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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 empowering the health ministry to enact regulations that potentially deviate from a multitude of other public health laws—such as the approval process for new vaccines—undermines another fundamental principle in Article 80 of the German Constitution: that the actions of the executive—both government and agencies—must be based on statutory authority determining the content, purpose and extent of the powers delegated.
Gärditz and Meinel note that the federal legislature (the Bundestag) moved on this and other recent decisions with exemplary speed, obviating the argument that the normal consensus-building and decision-making processes of parliamentary democracy are nonviable under conditions of an imminent threat. And they warn of overburdening the executive with “a yearning for the authoritarian fist that calculates on the consent of an increasingly panicked citizenry to test the limits of what is sayable and doable.”
The constitutional scholar Christoph Möllers, in a similarly withering analysis, calls this “the most massive collective encroachment on fundamental rights in the history of the Federal Republic of Germany.” In his view, the health ministry’s new powers are both overbroad and overly vague, and their concentration in a single agency “carries the depoliticization of far-reaching decisions to an extreme.”
Still, the revised law corrected health minister Jens Spahn’s original draft in key points: The revisions are in force only for the next 12 months, it is the federal legislature rather than the health ministry that decides on the beginning and end of the state of emergency, and a passage providing for the tracking of cellphones used by citizens carrying the coronavirus was dropped.
This pandemic is also the “hour of the executive” in another significant aspect: The German federal government is currently tearing up its own fiscal rule book in an attempt to save its economy from catastrophe with a package of sweeping measures unparalleled in the country’s postwar economic history—specifically, the measures taken in the context of the global financial meltdown of 2009 pale in comparison. On March 25, the Bundestag passed the most comprehensive set of salvage measures in Europe: an expansion of Kurzarbeit (“short-time work,” whereby the state covers around two-thirds of the forgone wages of workers whose hours are cut), €400 billion ($434 million) in liquidity guarantees for larger firms and direct grants for 3 million small companies and freelancers, totaling around €700 billion ($834 billion)—the equivalent of two annual national budgets. To accomplish this, the government had to invoke an emergency clause to that most sacred of all sacred Teutonic cows: the Schwarze Null (black zero) constitutional debt brake, limiting government borrowing to 0.35 percent of gross domestic product (GDP).
The administration of these measures is already requiring federal and state authorities to ramp up their roles in unprecedented ways. North Rhine-Westphalia, for example, reported getting €2.33 billion ($2.5 billion) in stopgap payments to 225,000 recipients within a week; to achieve this, agencies there—and all over Germany—were working on grant approvals in evening and weekend shifts. This, no doubt, is just the beginning of an all-out effort by the machinery of the executive akin to the postwar rebuilding of the country. And it raises the question of how to preserve the balance of powers—notably, the prerogatives of the legislature—under extraordinary circumstances.
The March 25 Bundestag session was exceptional not just for what it decided but also for how it did so: Chancellor Merkel was quarantined at home, and only a third of the 709 members were allowed to sit in the plenary room, while votes took place in the spacious foyers of the Reichstag building. A quarter of the members stayed away, despite the fact that the rescue package required a vote by the absolute majority of the members. This prompted Wolfgang Schäuble, the president of the Bundestag—as well as a former minister of the interior and the economy, and a member of the legislature since 1972—to write to the heads of all six party groups in the Bundestag to suggest it was time for exceptional measures in order to secure the legislature’s ability to perform its constitutional responsibility of checking the executive.
Schäuble noted that the quorum for votes had already been lowered from 50 to 25 percent, but that he had “heard doubts whether even this [low threshold] was enough” if, for example, very high numbers of members became sick or unable to travel; under the circumstances, he added, it might be time to talk about virtual plenary sessions. He cited a legal memo by the Bundestag’s research service that said this would require an amendment of the Basic Law. Further, he urged the party group leaders to consider the establishment of an “emergency committee,” analogous to the “Joint Committee” of 48 members of the Bundestag and the Bundesrat—the legislative “upper house” representing the 16 state governments—during a “state of defense” under Article 53 of the Basic Law, yet another of the scattershot elements of the “state of emergency” reforms of 1968. Schäuble argued that a smaller entity meeting in person would preserve the deliberative nature of the legislature, a constitutionally preferable measure to virtual meetings or electronic voting.
So far, Schäuble’s proposals have been met with a resounding rejection from the party groups. Their speakers contend that the speed, efficiency and near-unanimity with which the rescue package was passed proves that the Bundestag is willing and able to perform its duties. Whether this skirmish was a one-off or merely a first salvo in a sustained contest of wills presumably will depend on the duration of the pandemic.
