cases, see Crowell v. Benson, supra note 275.Google Scholar

277 E.g., BVerfGE 8, 274 (326) (1958) (Preisgesetz): “Der durch [Art. 19 Abs. 4 GG] erteilte Rechtsschutzauftrag kann nur dann verwirklicht werden, wenn die Anwendung der Norm durch die… Exekutive von den Gerichten nachprüfbar ist.” See also BVerfGE 11, 168 (192) (1960) (suggesting that a statutory provision attempting to limit judicial review of such questions by placing them within agency discretion would raise a serious constitutional issue).Google Scholar

278 See Chevron, USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).Google Scholar

279 For limits on the delegation of lawmaking authority, see supra notes 88–131, discussing Grundgesetz [GG] [Constitution] art. 80(1) (F.R.G.) and related doctrines.Google Scholar

280 See Bettermann, Die Rechtsweggarantie des Art. 19 Abs. 4 GG in der Rechtsprechung des BVerfGE, 96 Archiv des öffentlichen Rechts [AöR] 528, 543 (1971). Grundgesetz [GG] [Constitution] Art. 19(4) “says nothing about the existence, content, or extent of the rights against whose infringement it promises judicial protection. It does not afford them; it assumes them.” See also Schmidt-Aßmann, Art. 19(4), in 2 Maunz/Dürig, Para. Nr. 78; Fritz Scharpf, Die politischen Kosten des Rechtsstaats 38–52 (1970) (criticizing the intrusiveness of German review in this regard in light of practice in the United States).Google Scholar

281 See, e.g., BVerfGE 61, 82 (111) (1982), reaffirming that Art. 19(4) “basically precludes binding the judiciary to accept findings of fact or conclusions of law made by others branches of government” but “[w]ithout prejudice to areas of [administrative] latitude for the exercise of creativity, judgment, or discretion conferred by law [unbeschadet normativ eröffneter Gestaltungs-, Ermessens- und Beurteilungsspielräume.” The highest administrative court (Bundesverwaltungsgericht) has been even more explicit: “If two or more lawful decisions are possible, Art. 19(4) does not require that the choice among them be made on the ultimate responsibility of the court.” BVerfGE 39, 197 (205) (1971). See also Schmidt-Aßmann, Art. 19(4), in 2 Maunz/ Dürig, Para. Nr. 184–85.Google Scholar

282 See BVerfGE 15, 275 (280) (1963) (“Art. 19(4) provides protection by the judges, not against the judges”); BVerfGE 24, 33 (49-51) (1968) (arguing among other things that the authors of the Basic Law would have used more explicit language if they had meant to overturn the traditional rule against direct challenges to legislation). Administration of the legislature or the courts, however, is subject to Art. 19(4); and the exclusion of statutes from that provision remains disputed. See Schmidt-Aßmann, Art. 19(4), in 2 Maunz/Dürig, Para. Nr. 91, 93, 102; Wassermann, Art. 19(4), in 1 AK-GG, Para. Nr. 37.Google Scholar

283 BVerfGE of Dec. 3, 1951, § 90 ff, BGB1. I, S. 243.Google Scholar

284 As the Basic Law contemplates, the implementing statute requires in most cases that ordinary legal remedies be exhausted before a constitutional complaint is filed, and it permits the Court to decline jurisdiction over complaints that reveal neither a novel constitutional issue nor serious harm to the complainant. BVerfGE §§ 90(2), 93c. Although the constitutional complaint extends only to the vindication of certain specified rights (most particularly those contained in the catalog of fundamental rights in Part I of the Basic Law), those rights include the right to free development of personality, which as the Constitutional Court interprets it includes anything the individual might wish to do and which may be restricted only by a law satisfying all substantive and procedural requirements of the Basic Law. BVerfGE 6, 32, 41 (1957) (Elfes). Thus “every burden imposed on the citizen by the state has become the invasion of a fundamental right,” and thus the affected citizen may invoke the interests of third parties (Judgment of Jan. 28, 1992, Case No. 1 BvR 1025/82, 1992 NJW 964, 965 (not yet officially reported)) and may raise questions of federalism and separation of powers as well. See Klaus Schlaich, Das Bundesverfassungsgericht 10–11, 107–08 (1985); Löwer, Wolfgang, Zuständigkeiten und Verfahren des Bundesverfassungsgerichts, 2 Handbuch des Staatsrechts 737, Para. Nr. 153. Nor is standing invariably restricted to those directly regulated by the challenged action, as it may infringe the rights of others as well. Thus customers have been permitted to argue that a law limiting the hours when stores could be open denied them their constitutional right to make purchases (BVerfGE 13, 230 (233) (1961)), and businesses to raise equal-protection objections to tax preferences granted their competitors (BVerfGE 18, 1 (11-14) (1964)).Google Scholar

