COVID-19 Is a Severe Test for Germany’s Postwar Constitution

On March 22, in response to a stark reassessment of the risk of infection with the novel coronavirus and skyrocketing increases in case numbers, Germany finally took drastic measures. Chancellor Angela Merkel—who only days before had emphasized her reluctance to issue an ultimatum and appealed to Germans’ sense of responsibility—declared that she had agreed with the minister presidents of the 16 states on what at the time amounted to a two-week nationwide lockdown. These measures, she said, were no longer just recommendations: “They are rules.”

Yet—in contrast to admiring coverage in English-language media—many in Germany have criticized the government’s response as dangerously slow, hampered by public bickering among mayors, state leaders and the federal government over who is in charge. While the mayor of Berlin insisted that soccer matches needed to go ahead, the minister president of Bavaria jumped the gun and declared a statewide emergency, angering his peers who were still discussing a coordinated approach. All this has reopened a debate about the strengths and weaknesses of Germany’s federal constitutional order under conditions of a national catastrophe.

This being Germany, the country’s turbulent history is never far from public consciousness: Memories remain vivid of the Weimar Republic, the national socialist-ruled Third Reich, followed by a country divided until 1990 into two states— one democratic, but with limited sovereignty, and the other under communist rule. Uniquely in the Western world, Germany’s present-day constitutional architecture was born out of the ashes of a manmade catastrophe inflicted both on Germans and on the rest of the world. So debates about the constitution’s fitness for current or future challenges raise a very specific frisson.

Yet the contemporary political context is also very much present in Germans’ minds: Chancellor Merkel’s fourth and final term ends in the fall of 2021. Her heir presumptive, Defense Minister Annegret Kramp-Karrenbauer, resigned suddenly as leader of Merkel’s Christian Democratic Union (CDU) in February. At least two of the minister presidents (the equivalent of state governors) are declared or potential candidates for the succession: Armin Laschet of North Rhine-Westphalia and Markus Söder of Bavaria. Health Minister Jens Spahn has subordinated himself as Laschet’s number two; but for him too, this crisis is a highly public opportunity to prove his leadership abilities. Another declared candidate, businessman and former legislator Friedrich Merz, has just returned from a two-week quarantine after being diagnosed with a coronavirus infection. The contest over the next leader of the CDU was to have been decided at a special party convention in April that has now been postponed indefinitely. As a result, leadership battles and crisis management are now inextricably entwined.

Typically, responding to ordinary infectious disease outbreaks such as the yearly flu falls under the jurisdiction of local governments in Germany. The pandemic, which disregards any and all borders, is now threatening to overwhelm not just local public health authorities but also the life of the nation in a way not seen in Germany since—as Chancellor Merkel herself poignantly said in a rare and unscheduled televised speech—the end of the second world war.

It is also the severest test so far of the country’s postwar constitutional order, urgently raising at least three fundamental issues. First, does the German constitution (the Grundgesetz, or Basic Law) give the federal government emergency powers to act? Second, is German federalism suited to handle the current moment effectively—and can the separation of powers between executive, the legislature and the judiciary be maintained? And third, how can the government square civil rights and data privacy with the necessity of using surveillance to counter the virus?

“Slow Motion Natural Catastrophe”: Emergency Powers in a Pandemic

Could the German government formally declare a state of emergency during the coronavirus crisis, as France and other countries have done? The bitter legacy of National Socialism (or Nazism) means that the question of the legitimacy and legality of emergency powers remains a political minefield in modern-day Germany. The emergency clause in Article 48 of the Weimar Republic’s constitution allowed successive governments to override the legislature with emergency ordinances, destroying public confidence in parliamentary democracy. President Friedrich Ebert, a Social Democrat, used the clause 136 times alone during his tenure from 1919 to 1925; by the end of the decade, the clause was in near-permanent use to overcome legislative blockades. In 1933, the Decree for the Protection of People and State enabled Adolf Hitler to effectively put Germany under martial law without ever having to revoke the constitution, setting in motion a reign of terror that culminated in the second world war and the Holocaust.

As a result, when the West German Basic Law was enacted in 1949, an emergency powers clause was deliberately omitted. With the beginning of the Cold War and West Germany’s entry into NATO in 1955, drafting began—with the support of the allies—on potential constitutional amendments. Despite major student protests, several provisions for “external” and “internal” states of emergency were added in 1968. To this day, they have never been used.

The “external” emergency (Articles 115 a-i) is intended to cover the case of an armed attack from outside the country’s borders, obviously not applicable in the current situation.

