Could It Have Happened in Germany?

The question of Congress’s powers is a typical question in a federal state. In Germany, as in the United States, the federal level has only enumerated powers, whereas the states (Bundesländer) have a general presumption of power. The question of whether a specific legislation is covered by the enumerated powers also frequently arises in Germany.

In Germany, an individual mandate was introduced only in 2009. Before that, mandates existed for certain groups, but were not universal. Here, the German Federal Constitutional Court clearly saw the mandate within the federal parliament’s power: “To justify the goal expressed in the GKV-WSG [health reform act] of ensuring that all the inhabitants of the Federal Republic of Germany have affordable health cover in the statutory or private health insurance system, the legislature may invoke the principle of the social welfare state contained in the Basic Law (Grundgesetz – GG). The combination of compulsory insurance and obligation to enter into contracts in the basic category is appropriate to achieve the legislature’s goal of guaranteeing adequate and affordable health insurance cover for the category of persons allocated to private health insurance. If there were no obligation to enter into contracts, in particular persons with serious pre-existing conditions would have no possibility of being accepted by a private health insurance company because it would not accept them by reason of the increased risk.”[10]

So the question of whether the individual mandate was within the German federal parliament’s power was not that controversial—in any case, the federal level did not have to invoke an abstract “Commerce Clause,” but could refer to the “social welfare state principle.” However, there are other cases where ample controversy exists. For example, the German federal parliament wanted to ban smoking in pubs and restaurants. Here, legal scholars had divergent opinions. The scientific service office of the Bundestag presented a legal expertise affirming that the act was within federal powers. But in the end, due to the legal uncertainty, parliament backed off and buried the bill.[11] Legislating for smoking bans in pubs and restaurants was left to the sixteen Bundesländer, and Germany now has a patchwork of different rules throughout the Länder.

The Medicaid/coercion issue also had its own equivalent in Germany. In the postwar Basic Law, the federal level in Germany had the possibility to hand out grants to Bundesländer with strings attached. It quickly used its superior financial strength to leverage its influence into areas beyond its enumerated powers. The states complained, claiming this to be the “golden reins.” However, the case was not fought in court but in parliament. In 1968/69, it was decided to amend the constitution. Since then, it is forbidden for the federal level to spend its money on duties or responsibilities beyond those conferred by the Basic Law. There are exceptions (“Gemeinschaftsaufgaben”), such as universities or coast protection, but these are definitely listed in the Basic Law. Due to the lack of accountability, the Gemeinschaftsaufgaben have remained controversial, and in 2006 the list was reduced.