In Germany, as in the United States, the interface between politics and constitutionalism often complicates the role of political majorities in making public policy. The most recent example of this interface is the unseemly clash over Brandenburg's divided vote on a controversial immigration bill in the Federal Council or Bundesrat, the legislative body that represents the German states at the national level. The constitutionality of this vote is being challenged by Christian Democrats, the minority party. If the dispute makes its way to the Federal Constitutional Court, as threatened, a technical argument over voting procedure could well undermine an historic reform in German immigration policy.

The fuss is over a matter of constitutional interpretation that could have a serious impact, not only on the shape of German immigration policy, but also on the forthcoming national election campaign. The episode started with the passage of a liberalized immigration bill - a landmark in German legislative history - in the popularly elected branch of the national legislature, namely the Bundestag. Introduced and championed by the governing Social Democratic-Green coalition, the controversial bill passed over the stiff opposition of Christian Democrats. But Germany is a federal republic and, accordingly, this bill, like others involving vital state interests, constitutionally requires the Bundesrat's consent.

In Germany's federal system, unlike the American brand, the sixteen states are corporately represented in the Bundesrat. Each state, depending on its population, claims a certain number of votes, ranging from three to six, and these votes, according to Article 51 (3) of the Basic Law, must be cast "only as a block" (nur einheitlich) and only by members of the government who are present in the Federal Council at the time the votes are cast. But most states are governed by coalitions. This means they are disabled from casting their votes "as a block" unless the political parties in the governing coalition are in agreement. Barring an accord, a state would normally abstain from voting.

Brandenburg's four votes were needed to win 35 -- a bare majority -- of the Bundesrat's 69 votes. But the state is governed by a Social Democratic-Christian Democratic coalition -- the only such coalition among the state governments -- in which the two parties were deeply divided over the immigration bill. Confronted with this situation, the Bundesrat's presiding officer, the Social Democratic Mayor of Berlin, Klaus Wowereit, did not ask the state for a block (einheitlich) vote; instead, he called upon a delegate of each party in the coalition for his vote and the answers were, respectively, "yes" and "no," following which the state's Social Democratic Prime Minister, Manfred Stolpe, responded "yes" on behalf of the state as a whole, whereupon the chair ruled that Brandenburg had consented to the bill, resulting in its approval by a 35 to 34 vote, a procedure that in turn triggered indignant cries of foul play among Christian Democratic leaders inside and outside the Bundesrat. Social Democrats responded by accusing Christian Democrats of bombast and sour grapes.

It was an exciting piece of political theater. But the political stakes were also high. Chancellor Schröder was in desperate need of a victory on the sizzling matter of immigration reform, in part to keep Edmund Stoiber, Bavaria's savvy Christian Democratic Prime Minister and candidate for Chancellor, from exploiting the issue in the forthcoming campaign. German newspaper accounts had Schröder pulling out all stops to pressure Brandenburg into voting for the immigration bill, even over the reported doubts of Prime Minister, Manfred Stolpe. On the other hand, these pressure tactics, such as they were, risked the collapse of Brandenburg's coalition government, raising the possibility of a Social Democratic coalition with the Party of Democratic Socialism, the successor to the old East German Communist party, a result that would hand Stoiber a devastating campaign weapon.

The scene has now shifted to Germany's Social Democratic President, Johannes Rau, whose signature is necessary if the bill is to become law. For him the situation is delicate. As President, he could demonstrate his independence from the pleas of his own party by refusing to sign the immigration bill on the ground that the irregular procedure in the Bundesrat was unconstitutional. He has already been urged to do so by two former Presidents of the Federal Constitutional Court, namely Ernst Benda and Roman Herzog, both Christian Democrats. (Herzog also preceded Rau as President of the Federal Republic.) But since the law in question would not enter into force until January, Rau could delay signing the bill until after the September election, but that would be seen as sheer opportunism. If he decides to sign the bill before then, Christian Democrats are sure to challenge the law -- and with some degree of confidence in the outcome -- in the Federal Constitutional Court.

From the point of view of some Germans, the constitutional issue in this case could have been avoided. A less tenacious Chancellor might have allowed the Bundesrat, under the terms of the Basic Law's article 77, to form a mediation committee to work out differences between the two parliamentary bodies, a strategy that may very well have succeeded without affecting the essential core of immigration reform. In the meantime, it is likely, as now seems the case, that Brandenburg's coalition might also have arrived at a common position on the reform. The immigration bill, if it becomes law, is likely to be constitutionally challenged in any case, but the current procedural dispute can only get in the way of the broader objective that the governing national coalition had in mind.

As for the voting procedure in the Bundesrat, legal authorities in Germany are divided over its constitutionality, and largely along party lines. The case is a faint reminder of Bush v. Gore, the Supreme Court decision that resulted in the election of George W. Bush as President. The German story, like the American, is an exciting chapter in constitutional politics, with one side invoking the constitution and the other claiming that the issue has been decided politically, and appropriately so. Brandenburg maintains that its own constitution allows the Prime Minister to represent the state in forums, national and international, outside the state and that it was perfectly proper for him to cast the state's vote in the Bundesrat, especially since the state's Christian Democratic Interior Minister, Jörg Schönbohm, did not expressly insist on voting "no" when asked for his vote a second time.

The view of constitutional scholars with no partisan ax to grind seems to this observer to be the most plausible. This view holds that a state's Prime Minister may have the deciding vote in case of conflict, but any such decision must be taken at the cabinet level within the state in advance of the Bundesrat's convening, which is to say that a conflict within a ruling state coalition may not be settled in the Bundesrat. Any other procedure would transpose the Bundesrat into a conventional legislative body. In short, a divided vote, such as occurred here, seems incompatible with the literal language of Article 51 (3). On the judicial resolution of this procedural argument may hinge the fate of Germany's epoch-making immigration reform.

The views expressed in this publication are those of the author(s) alone. They do not necessarily reflect the views of the American Institute for Contemporary German Studies.