Does Germany need a political questions doctrine?

CormacCormac Mac Amhlaigh

The German Federal Constitutional Court’s (GFCC) recent decision on the (il)legality of the ECB’s bond-buying practices is the latest in what can only by now be described as a slew of cases from the Court since its 2009 Lisbon decision on questions which involve the German basic law but have an arguably disproportionate reverberation across Europe and particularly the European integration project. In fact, the OMT the decision itself, whereby the Court expressed doubts about the legality of the ECB’s bond-buying practices, but before making a definitive determination on the question, made a preliminary reference on the question to the CJEU, in a sense represents the making good on previous promises by the Court in Maastricht, Lisbon and Honeywell, where it threated to monitor the activities of the European institutions to ensure that they did not stray beyond the powers bestowed upon them in the treaties, and thereby vicariously break the German Constitution, (Maastricht and Lisbon) but would make a preliminary reference to the CJEU for its input into whether the activities of EU institutions are lawful before making a final determination on the point itself. (Honeywell)

The OMT decision has attracted much commentary and criticism in both the media and the blogosphere which I will not add to it here. Nor will I try to predict the future as to what Luxembourg’s response will be, nor Karlsruhe’s response to Luxembourg’s response (although it will be interesting to see what Luxembourg makes of a preliminary reference from a national Court which comes with a threat to ignore its opinion attached).  Rather, this latest case in the recent slew, and the occasion of the first preliminary reference from the GFCC in the fifty plus years of European integration, gives occasion, I think, to critically reflect upon the Court’s approach to politically sensitive issues involving the European integration process. 

To a student or teacher of British constitutional law, with its (however threadbare) doctrine of parliamentary sovereignty, one never ceases to be amazed by the extent to which the GFCC gets its hands dirty by wading into the heart of German political life, adjudicating upon high-profile and sensitive political issues such as the conduct of German foreign policy and the management of security threats, to the point of second-guessing the activities of the executive and legislature.  This fearless attitude to the separation of powers has resulted in some remarkable decisions in the past (see Franck for an excellent overview), and some, quite frankly, dubious political theory on the part of the court which was on full display in its Lisbon decision.    However, what stands out is the fact that Court seems to unquestioningly assume the propriety of its activities and the complete absence of any doctrine or criteria to filter out particular controversies which may be judged too politically sensitive for the Court to make a ruling.  Courts in many (if not most) other jurisdictions, tend to side-step heavily political matters through the savvy use of admissibility requirements such as rules on locus standi or the development of judicially fashioned doctrines on ‘political questions’ or justiciability.

These filters are almost completely absent in German constitutional doctrine which is showcased in respect of its rulings on European integration.  With regard to questions of standing to avoid deciding particular issues, the GFCC has long held that, at least on questions of the transfer of powers to EU institutions, that the right to vote contained in Art. 38 of the basic law constitutes a portal through which the activities of the European institutions, including the EU courts, can be monitored and scrutinized.  For the Court, the right to vote includes the right of citizens to “have a transfer of sovereign powers only take place in the ways envisaged, which are undermined when there is a unilateral usurpation of powers.”  Through making this link, the Court has put itself in a position of maintaining a watching brief on the activities of the EU institutions, including the CJEU, to ensure that they do not step out of line. 

On the more substantive point of justiciability, many constitutional courts avoid directly adjudicating on politically sensitive matters through the development of specific doctrines which, regardless of whether the applicants have standing, allow Courts to avoid a determination of the issue on the grounds that the subject-matter of the dispute is not amenable to adjudication by a Court due to the inherent limits of the legal and adjudicatory process and therefore is better left to one of the other branches of government as well as for considerations of democracy and legitimacy.  There are a number of formulations and modalities of justiciability doctrines, such as the  European Court of Human Rights’ margin of appreciation (at least in some of its forms), and the US Supreme court’s (however imperfect) ‘Political Questions doctrine’ laid down in Baker v. Carr.    Germany, famously, has no such doctrine.  As Thomas Franck strikingly notes, in Germany “nothing done by government is beyond judicial review.” (110.). This is not to say that in examining the substance of political issues, the Court doesn’t defer at times to the other branches on specific issues involving in fact-finding or decision-making, it does, but what it does not do is determine, as a preliminary issue, whether the subject-matter is such that it is not appropriate, for practical or democratic reasons, that a court be seized of a particular dispute.  The result is the long and at times tortuous reconstruction of political events and scenarios by the Court (of which the OMT judgment itself is a clear example), before a determination of whether the impugned acts violated the basic law or not.