The “internal” emergency is regulated in Articles 35 and 91. Article 35 allows the federal or state governments, in case of a threat to public order or a natural disaster, to call in the federal police or the armed forces for support. Article 91, para. 1, permits a state to do the same—and to ask for the use of another state’s civil service—in case of a “threat to the existence or to the free and democratic constitutional order of the federal government or one of the states.” Article 91, para. 2, sentence 1, adds that if a state is “unwilling or unable to combat the threat,” the federal government can assume control over the state’s police or deploy the federal police. And sentence 3 concludes that in cases where the threat transcends state borders, and inasmuch as necessary, the federal government may “give instructions” to state governments.

Two German constitutional experts, Pierre Thielbörger and Benedikt Behlert, have argued—quoting one of Germany’s best-known virologists, Christian Drosten—that the coronavirus pandemic is a “slow motion natural catastrophe,” meaning that the federal government is entitled to invoke a supraregional catastrophic state of emergency under Article 35.

Yet Thielbörger and Behlert also point out that the wording of Articles 35 and 91 is woefully inadequate for the current situation because of the limited focus on certain tools of executive power—including the police and civil service—and the extremely high threshold necessary to trigger federal intervention rights. That is, for the federal government to intervene, there must be a threat to the existence or constitutional order of the state.

Maximilian Steinbeis, editor of the well-regarded Verfassungsblog website, aptly concludes: “The emergency constitution in the Basic Law, an overgrown cemetery of supposedly dead constitutional letters that has been slumbering undisturbed for half a century, has abruptly been shaken awake by the crisis—and, as it turns out, isn’t much use in the current situation.”

All three authors advise that Germany should—when the country returns to normal—examine this experience and revise the emergency powers rules in the Basic Law to include pandemics. But it appears highly unlikely that any such effort will be undertaken during the crisis itself.

The Hour of the Centralizing Executive? Federalism and Separation of Powers

That leaves Germany’s authorities to make do with the powers granted to them by the existing constitutional framework. The pandemic touches on two key “state ordering principles”: federalism and the separation of powers. Fundamental to the postwar German constitutional order, both principles are listed in Article 20 of the Basic Law; this means that they enjoy the special protection of Article 79, para. 3 (the Ewigkeitsgarantie, or eternity guarantee), which states that amendments to Article 20 are impermissible even with a supermajority. Nonetheless, as in any living constitution, these principles are not, as it were, carved in stone: They are best understood as a connected system of perpetually contending power centers, along the lines of what James Madison describes in Federalist No. 47.

Germany’s federalism is different from that of almost all other federal states—for example, the United States or Canada—in that the vertical division of labor between the federal government and the states is functional, rather than issue based: The federal government legislates, and the states execute the legislation. As in America, the power tension between the federal government and the states has created a permanent rivalry, though one that is often productive: States and local governments compete with the federal government in developing new policies and politics. Despite the fact that German federalism has roots dating back to the Holy Roman Empire, and was powerfully reinforced in reaction to Nazi totalitarianism, over the past decades the states have waged a mainly losing war against Berlin. Egregious failures recently to coordinate between states on issues such as counterterrorism—in the Anis Amri case—and counterextremism—including attacks by right-wing extremists on immigrants, Jews and state officials—have strengthened the case for centralization of police powers.

The coronavirus pandemic is now the newest battleground in the power competition between state and federal governments. The relevant statute governing dangerous infectious diseases is the federal Infection Protection Act (Bundesinfektionsschutzgesetz) of 2001, which gives the states—and local governments—front-line responsibility for threat prevention and maintenance of public order, leaving only a minimal coordinating role for the federal government and the Robert Koch Institute, the federal agency and research institute responsible for disease control and prevention.

When the pandemic began to emerge in late January, Germany thus had not one but 16 preparedness plans, most of them out of date. As the states scrambled to put the necessary measures in place, a bizarre patchwork of dos and don’ts emerged, confusing the public and authorities alike; the tiny city-state of Bremen, for example, won’t let citizens go to a bookstore, but it will allow them to demonstrate publicly against that prohibition.

As it became clear that this situation was untenable, and that the constitutional emergency provisions were not applicable, Chancellor Merkel and the states agreed to ask the legislature to give the federal government broad powers in managing the epidemic. The revised Infection Protection Act, enacted on March 27 as part of a massive legislation package that included €750 billion ($834 billion) in state subsidies for the economy, permits the federal government to declare a national emergency in case of an “epidemic situation of national significance” (Paragraph 5) for a period of 12 months. It gives the health ministry the power to mandate identity and health checks at the borders, to enact regulations “for the preservation of health care[,]” and to recruit and deploy medical personnel.

Two law professors, Klaus Ferdinand Gärditz and Florian Meinel, argued that this revision effectively allows the declaration of a state of emergency based on statutory law—a problematic lowering of the constitutional threshold for the triggering of such exceptional powers. Their other concern with the revised law is that broadly empowe

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