The U.S. Supreme Court and the German Constitutional Court are again reminding their legislative counterparts in the Congress and the Bundestag about the decisive role they play in shaping the policy choices in the United States and Germany.
The decision on the constitutional parameters of health care reform reshaped the American debate and set the stage for a major clash over the Patient Protection and Affordable Care Act after the November 6 presidential elections, depending on the outcome. That decision, along with the one issued days earlier on immigration law, also underlined the continuing struggle over defining the role and reach of the federal government in determining policy. Yet it also illustrated how the polarized legislative process is increasingly turning to the courts to solve a problem the legislators cannot—or will not.
Following the Bundestag vote last Friday approving both the European Stability Mechanism (ESM) and the fiscal compact Chancellor Angela Merkel agreed to in Brussels, the Federal Constitutional Court has agreed to hear objections to consider whether these initiatives are in line with German law. The ESM needs Germany’s approval before it can take effect. If the Court blocks the ESM’s ratification, Chancellor Merkel would be embarrassed and the steps to deal with the euro zone’s crisis would be delayed for months. Even if the Court gives the go ahead, a full hearing and verdict on the case could still be pending down the road. The fact that German President Joachim Gauck decided to hold off with his signature on the law until the Court makes its ruling only adds to the drama.
The German Constitutional Court is expected to side with the chancellor. That said, the Court is also capable of issuing a warning that the debate over the ESM is not over. Three years ago, the Court stunned most of Europe when it delivered its ruling on the Lisbon Treaty. At that time, the judges declared the Lisbon Treaty is compatible with the country’s constitution, but it also said that domestic law must strengthen the Bundestag’s involvement in the implementation of European law. Part of the argument was aimed at the issue of maintaining a sufficient level of the democratic process in shaping the decisions around European integration. This red flag seemed to indicate that German sovereignty was going to remain fully in place as the European Union moved forward.
Meanwhile, the euro crisis has been generating calls for more European integration in order to get a grip on the challenges facing all members of the EU, with Chancellor Merkel in front of that effort. The danger she faces in light of the Constitutional Court’s hearing next week is the same problem President Barack Obama faced while waiting for the Supreme Court to rule on the health care law: the threat of losing legitimacy in the eyes of the voters if they hear that their elected leaders are not in line with the country’s constitution.