German Federalism

Class 10

Sept 22 2008

Separation of Powers

• Compare Germany with other constitutional systems

Separation of Powers

•GAnd an ewaltenteilung – separation of powers (Art. 20(2) GG)

• The Basic Law allocates different tasks to legislature, executive and judiciary]

• Certain institutions are delegated as legislative (e.g. Bundestag and Bundesrat), executive (Bundespräsident, Federal Government) and judicial (Federal courts, including Bundesverfassungsgericht (Federal Constitutional Court))

Bundestaat• Federal State (Art. 20(1) GG).• The decision to make Germany a federal state was

grounded in historical experience; it was an attempt to prevent a repeat of any government similar to the centralized Nazi dictatorship.

• Art. 30 gives the Federation powers only where specifically enumerated, although through amendments to the GG there has gradually been a shift in the balance of power toward the Federation.

• The fear of a centralized German state leading to dictatorship led the drafters of the GG to limit the legislative powers of the Bundesstaat to situations specifically enumerated by the GG> In some cases the Bundestaat’s power to legislate is exclusive, in others, concurrent, with the lander and sometimes it has the power to pass skeleton legislation.

Bundestag: As 38-48 GG• Highest constitutional organ in Germany and one of 2

chambers of Parliament.• Legislative body directly elected by the German people• 614 Representatives now: they serve a 4 year term• The electoral system is a combination of proportional

representation and direct election – this mixed system was designed to ensure that there are not too many minority parties in the Bundestag, because situation this had assisted in the rise of National Socialism in the Weimar Republic.

• Mixed member proportional system: Electors cast 2 votes: one for member from his/her constituency, and the second for the Land list (majority/proportional voting) 299 constituency 299 party 16 overhang

• Elects Chancellor (Arts. 63, 67 and 68 GG)

Political Composition of the Bundestag

• When was the last Bundestag election? • How many political parties have seats? Which

parties? What percentage of members? • Note – to obtain representation in the

Bundestag, it is necessary for a party to have at least 5% of the Land list votes and win seats in at least 3 constituencies.

Bundestag: last election Sept 18, 2005

Upper House of German Parliament: Bundesrat As 50-53

GG• What does it do? Compare it to the

Australian, Canadian, and United States Senates

Current Chancellor: Angela Merkel (CDU)

• Ossi background• Chairman of CDU since

2000• Protestant• Nickname “Iron Lady”

(invoking Margaret Thatcher)

• Became Chancellor in 11/2005 after a deal following 9/2005 Grand Coalition CDU/CSU/SPD

Eternity Clause

• How does it safeguard federalism?

• Other safeguards: federal comity, appointment of judges

Residual Powers

• A 30, A 70

• Compare to U.S. and Canada

Federalism Reform

• 2006

• Grand Coalition

• A 71, 73 exclusive powers

• A 72, 74, 74a concurrent powers

• A 75 framework powers

• A 91a

• A91b

Interpretation by FCC

• How broadly has the FCC interpreted federal power in Germany? Compare to US and Canada

• How is FCC’s interpretation attributable to Bundesrat, if at all?