The Court emphasized that it was only rejecting the requested temporary injunction, even though it had taken the extraordinary step of expanding its review at this stage to include a summary assessment of the underlying, substantive constitutional challenges. Still, a full review on the merits awaits the Court. That is, there are more games on the horizon (Ireland and Sweden lie ahead for the national club). Above all, the big game still must be played, involving the question of the final character of Germany’s place in an ever-closer European Union. The Court’s ESM decision joins much of the Court’s preceding jurisprudence in guaranteeing that Germany’s participation in any comprehensive political union—a United States of Europe—will likely require significant constitutional reform. Resolving that issue will be every bit as difficult as slipping past La Roja in Rio for the World Championship in 2014. But even if the Court’s ESM decision gets us no closer to the inevitable end-game, some comparative reflection might give us a sense of where Germany stands with respect to a political and budgetary union. For example, the Court’s insistence on Parliament’s approval of new or expanded European power—what the court calls the Kompetenz-Kompetenz—suggests a stubborn sovereigntism. The Court patrols this boundary especially against European aggrandizement through the German government’s participation in international or European legal commitments that might lead to supranational or international Automatismus. The German government, the Court explained again in its new decision, cannot require Germany to cede its constitutional identity by creating international law obligations. By comparison, in 1919 the United States Supreme Court ruled in Missouri v. Holland that the federal union could do just that. The Supreme Court had earlier held that the Constitution assigned the authority to regulate migratory birds to the states and not the federal union. But in Missouri the Supreme Court upheld federal legislation regulating migratory birds because it had been enacted to fulfill the federal union’s new commitments under the Migratory Bird Treaty of 1918. International law had been used to recalibrate the balance of federalist power. This, however, unfolded as industrialization and the thickening national market were making federal centralization an accepted inevitability in America. On the terms of the Federal Constitutional Court’s ESM decision, however, further European integration and centralization is not as self-evident as federal centralization must have been to the Supreme Court in Missouri.
One can thrill at, and learn quite a lot from, a team’s performance in utterly predictable preliminary matches. Of course, winning is grand. And Germany is learning in these early qualifying games that Mesut Özil, Mario Gotze, and Marco Reuss truly are the squad’s shining stars. But it is prudent to recall Sepp Herberger’s profound soccer wisdom: “After the game is before the game.” Until Germany decides its ultimate European fate—probably as a matter of significant constitutional reform—we are due for many more predictable Constitutional Court decisions like the ESM Case: yet another victory for Europe but with limits ensuring the fragile vitality of German constitutional identity. After the decision is before the decision.