On the whole, the dramatic events of the past weeks have demonstrated the resilience, adaptability and vitality of Germany’s constitutional architecture , yet they have also made clear that it now faces historically unprecedented challenges. Incidentally, the judiciary—the third branch of government—has not yet been given an opportunity to intervene in the debate about federalism and the separation of powers in a crisis context. Given the current near-consensus between the government and the legislature on the need for swift action, constitutional court challenges based on a federalism or separation of powers complaint—known as Organstreitverfahren, Article 93, para. 1, no. 1, of the Basic Law—seem unlikely at this early stage. But it is almost certain that at some point Germany’s courts will be asked to review the sweeping expansion of federal executive powers granted over the past month.
In particular, it’s worth keeping in mind that opposition party groups also have standing to bring such a complaint. The far-right Alternative for Germany (AfD), which has been notably faltering of late, mostly abstained—with two yea and two nay votes—on the economic package bill; yet it must be presumed that it will soon be searching for opportunities to confront the government and regain public attention and support.
Infection Protection or Data Protection? “Bio-surveillance” and Privacy Rights
Individuals can, however, bring constitutional complaints—known as Verfassungsbeschwerde, Article 93 of the Basic Law—against legislation or administrative ordinances based on allegations of an infringement of civil rights and freedoms. And the emergency regimes generated by the coronavirus pandemic raise a host of fundamental rights and freedom issues, from the right to life and bodily inviolability to freedom of faith, movement and assembly—to name only a few. A new Wiki website, lexcorona.de, is already recording more than 80 court decisions in lawsuits filed over the measures; almost all, so far, have been dismissed.
But the issue taking center stage in Germany currently is the tension between public health and data privacy. Health minister Jens Spahn’s project of a cellphone-tracking app has gained traction once more as infection and mortality rates continue to rise rapidly and the devastating cost to the economy of a possibly months-long nationwide shutdown becomes increasingly clear.
Chancellor Merkel’s chief of staff Helge Braun, himself a doctor, confirmed that the current end date for the lockdown agreed upon by the German authorities is April 19. But a confidential strategy paper from an expert working group tasked by the interior ministry and leaked to the press in late March—since published in full—contains some alarming assumptions and conclusions, and suggests that the number of infections in Germany still has not yet peaked.
The paper projects a “worst-case scenario” of more than a million deaths in Germany in case of inaction and adds that preventing this is the “supreme strategic priority” while still being a feasible goal. The only solution, the paper says—pending the development of a vaccine or a cure—is through the broadest possible expansion of testing. This approach, combined with the prompt isolation of infected patients, allowed South Korea to swiftly control the outbreak with minimal restrictions on public life. A second scenario, called “stretch case,” would involve much more stringent restrictions on personal freedoms. The price, here, is only 220,000 deaths but a national shutdown lasting seven months and “huge” negative macroeconomic effects. A third scenario, “hammer and dance” (based on the influential article of the same name by Tomas Pueyo), projects a broad-based early testing and isolation strategy leading to around 12,000 fatalities and a state of exception for only two months, with a need for continued vigilance against renewed outbreaks.
A key rationale for this third option is the German economy—a “high performance machine” but also highly vulnerable—which is, as the paper notes, at risk of a “total system meltdown” in the pandemic, “which could return society to a state of anarchy.” The economic worst-case—sketched out in a scenario called “the abyss”—is described laconically as “economic collapse.” The economic best-case, after a rigorous lockdown combined with broad testing and suppression measures, would be a GDP shrinkage of 4 percent—as opposed to 6 percent during the global economic crisis of 2009. It would see case rates go down by the end of April and permit a phased return to economic and social normalcy, with potential interruptions in the case of new flare-ups. It is premised on the ability to test 200,000 cases a day—the current rate is 350,000 tests per week—and efficient location tracking put in place by April 27. Jeremy Cliffe in the New Statesman recently called this the “coronavirus trilemma”: Countries “can pick two of three things but cannot have them all: limit deaths, gradually lift lockdowns, or uphold cherished civil liberties.”
This is the analytical background to the scramble for a cellphone-based location-tracking app enabling public health authorities to reconstruct the social contacts of infected patients. Urgency notwithstanding, the legal hurdles are considerable—so much so that justice minister Christine Lambrecht said they could be overcome only if the need was proved to be “absolutely imperative.”