285 See, e.g., BVerfGE 1, 97 (100-04) (1951) (complaint attacking statute); BVerfGE 7, 198 (203-12) (1958) (complaint attacking judicial decision); Maunz/Schmidt-Bleibtreu, § 90, Para. Nr. 68. Because a complaint is permissible only if the complainant is presently affected by the official action of which he complains, however, ordinarily no complaint may be filed directly against a statute whose impact on the complainant depends upon some further administrative act; in such a case no right is infringed until that act is taken. BVerfGE 1, 97 (102-03) (1951). Appropriately, however, the Court has recognized that it would be intolerable to require that one violate a criminal statute in order to test its validity; in such a case the enactment of the law itself is held to violate the complainant's rights. See BVerfGE 13, 225 (227) (1961) (entertaining a pharmacist's complaint against a statute that limited his hours of operation); BVerfGE 46, 246 (255-56) (1977) (entertaining a complaint by producers and sellers of margarine against a law regulating the composition of their product: “Under these circumstances the complainants cannot be expected to take the risk of violating the law”). Cf. Steffel v. Thompson, 415 U.S. 452 n.18 (1974): “The court, in effect, by refusing an injunction, informs the prospective victim that the only way to determine whether the suspect is a mushroom or a toadstool, is to eat it.” At the other end of the time scale, the Constitutional Court, like the Supreme Court, is willing to relax ordinary mootness principles in order to assure judicial review of measures whose effect on any individual is normally so fleeting that most cases would otherwise be mooted before a decision could be reached. See, e.g., BVerfGE 49, 24 (52) (1978) (entertaining a complaint against the temporary isolation of imprisoned terrorists after the challenged order had expired); BVerfGE 81, 138 (140-41) (1989). Cf. Roe v. Wade, 410 U.S. 113 (1973).Google Scholar

286 5 U.S. 137 (1803).Google Scholar

287 Incidental judicial review had been found implicit in the Weimar Constitution on grounds reminiscent of Marbury v. Madison. 111 RGZ 320 (1925).Google Scholar

288 See BVerfGE 1, 184 (197-201) (1952) (stressing the duty of every court to examine the constitutionality of each norm it is asked to apply); Löwer, supra note 284, Para. Nr. 66; Schlaich, supra note 284, at 73–74. Cf. the once general requirement in 28 U.S.C. §§ 1253, 2281, 2282 (1948 ed.) (present truncated version in id., §§ 1253 and 2284 (198x)) of a three-judge district, court, subject to direct and mandatory Supreme Court review, to pass upon the validity of state or federal statutes; Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1 (1964). From the first of these justifications for the Constitutional Court's exclusive jurisdiction it follows that other courts may strike down statutes adopted before promulgation of the Basic Law or state laws that conflict with later federal statutes, for in neither case does the decision imply that the legislature has violated its constitutional duties. See BVerfGE 2, 124 (128-35) (1953); BVerfGE 10, 124 (127-28) (1959); Maunz, Art. 100, in 4 Maunz/Dürig, Para. Nr. 12–13.Google Scholar

289 Contrast U.S. Const., Amdt. 11; Louisiana, Hans v., 134 U.S. 1 (1890); Jordan, Edelman v., 315 U.S. 651 (1974). The Administrative Procedure Act's recent waiver of immunity in nondamage actions challenging federal administrative action (5 U.S.C. § 702) rests on legislative grace alone (see United States v. Lee, 106 U.S. 196 (1882)), and it does not apply to suits against individual states. For some of the complex distinctions our Supreme Court has drawn in this unfortunate area, see David Currie, Sovereign Immunity in Suits Against Officers, 1984 Sup. Ct. Rev. 149; Currie, The Second Century, supra note 15, at 568–80.Google Scholar

290 See Hans-Jürgen Papier, Art. 34, in 2 Maunz/Dürig, Para. Nr. 12–13 (noting that Art. 34 not only requires the state to pay whenever the offending official is liable under private law but also contains “an institutional guarantee of government liability” as an important element of the rule of law); Rittstieg, Helmut, Art. 34, in 2 AK-GG, Para. Nr. 7–8.Google Scholar

291 See, e.g., Jordan, Edelman v., supra note 289; Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 39 (1963).Google Scholar