The most obvious explanation for the lack of some sort of a political questions doctrine in Germany is its peculiar interpretation of the rule of law (essentially an absolute rule of law) stemming from the politico-cultural milieu out of which the Court emerged in its current form in the postwar era.    Notwithstanding this historical and political context, as well as the fact that the Court has tended to ride high on a wave of popular public opinion (it is frequently remarked that that it is more popular with the public that the representative institutions put together), in the light of the Court´s latest foray into matters where other courts would fear to tread, it is worth examining the normative and practical consequences of the Court’s activities and associated risks, in short posing the question, does Germany need a political questions doctrine?

Normative Questions

The normative rationale for political questions doctrines relate primarily to the question of whether Courts and judges can legitimately claim a higher authority to resolve particular political disputes than the other branches of government and can be broken down into the (limited) capacity of judges, the (limitations of) the legal process and the weak democratic legitimacy of judges deciding politically contentious issues.

With regard to the first point, political questions doctrines presuppose that judges suffer from epistemic deficits regarding certain complex and fast moving political situations.  Judges’ expertise in the law does not necessarily lend itself well to expertise in security risk analysis, international relations, economic governance, resource allocation or monetary policy.  Questions of the reliability or credibility of security threats, the conduct of international relations or the optimal allocation or distribution of resources tend to severely test the expertise of the judiciary and as such political questions doctrines operate to allow courts to defer to expertise of the other branches of government in such areas.

Secondly, legal process tends not to lend itself to many aspects of governing.  It is slow and selective in the information it uses to make decisions according to the law.   It is, therefore, not generally suitable for decision-making in fast-moving political situations which require analysis of wide-ranging and complex information which can be of relevance to manage uncertainties which can have important consequences.  Governing, particularly in response to emergencies, frequently trades in uncertainty, whereas the law always presumes certainty, however simplistic or unrealistic.  Thus, in respect of situations which require specific outcomes such as the avoidance of harm to the public or the prevention of economic collapse, the legitimacy of the legal process as a method of addressing such issues is generally low.

Finally, the legitimacy of judicial decision-making is generally problematic where the subject matter in disputes can be described as political in the sense of allowing for no easy resolution or ‘right answer’.  If politics is about disagreement, then those areas around which disagreement is most intense, including moral issues and much of the conduct of foreign policy, are generally best left to institutions such as legislatures which better reflect the majority view in society than courts.  In such matters, a judge knows no better  whether abortion is right or wrong or how to promote an ethical foreign policy  than the average citizen, lawyer, politician or academic.   This dimension of a political questions doctrine receives particular support from recent republican political theory, and particularly the work of Richard Bellamy.  For Bellamy, the judicial rather than legislative resolution of such political conflicts, necessarily results in arbitrary rule due to the fact that Courts in such cases ‘willfully […] exercise […] interference over others, or in other ways […] ignore or override their opinions and interests’. (151), where the ‘interest and opinions’ are expressed through individuals’ elected representatives.   As such, ‘the winning majority on the court is imply imposing its opinion over everyone else’s because of their status as members of a constitutional court’ (166).  In short,

‘[g]iven their freedom to interpret the law in diverse and inconsistent ways, according to the moral and legal positions they hold, with no more authority than any other legal interpreter apart from the mere fact that they are in a position to impose their opinion, [the rule of judges] cannot be other than arbitrary and hence dominating’. (166-7)

Thus, apart from the functional considerations which underpin political questions doctrines involving the lack of expertise and the epistemic deficits of the judiciary, republican theory also provides a particularly powerful normative democratic support to the use of political questions doctrines  where the issue at hand is not subject to purely objective or ‘scientific’ determination.

