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Federal Powers in the Pandemic : “Ruling through” without the federal states could be difficult
Federal Minister of the Interior Horst Seehofer demands that the federal government take control of the pandemic fight. Uniform rules should apply nationwide. The federal government has "always had legislative competence in this area," said Seehofer of the "Süddeutsche Zeitung", and "you just have to make use of it". He believes that it is wrong to fight the coronavirus through prime ministerial conferences, said the interior minister.
Chancellor Angela Merkel also spoke out in favor of central rules during her visit to the Anne Will talk show on Sunday. If the federal states do not all rigorously implement the resolutions for a corona emergency brake and also take options such as regional curfews, they may face federal measures if necessary.
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The Chancellor went into court with the pandemic policy in Berlin, North Rhine-Westphalia and Saarland. Actually, clear boundaries have been drawn in, and testing cannot be an excuse to relax.
The constitutional lawyer Christoph Möllers from Berlin's Humboldt University recently emphasized in "Spiegel" that Merkel theoretically has every opportunity to govern.
The Basic Law gives the federal government the legislative competence for all "measures against publicly dangerous or communicable diseases in humans and animals". The states are only allowed to take action here if and to the extent that the federal government has not yet regulated anything.
The federal states monitor and decide on specific protective measures
But how can the federal government "take action" when it comes to corona measures? This is difficult on the basis of the current Infection Protection Act (IfSG) alone. The law regulates the interaction between the federal and state governments in fighting pandemics and was last amended comprehensively last autumn.
According to this, the Bundestag can, as happened, determine an “epidemic situation of national scope”. The definition of "special protective measures", such as curfews or the like, in such a situation is then basically "regionally based on the level of the counties, districts or urban districts" on the basis of the threshold values - via statutory ordinances of the state governments.
One possible “penetration” lies in the option of the federal government to issue its own statutory ordinances to combat pandemics. However, these regularly require the approval of the federal states, i.e. the Federal Council.
However, since last year the IfSG has also given the federal government new powers to issue ordinances without the consent of the federal states. With this instrument, the Federal Minister of Health can, among other things, take "measures to ensure the supply of medicines, including vaccines".
These regulations were much criticized as interfering with the federal order, among other things because the minister for his part was allowed to deviate from laws that were passed with the consent of the Federal Council. In addition, they offer little leverage for the current situation, because they have to remain limited to the expressly named use cases.
The Federal Council approved the changes to the Infection Protection Act
Chancellor Angela Merkel spoke of “tackling the Infection Protection Act again and specifically saying what must happen in which case”. Bavaria's Prime Minister Söder said he was open to the fact that a changed infection protection law would force the states to take action.
How that can look is open, especially since the time is tight for it. This will hardly work against the will of the federal states, because the federal states have a say in legislation; The Federal Council approved the IfSG changes last year.
A possibility to intervene directly in the enforcement of the ordinance of the federal states should also be problematic. Regulations in the IfSG would be conceivable with which the states would not only be empowered to issue statutory ordinances, but would be obliged.
Or that behavior is stipulated in the IfSG, for example when a certain threshold is exceeded. A disadvantage would be the lack of flexibility and the lack of consideration for regional conditions.
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A separate pandemic control law with separate federal powers would also be possible with recourse to Article 74 of the Basic Law. But even such a procedure would probably be connected with political conflicts and would interfere with the federal structure, since law enforcement would continue to fall within the competence of the federal states.
Not least because of this, Merkel summarized the situation with the words: “We cannot make decisions without each other”.
A violation of the principle of democracy?
On the specialist website verfassungsblog.de, the Hanoverian lawyer Anna-Lena Hollo went tough with the pandemic legislation, which she considers undemocratic. The "law for the continued validity of an epidemic situation of national scope" (EpiLage-FortgeltungsG), which is to replace the IfSG, which has already been amended several times, from Thursday, makes "executive decision-making", as the Regensburg health lawyer Thorsten Kingreen calls it, permanent, writes Hollo in her post published on Monday.
However, "also the violation of the principle of separation of powers, the parliamentary reservation" and against the principle of democracy are limited in time. Hollo teaches and researches at the University of Hanover and is a specialist in social law. The “self-empowerment” of parliament in favor of the government is not only legally questionable; it also did not lead to more efficiency and speed, "but too much back and forth," writes Hollo.
As examples, she cites the Coronavirus Vaccination Ordinance of December and the Easter resolutions of the Bund-Länder Round of March 22, which the Chancellor withdrew the day after. In an "orderly legislative process with the participation of legal experts", writes Hollo, the unconstitutionality of the Corona Vaccination Ordinance would have "surely been noticed before the regulations were enacted and - one can probably assume - changed". The same applies to the Easter resolutions.
An instrument that is supposed to work quickly and efficiently, but achieves the opposite, is obviously not the right one. "For the third time now, the legislature in parliament has missed the opportunity to get rid of the unconstitutionality of its corona legislation and, above all, to finally strengthen the legislature again vis-à-vis the executive. (With dpa)
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