292 Grundgesetz [GG] [Constitution] art. 93(1) Nr. 1, 3, 4 (F.R.G.). In a creative decision involving an analogous state constitutional provision the Constitutional Court concluded that political parties, because of their central role in the electoral process as recognized by Art. 21 of the Basic Law, were entitled to initiate Organstreit proceedings in certain cases. BVerfGE 1, 208 (223-8) (1952). See also BVerfGE 60, 53 (61-62) (1982); Grundgesetz [GG] [Constitution] art. 93(1), cl. 1 (F.R.G.) (extending the Organstreit proceeding to controversies over the rights and duties not only of supreme federal organs but also of “other parties who have been vested with rights of their own by this Basic Law”).Google Scholar

293 See Löwer, supra note 284, Para. Nr. 11, 27–28 (arguing that as a substitute for the use of force the judicial remedy must be comprehensive).Google Scholar

294 262 U.S. 447 (1923) (holding the state without standing to argue that a federal statute invaded powers reserved to the states).Google Scholar

295 See Maunz/Schmidt-Bleibtreu, § 76 Para. Nr. 1; Löwer, supra note 284, Para. Nr. 63.Google Scholar

296 See BVerfGE 1, 208, 220 (1952): “Thus there is no defendant in this proceeding.”Google Scholar

297 BVerfGG § 76, 77. For widespread reservations as to the constitutionality of the former provision in light of the fact that Art. 93 empowers the Court to resolve “doubts” as well as “differences of opinion,” see Maunz/Schmidt-Bleibtreu, § 76, Para. Nr. 50–52.Google Scholar

298 See Löwer, supra note 284, Para. Nr. 63.Google Scholar

299 BVerfGE 1, 396 (400-10) (1952). See Löwer, supra note 284, Para. Nr. 59. Some of the Länder, however, provide also for abstract review of merely proposed legislation, sometimes at the instance of any citizen. See Herdegen, supra note 10, Para. Nr. 49.Google Scholar

300 See BVerfGE 1, 396 (414) (1952) (insisting that the subject of the Court's inquiry was not the complaint but the constitutionality of the law).Google Scholar

301 BVerfGE 79, 311 (327-28) (1989); çf. Roe v. Wade, supra n.285.Google Scholar

302 See BVerfGE 1, 396 (407) (1952); BVerfGE 52, 63 (80) (1979) (upholding the right of a Land government to challenge the constitutionality of a federal law limiting the deductibility of political contributions). Contrast BVerfGG § 64(1), 69; BVerfGE 2, 143 (149-59) (1953).Google Scholar

303 The famous 1975 abortion case, for example, in which the Constitutional Court held the state had a duty to protect the unborn by making abortion generally a crime, was an abstract review proceeding brought by state governments and by the minority of the Bundestag. BVerfGE 39, 1 (1975).Google Scholar

304 See Löwer, supra note 284, Para. Nr. 54; Schlaich, supra note 284, at 68.Google Scholar

305 See BVerfGG § 64(1); 1 BVerfGE 351, 359 (1952); Schlaich, supra note 284, at 49: “By virtue of the standing of party caucuses, the Organstreit has also become an instrument of control by the parliamentary opposition.”Google Scholar

306 E.g., Alfred Rinken, Art. 93/94, in 2 AK-GG, Para. Nr. 105.Google Scholar

307 See BVerfGE 8, 274, 326 (1958) (Preisgesetz) (discussing Grundgesetz [GG] [Constitution] art. 19(4) (F.R.G.)).Google Scholar

308 See BVerfGE 1, 184 (195) (1952). Decisions in abstract and concrete norm control proceedings, as well as those invalidating or upholding statutes on the basis of constitutional complaints, are declared by statute to have the force of law (“Gesetzeskraft”). BVerfGG § 31. This means that they not only bind the parties but constitute, as our Supreme Court said in Cooper v. Aaron, 358 U.S. 1 (1958), “the law of the land.” See Herzog, Art. 94, in 4 Maunz/Dürig, Para. Nr. 19–32. In the United States this conclusion was highly controversial in light of the fact that the judicial power extends only to the resolution of particular cases and controversies (U.S. Const. Art. III, § 2). In Germany it is expressly contemplated by the Constitution (Art. 94(2) GG: “Federal law… shall specify in which cases [the Court's] decisions shall have the force of law”).Google Scholar

309 See, e.g., Rinken, Art. 93/94, in 2 AK-GG, Para. Nr. 85: “Within its jurisdiction the Constitutional Court has a duty to decide.” See also Wasserman, Art. 19(4), in 1 AK-GG, Para. Nr. 29; Schneider, supra note 50, at 451.Google Scholar