In this light, then, the recent activities of the GFCC, as exemplified by the OMT decision, create problems for the Court on a ‘political questions’ approach.   With regard to the functional question of expertise, no matter how much research goes into judicial opinions, their expertise in law cannot meet the required expertise in political, foreign, economic, monetary or fiscal policies necessary for the economic governance of a transnational monetary system in crisis.   Secondly, the use of a legal process such as a constitutional complaint is hardly conducive to legitimate governance of monetary and economic crises, and the assessment of the activities of central banks.  As Justice Lübbe-Wolff argued in her dissent in the OMT decision, “How Bundestag and Federal  Government are to react to a violation, martial or non-martial, of  German sovereign rights is a question that cannot reasonably be answered  by rules making certain predetermined positive actions mandatory.  Selecting from the variety of possible reactions, which range from  expressions of disapproval to an exit from the Monetary Union, can only  be a matter of political discretion”,  which does not involve a legal and judicial process, one might be tempted to add.

Finally, the legitimacy of the Court second -guessing the will of a democratically elected government and legislature is seriously questioned by the OMT decision from a republican democratic perspective.  Firstly, as is clear from the decision itself, the question of whether, in making its commitment to do ‘whatever it takes’ to stem the euro-crisis actually constitutes an unlawful foray into economic policy by the ECB under its powers under the European treaties, is not scientific.  As most economists will admit, economic policy is a remarkably inexact science, and as such, does not lend itself well to certain “truths” about the activities and aims of central banks which the GFCC seems to claim in the decision.  Even the relatively discrete questions of whether the ECB had unlawfully strayed from monetary to economic policy in breach of the treaties fails to yield a ‘scientifically valid’ answer given the imprecision and contestation surrounding these ideas.  This contestation and imprecision was evident within the Court itself with Justice Gerhardt, (in the minority, itself evidence of the political nature of such classification) arguing that “Monetary and economic policies relate to each other and cannot be strictly separated.  In an overall assessment, it seems to me that the claim, that the objective of the OMT Decision is first and foremost the re-establishment  of the monetary transmission mechanism, cannot be contradicted with the  unequivocalness to be required.”   Such ‘unequivocalness’ speaks to the emphatically unscientific nature of the resolution of the dispute. The majority’s attempts to argue otherwise are therefore essentially politics and masquerading as (legal) science.

Whatever the rights and wrongs of the majority versus the minority opinion on this question, what it reveals is that it remains a particularly sensitive and vague political question, whose resolution is arguably best left to political institutions, notably the Bundestag and Bundesregierung due to their greater democratic credentials and superior claim to better reflect the majority view in German society on these questions.  Angela Merkel’s own democratic credentials and claims in this regard can hardly be in doubt on the OMT question, given her support of the ECB’s bond-buying activities to stabilize the euro back in 2012 as well as the CDU’s convincing victory in the Federal elections last year.  As such, her management of the euro crisis has tangible popular support as expressed in actual election results, something which the GFCC cannot claim.

As such, then, given that the members of the GFCC cannot claim any higher epistemic advantage vis-à-vis others in German society on these questions, not least the democratically elected government, then, its attempts to authoritatively settle these questions through judicial fiat in the OMT decision can be interpreted as a form of domination of German citizens on a republican metric. 

Practical Risks

There are also practical risks with the lack of a political questions doctrine in German constitutional law which are again revealed by the GFCC’s forays into the legality of the activities of the European institutions in its recent decisions.  The most obvious is the potential to spark a constitutional crisis.  It is not unforeseeable that the German government could view the Court’s view post OMT-reference as causing more problems than it solves – that a treaty change, for example, would be importune and too politically risky, or that German withdrawal from the euro too catastrophic for the integration project that it ends up ignoring or defying the Court.  This could create a serious political crisis in Germany, the only certain outcome of which would be damage to the role and reputation of the GFCC.

The second practical risk relates to the Court’s reputation in the German constitutional system.  The Court has frequently, after tortuous analysis, provided the government with the go-ahead to do what it was going to do anyway, most famously in the ratification of the Maastricht and Lisbon treaties, albeit with some incidental procedural chair shuffling prescribed in the process.  The OMT decision has already raised accusations in the media that the Court does not have the courage of its convictions in scrutinizing (and where necessary thwarting) the activities of the government in its conduct of EU policy, it is all ‘bark’ and no ‘bite’.  If this perception becomes commonplace, it could become the ‘court that cried wolf’, no longer taken seriously as the scrutinizer of the constitutionality of government policy, a mere ‘rubberstamping mechanism’ for the government policy of the day which itself would be a loss for German constitutional democracy and particularly the rule of law.