To understand just how fraught this issue is, it helps to remember that if the EU is home to the world’s strictest data-privacy regime, Germany is probably the member state with the most national rigorous protection rules. In 1983, the German constitutional court (the Bundesverfassungsgericht) derived a “right to informational self-determination” (Recht auf informationelle Selbstbestimmung) from Article 1 of the Basic Law, which states the inviolability of human dignity and the acknowledgement of human rights as “the basis of every community,” in combination with Article 2, which codifies the basic freedom of the person. The particular significance of this derivation lies in the fact that Article 1 is the only other constitutional provision besides Article 20 to be covered by the “eternity guarantee” of Article 79, para. 3.
Yet in Brussels, EU Internal Markets Commissioner Thierry Breton has been pushing for data-sharing. And most European governments are currently racing to develop their own apps, with data regulators largely standing back.
This raises, as Cliffe points out, a host of questions. Just how intrusive does a bio-surveillance regime become? Are governments simply monitoring aggregated, anonymized data to follow population movements—or are they combining it with CCTV footage, credit card information, social media usage or even facial recognition to track individual cases? If individually identifiable data is being collected, can individuals withhold consent? And what degree of state coercion follows?
Spahn’s original draft, according to one media account, envisaged compelling telecommunications providers to hand over all “necessary data” for the identification of “possible contacts of infected individuals” with no administrative, judicial or legislative oversight. Elsewhere, state governments are attempting to pressure public health agencies into handing over data, so much so that Germany’s current federal commissioner for data security and freedom of information, Ulrich Kelber, has added his name to a Europe-wide appeal demanding that “all new measures must pass the test of whether they are genuinely fit for purpose, necessary and adhere to the constitutional principle of proportionality.”
In Germany, the Robert Koch Institute, together with the nonprofit “Pan-European Privacy Preserving Proximity Tracing (PEPP-PT)” has now developed an app that was released on April 7—with the end date of April 19 in mind—based on a model used in Singapore, which citizens could install on their cellphones voluntarily. An Austrian plan to legally require all citizens to download a similar app has encountered broad public criticism. In Germany, it would work by generating a randomized ID number, and would use low-energy Bluetooth frequencies to create a digital logbook of all cellphones the user had been in close proximity to; if the owner tested positive for the coronavirus, the app could automatically send encrypted and anonymized warnings to all other people he or she had been in contact with for the past two weeks that they too should get tested. Most importantly, it would function entirely without communicating personal or location data to the app users’ personal contacts or to the authorities.
A number of German data policy experts, such as the Green legislator Konstantin von Notz, and indeed Kelber himself, have endorsed this new model. To function as advertised, however, it depends on smartphone owners (just short of 58 million out of a total population of 83 million) actually downloading the app and using it. It also requires strict compliance—with the infected person following through and sharing his or her infection status with the app. And the program also expects users to trust in authorities not to abuse their data (the Chaos Computer Club, Europe’s largest association of hackers, has developed a useful set of guidelines by which users can evaluate tracking apps). Finally, it requires testing capabilities large enough for persons informed that they might have been in dangerous proximity to an infected individual to be able to be tested immediately; expecting them to self-quarantine immediately based on suspicion alone may be too much to ask in an individualistic society used to prosperity and freedom. “Technology,” as the science writer Gero von Randow points out, “is not just about hardware or software, ... it’s about behaviors. Innovation is a societal learning process.” He warns that the German case numbers are too high for the app to replace social distancing constraints: “Citizens remain responsible for the greatest learning process of all: exercising self-discipline even when the constraints become harder and harder to bear.”
The Challenge of Preserving Standards in Exceptional Times
So far, the German government’s actions in the coronavirus pandemic mostly have been regarded as remarkably considered, consensus-oriented and carefully communicated; the exceptions—the revision of the Infection Protection Act and individual states like Bavaria jumping the gun with stricter measures—stand out for precisely that reason. Another notable aspect of this unprecedented national situation is the degree of voluntary self-restraint—again, with visible exceptions—that Germans have exercised. Police patrolling Germany’s parks and public squares and telling off those who violate physical distancing rules appear to be doing so with elaborate politeness. As Maximilian Steinbeis, a reliably vigilant critic of governmental transgression, writes: “The authoritarian temptation is there, it’s powerfully tangible—but the liberal counterweight is no less so.”
