Tackling Law-Breaking Federal States: Resilient Approach

Suppose a federal state deliberately ignores the law and court rulings. How can such "executive disobedience" be stopped?

To the point:

• Coercive fines: A proposed reform aims to raise the maximum coercive fine for authorities that flout court rulings from €10,000 to €25,000. Under the reform, such fines would no longer remain within the budget of the same public authority against which enforcement is directed.
• Federal coercion: In extreme cases, the federal government may, with the consent of the Bundesrat, take all necessary measures to compel a federal state to fulfil its obligations or act in its stead. This instrument has never been invoked since the Federal Republic was founded in 1949.
• Federal Constitutional Court: The Court determines whether a federal state has violated federal law, employing expedited proceedings where necessary.

When an authority flagrantly exceeds its powers or disregards court rulings, such cases end up before the administrative courts, yet with barely any perceptible effect. An open breach of the rule of law currently carries a maximum coercive fine of €10,000, usually settled by a simple transfer from one unit within the state's fiscal administration to another. Critics argue that any real coercive pressure is, as a rule, entirely absent.

Whether in relation to the delayed implementation of diesel driving bans in Stuttgart and Munich, or the deportation of Sami A., carried out despite a court order issued shortly beforehand, the unwritten principle of the state as an honourable actor - conducting itself in good faith and in accordance with the law - appears increasingly to be losing ground as a guiding principle of executive conduct. A reform of the rules on enforcement in administrative law, proposed by Federal Justice Minister Stefanie Hubig (SPD), is now intended to remedy this situation by granting courts and the federal government greater powers in cases of official misconduct.

Proposed reform to counter "executive disobedience"

According to a report in the Frankfurter Allgemeine Zeitung, the ministerial draft bill envisages three significant changes. The upper limit for coercive fines imposed on authorities that defy court rulings would be raised from €10,000 to €25,000. "Furthermore, the coercive fine would in future no longer remain with the same public authority against which enforcement is directed, thereby removing the incentive for an authority to pay the fine to itself, as it were," explains Sarah Katharina Stein of the Max Planck Institute for the Study of Crime, Security and Law in Freiburg, whose research focuses on the separation of powers.

According to Stein, the third planned measure is likely to prove most effective: courts would in future be able to impose coercive fines on a recurring basis, whether daily, weekly, or monthly. "At present, a one-off sum is negligible in the context of a state budget running into billions; if fines accrue periodically, the political pressure to justify this to the opposition and the electorate will surely rise considerably." The legislation, which also provides for wide-ranging changes to other court proceedings, still has a long way to go before it is enacted.

Legal question: what can the federal government do about obstructive conduct?

Were a federal state to establish a specialised unit for deportations along American lines and deploy it as is done in the United States, the authorities carrying out such operations would be acting unlawfully. German law neither confers the sweeping powers enjoyed by ICE agents nor permits the merger of investigative and enforcement powers within a single authority (more on this: mpg.de/26296670/ice-in-deutschland).

Experts regard this as a case of "executive disobedience": the deliberate disregard of the obligation, binding on all organs of public authority - the public administration, the judiciary, the legislature, and every state government - to act in conformity with law and justice, as required by Article 20(3) of the Basic Law.

Article 20 of the Basic Law (Grundgesetz)

(1) The Federal Republic of Germany is a democratic and social federal state.

(2) All state authority derives from the people. It shall be exercised by the people through elections and referendums and through specific legislative, executive, and judicial bodies.

(3) The legislature shall be bound by the constitutional order; the executive and the judiciary shall be bound by law and justice.

(4) All Germans shall have the right to resist any person seeking to abolish this constitutional order, should no other remedy be available.

Stein is clear on this point: deportations in Germany are a matter for the federal states. The immigration authorities of the individual Länder enforce decisions terminating the right of residence and, as a rule, enlist the assistance of their respective state police forces to do so. Apart from a few exceptional cases, the federal government has no general power to issue instructions in this area. It is not a competent enforcement authority; rather, it exercises legal oversight over the state authorities. That said, it has several options at its disposal.