The final practical risk for the Court in getting involved in political questions in the absence of a political questions doctrine is that it finds it has its wings clipped in a constitutional amendment which either creates a political questions doctrine on terms not of the Court’s choosing or, more dramatically, finds that it has been stripped of some of its supervisory powers.  This is clearly a ‘nuclear’ option, however it is not as outlandish or improbable a scenario as may first appear, having been touted in political circles in the recent past with regard to the Court’s involvement in the euro crisis.

In the Court’s defense, its rationale for an expansive test for standing for hearing complaints in EU related cases as well as its lack of a political questions doctrine is that it is concerned with respect of the rule of law, democracy and individual rights protection which may not otherwise occur in the dash for further integration. However, these assertions are not unproblematic and there are alternative, less risky, methods to achieve these values.

With regard to the rules on standing, the problem with taking such a broad approach to the right to vote in Art. 38 and linking it to the scrutiny of the vires of the European institutions, is that the justification of this link can be turned back on the court itself.   As noted, the rationale for the scrutiny of the EU institutions is that if they do not act specifically according to the powers conferred upon them by national institutions, particularly legislatures, then the right to vote under the basic law is rendered illusory.  This is due to the fact that, given that the powers of national representative institutions, which German citizens populate through their right to vote, are potentially ‘hollowed out’ by the transfer of powers to the EU, then citizens lose control over the determination of national government policy.  A way of countering this, the court has reasoned, is to ensure that the EU institutions exercise their powers according to the terms of the surrender of such power, that is according to the Treaties, which the court itself will ultimately interpret.     Turning this rationale back on the Court itself, it could be argued that the determination of national policy through elections through the right to vote can be undermined where the powers of the representative institutions are undermined or thwarted by the activities of an unelected Court, undoing the work of these institutions, or dictating to them how such policies should be pursued.  In this regard, republicans such as Bellamy see a particular irony in bodies which hold no democratic mandate claiming to uphold democracy.

Furthermore, it is not clear that the constitutional complaint process and the court’s EU-related decisions which ensue are necessarily the best way to achieve the GFCC’s aims in cases such as the OMT decision.

 Audi alteram partem

 The Court’s concerns about the rule of law, and also its broader concern with the activities of the European institutions is genuine and legitimate.  The EU’s institutions already suffer from legitimacy problems and these can only be exacerbated by their flouting of the rules of the treaties, which in certain cases, such as the ECB’s, seem prima facie, quite clear.  However, there are other ways of keeping the EU’s institutions in check, most notably through political enforcement.  For example, if it is of serious concern that the ECB is acting outside its remit, the German government, and indeed any other EU Member state could pursue this through political channels, or where necessary, in an action against the ECB before the CJEU, a quasi-political judicial procedure.  This was specifically envisaged in Justice Gerhard’s dissent where he argued that “The Bundestag could readily have criticised the OMT Decision by political means, threatened, if necessary, to bring proceedings for annulment before the Court of Justice of the European Union, waited for the reactions of the European Central Bank and the financial markets and then taken further steps.”

The political enforcement of EU rules is relatively common feature of the European integration process and has its advantages as Germany discovered when it itself flouted the rules on the excessive deficit procedure in stability and growth pact in 2003.  

Such scrutiny, monitoring and, where necessary, enforcement of EU rules by political institutions and means is arguably more suited to the dynamic nature of crisis politics such as that affecting the Eurozone as well as enjoy more enhanced democratic legitimacy.

For a German Political Questions Doctrine

There are no easy answers to the complex questions raised by the Euro-crisis.  The EU has long suffered from legitimacy crises which include problems with its democratic credentials, and the euro-zone crisis and its aftermath have arguably exacerbated these problems.   However, the normative and practical problems and risks with the GFCC’s activities in the light of European integration arguably do little to help the difficult questions posed by these events as well as the securing of particular constitutional values including those contained in the basic law.  Constitutional government always involves a balance between law and democracy and part of the job of the different branches of government is to maintain that balance.  However, in attempting to prevent the ‘tyranny of the majority’, we must be sensitive to the risks of a well-meaning ‘tyranny of a minority’; and a particularly exclusive minority at that (whether they sit in Karlsruhe or indeed Frankfurt).  A German political questions doctrine would arguably go a significant way in avoiding either outcome.

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