That may explain why the Merkel government’s actions so far have met with an extraordinary degree of public support. On April 2, a key national opinion poll, the ARD-DeutschlandTrend, found that 63 percent of respondents expressed some or great approval of the government—an increase of an astonishing 28 percent compared to March. Chancellor Merkel’s right-of-center CDU gained 7 percent approval, while Merkel herself tops the personal popularity charts at 64 percent (up 11 percentage points), followed by her Social Democrat finance minister Olaf Scholz at 63 percent (up 17 points), health minister Jens Spahn (up 60 points) and Bavarian minister president Markus Söder (up 58 points).
As for the actual policies, when asked who should make decisions in a severe crisis like the current one, 73 percent of respondents wanted the federal government rather than the states to be in charge. Another 57 percent said they were less or not at all concerned that their rights and freedoms might be infringed upon for a longer duration. Respondents were nearly evenly split, however, on whether they would use a cellphone app to track infections: 47 percent said they would, while 45 percent said they would not.
On April 15, just days ahead of the deadline it had set for the lockdown, and given a recent flattening of the infection curve, the government recommended a cautious, step-by-step loosening: Some shops and schools may open, but physical distancing rules remain in place until early May, and large public events are banned until August 31; harder-hit states like Bavaria may stick to stricter rules. At a point when citizens’ trust in public authorities is crucial, however, the real tests are still to come. Will the rate of infection continue to slow, or whip upward again? Will the government be able to develop enough testing and tracking capability to permit a further loosening of the current constraints? Will it be able to stop the economy from derailing, or at least succeed in mitigating the damage?
It seems almost unreasonable to demand—as the Electronic Frontier Foundation does in a recent paper—that measures affecting individual rights and liberties be based on rational evidence, meet an imperative-need test, and adhere to strict standards of transparency, proportionality, accountability and reversibility. Must these not take second place behind the collective good of ending the pandemic and restoring public health and the economy?
The answer is no—because Germany is not China or Hungary. The challenge of the moment is to balance the preservation of the lives of German citizens and of German democracy. As the sociologist Martin Eiermann writes, these are not incommensurable public goods but instead are “mutually constitutive.” Still, in the rarefied atmosphere of a constitutional court’s deliberations, it might be possible to establish the ideal balance between the two. Yet in the real-world battles that await, the government, private companies and individuals will be making split-second decisions, based on imperfect information, whose outcomes they barely foresee, let alone control. There will be, again and again, moments of chaos, anger and distrust—and a genuine and understandable temptation for the executive to overplay its own lack of actionable information with an excess of assertiveness, as Yuval Noah Harari and others have warned.
Also, such moments of disunity and mistrust are exactly what the populists and nationalists will be waiting for. Strikingly, the AfD has fared badly in the pandemic—the DeutschlandTrend survey cited above has the far-right party stuck at just 10 percent, down from its previous national high of 15 percent. Despite the fact that it is now represented in all state legislatures as well as in the Bundestag, it has been engaged in vicious infighting and has few, if any, credible policy prescriptions to offer. It has, however, proved remarkably resilient in the past, and its strategists have shown their ability to plan and patiently wait for the right moment to strike.
Already, ultra-conservative voices like the retired constitutional law professor Dietrich Murswiek are inveighing against a “failure of politics” and a de facto state of emergency in which civil liberties have been suspended completely and indefinitely—suggesting, in a trope beloved by the hard right, that Germany is already a police state. Götz Kubitschek, the editor of the far-right website Sezession wrote in 2019: “We have nearly all we need for a political turning point in Germany … voters, anger, the contours of a program, representatives … when the next colossal reality shock hits the Germans, there will be a much better and bigger catch basin for the anger than four or five years ago.”
So what is at stake in this pandemic crisis for Germany’s constitutional order? Its legal architecture appears to be remarkably shock-proof 75 years after the end of World War II; when things return to normal, that might provide Germans with the confidence to modernize and clarify the constitutional rules for a state of emergency. The executive and the legislature, the federal government and the states, are all making heroic efforts to contain the pandemic and limit the economic damage at the same time, apparently with the support of most citizens. It is too early to say whether all this will or should result in a permanent centralizing shift toward the federal executive. But measures taken in the heat of a catastrophe have a tendency to outlast their origins. If so, this will require a proportional rebalancing, with greater oversight for the legislature and the judiciary.
Meanwhile, for the duration of the crisis, preserving a process of decision-making that is evidence based, deliberative and respectful of constitutional standards is essential to maintaining the legitimacy of state power—particularly when the state exercises coercive authority. The presence in parliament of the AfD, which aims to overturn and replace Germany’s postwar constitutional order, makes such caution all the more imperative. The greatest of care must be taken not to make changes to the system now in a way that could facilitate their work later.