Remedies against obstructive conduct

"As a first step, the federal government may send federal delegates to the state authorities and, with the consent of the Bundesrat, may do so even against the wishes of the state concerned," explains Stein. The federal government may then formally censure deficiencies and direct the state to remedy them (Articles 84(3) and (4) of the Basic Law). Should the state fail to comply, the Bundesrat may, upon application, issue a binding ruling on whether a breach of the law has occurred. "This ruling carries no direct legal consequences, however; its effect is purely political, and it requires a majority in the Bundesrat," explains Stein.

"As a next step, the federal government could be granted authority by way of a federal statute to issue individual instructions to state authorities," says Stein. Such legislation would, however, require majorities in both the Bundestag and the Bundesrat.

"In addition, the federal government may instruct the Federal Police not to participate in unlawful measures," Stein adds. Although deportations are a matter for the Länder, the Federal Police take over from the point of departure at the airport: they are responsible for escorting the person across the border to the destination country (section 71(3) of the Residence Act). The federal government could therefore instruct the Federal Police not to carry out the removal of individuals who have been apprehended unlawfully. In such cases, the officers carrying out the operation would be required to disregard any contrary instructions, for instance from a state interior ministry.

It is important to note that police officers, whether federal or state, are bound by law and justice and are required to refuse unlawful orders, regardless of which authority issues them. The same applies to the Federal Office for Migration and Refugees in Nuremberg (BAMF): federal authorities may not legally shield or lend support to unlawful state measures. Where Federal Police officers are involved, the federal government in any event has direct authority to issue instructions.

The last resort: federal coercion

In extreme cases, the federal government may, with the consent of the Bundesrat, take all necessary measures to compel a federal state to fulfil its obligations under federal law. This instrument, federal coercion (Bundeszwang), is provided for in Article 37 of the Basic Law. As a result, the federal government could deploy its own personnel to discharge the functions that the state is performing unlawfully. This would make it possible not only to direct the Federal Police to enforce federal law, but also to assume control of constitutional bodies in a trustee capacity and to enact new state legislation. An ICE-style approach could thereby be effectively blocked.

"This instrument has never been invoked since the Federal Republic's founding in 1949, and it requires a majority in the Bundesrat," explains Stein. Should the foundational federal consensus erode, contested decisions could be enforced by means of federal coercion, albeit at the cost of confidence in the established federal order.

The Federal Constitutional Court decides, and can act in expedited proceedings if necessary

Whether a state government has in fact violated federal law or overstepped its competences - for instance by establishing and deploying a task force along ICE lines - is a question that only the Federal Constitutional Court can determine with binding effect. "The federal government may bring a Bund-Länder dispute before the Federal Constitutional Court under Article 94(1) no. 3 of the Basic Law. Should a state create its own legal basis for such a task force by way of state legislation, an abstract judicial review ("abstrakte Normenkontrolle") under Article 94(1) no. 2 of the Basic Law is also available," explains Stein. In both cases, the Court examines whether the state has acted lawfully or unlawfully. In cases involving federal coercion, the affected state may itself initiate such proceedings. Expedited proceedings are possible under Article 32 of the Federal Constitutional Court Act.

Stein also points to a structural weakness: "The Federal Constitutional Court cannot enforce its own judgments. To do so, it requires the cooperation of the federal government or the state itself." Should the state refuse to comply, it once again enters the territory of "executive disobedience". Stein warns: "This is no minor infraction in constitutional law, for the rule of law depends on public authorities upholding the law."

The time factor

Stein also highlights a further drawback: "All these scenarios are rather slow to take effect; they require majorities, and judicial proceedings in particular involve protracted processes."

Civil servants therefore play a significant role. "They are required under the Basic Law and the civil service legislation of the Länder to refuse unlawful official instructions. Anyone who knowingly participates in unlawful deportation measures may face personal liability," says Stein.