310 See Gunther, Gerald, Judicial Hegemony and Legislative Autonomy: The Nixon Case and the Impeachment Process, 22 UCLA L. Rev‥30, 34 (1974). This seems to be all that Chief Justice Marshall had in mind when he disclaimed judicial authority to interfere with “questions, in their nature political, or which are, by the constitution and laws, submitted to the executive.” Marbury v. Madison, 5 U.S. 137, 170 (1803); see Currie, The First Hundred Years, at 67 n.19.Google Scholar

311 E.g., BVerfGE 2, 231 (224-25) (1953) (holding that the question whether there was a need for the exercise of concurrent federal legislative power under Art. 72(2) was “a question for the faithful exercise of legislative discretion that is by its nature nonjusticiable and therefore basically not subject to review by the Constitutional Court”); BVerfGE 4, 157 (174) (1955) (holding that whether a treaty with France respecting the Saarland impeded the integration of that territory into the Federal Republic and thus offended Art. 23 was “a question of political judgment not susceptible of determination as a matter of constitutional law'.'); BVerfGE 25, 353 (361-63) (1969) (concluding 4–4, for want of the majority vote necessary to find the challenged action unconstitutional, that provisions vesting the pardon power in the executive implicitly excepted its exercise from judicial review and adding that there were no judicially manageable standards (“greifbare Maßstäbe”) to apply); BVerfGE 66, 39 (60-62) (1983) (refusing to decide whether the decision to station additional nuclear weapons on German soil increased the danger of war because there were no justicially manageable standards for resolving the question (“es fehlt hierfür an rechtlich maßgebenden Kriterien”) and because the evaluation was committed to other branches of government (“Einschätzungen dieser Art obliegen den für die Außen- und Verteidigungspolitik der Bundesrepublik Deutschland zuständigen Bundesorganen”). See also Schneider, Art. 68, in 2 AK-GG, Para. Nr. 6 (finding the seeds of a political-question doctrine in the Court's deference to the political branches in determining the constitutionality of a dissolution of the Bundestag under Art. 68 (note 47 supra and accompanying text)); Klein, Friedrich, Bundesverfassungsgericht und richterliche Beurteilung politischer Fragen 10 (1966): “Political questions are those for whose decision there are no legal norms.”Google Scholar

312 See Henkin, Is There a Political Question’ Doctrine?, 85 Yale L.J. 597 (1976).Google Scholar

313 See supra notes 219–73.Google Scholar

314 For citations to the extensive literature, see Currie, The First Hundred Years, supra note 15, at 27.Google Scholar

315 Art. 93(2) expressly empowers the legislature to add to the jurisdiction conferred by the Basic Law itself, but not to take it away. See BVerfGE 24, 33 (48) (1968), construing a statute to preclude only constitutional complaints (which at that time were authorized only by statute) and not the abstract or concrete norm control authorized by the Basic Law, in order to preserve its constitutionality: “The legislature cannot by ordinary statute preclude access to a Constitutional Court procedure authorized by the Basic Law itself.” See also Roellecke, supra note 240, Para. Nr. 2. For implicit limits on the power to add to the Court's jurisdiction, see Maunz, Art. 93, in 4 Maunz/ Dürig, Para. Nr. 3.Google Scholar

316 Compare U.S. Const., Art. V (proposal by 2/3 vote of each House of Congress and ratification by 3/4 of the individual states) with Grundgesetz [GG] [Constitution] art. 79(2) (F.R.G.) (2/3 vote of the Bundestag and of the states as represented in the Bundesrat). A single extraordinary majority in the Bundesrat is likely to be easier to obtain than simple majorities in 38 separate assemblies.Google Scholar

317 BVerfGE 30, 1 (23-29) (1970), criticized by Wassermann, Art. 19(4), in 1 AK-GG, Para. Nr. 62. See also Schmidt-Aßmann, Art. 19(4), in 2 Maunz/Dürig, Para. Nr. 30: “Judicial protection of individual rights against acts of public authority basically cannot be excluded even by constitutional amendment.” For German views as to the importance of judicial review in assuring obedience to law, see Hesse, supra note 6, Para. Nr. 202; Maunz, , Art. 100(1), in Maunz/Dürig, Para. Nr. 3. A judicially enforceable Bill of Rights had been a condition of Allied approval of the Basic Law. See Ernst Rudolf Huber, 2 Quellen zum Staatsrecht der Neuzeit 209 (1951). But see Roellecke, supra note 240, Para. Nr. 30 (arguing that an amendment significantly contracting the Constitutional Court's jurisdiction might be consistent with Art. 79(3)).Google Scholar

318 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952).Google Scholar

319 See, e.g., Hesse, supra note 6, Para. Nr. 508, 524.Google Scholar