6

I first saw the following line in Politico's April 13, 2022 Zelenskyy’s Steinmeier snub triggers backlash in Germany referring to German President Frank-Walter Steinmeier and Chancellor Olaf Scholz:

While (president) Steinmeier is head of state, his role is rather symbolic. Executive power lies with Scholz as chancellor.

The first few paragraphs of Wikipedia's President of Germany explains the duties of the president, including:

  • has far-reaching ceremonial obligations, but also the right and duty to act politically
  • can give direction to general political and societal debates
  • (has) some important "reserve powers" in case of political instability
  • holds the prerogative to grant pardons on behalf of the federation.
  • represents the Federal Republic of Germany in matters of international law
  • concludes treaties with foreign states on its behalf
  • accredits diplomats
  • may veto a law if they believe it to violate the constitution
  • actions and public appearances represent the state itself, its existence, legitimacy, and unity

What I found interesting is that the introduction goes on to say:

The president's role is integrative and includes the control function of upholding the law and the constitution. It is a matter of political tradition – not legal restrictions – that the president generally does not comment routinely on issues in the news, particularly when there is some controversy among the political parties. This distance from day-to-day politics and daily governmental issues allows the president to be a source of clarification, to influence public debate, voice criticism, offer suggestions and make proposals. In order to exercise this power, they traditionally act above party politics.

To me this reads like "A good president should..." advisory, and I immediately wonder how an extreme, clever, manipulative and outspoken opportunist could exploit what looks to me like a fairly unconstrained job description.

Having seen how easy it was for a recent US president to simply ignore norms and guidelines, e.g. The Washington Post's All the times Trump said the constitution lets him do whatever he wants I now wonder:

Question: What guardrails are there against the German president from "going rogue"; making a power-grab, violating norms and guidelines and unilaterally making and/or blocking foreign policy decisions?

Yes, there is of course President of Germany; Impeachment and removal. And of course as the presidential impeachments of the US example cited above show us, these are always 100% effective the first time in removing a president who violates norms and guidelines and (allegedly) laws - I'm being humorous/sarcastic - impeachment is a purely political process and is subject to all manner of influences and complications.

5
  • 1
    I'm not sure why the focus is on foreign policy decisions. A hypothetical rogue president would far, far more likely just abusing their veto power instead.
    – xngtng
    Apr 13 at 22:51
  • "not be able to implement any significant amount of foreign policy to begin with?" From my readings (and your quotes), they can obstruct what the government wants to do (refusal to accredit diplomats, refusal to sign treaties, signing random treaties that won't come into force without parliamentary approval but may still be embarrassing, vetoing bills, publicly rebuking government of the day), but don't actually have much power to implement anything.
    – xngtng
    Apr 13 at 22:57
  • @xngtng "I'm not sure why the focus is on foreign policy decisions." 1) SE questions need to be carefully scoped and not broad 2) it's what I'm interested in. For large, rich countries their foreign policy activities can have worldwide impact, as Germany's are with Ukraine and with Russia right now (e.g. arms, oil, etc.)
    – uhoh
    Apr 13 at 23:03
  • 1
    @xngtng The Bundespräsident does not have veto power.
    – xyldke
    Apr 14 at 12:21
  • @xyldke Sure. They can simply refuse to sign legislations. Take my comment to mean they would far more likely to abusing power to sign legislations into effects then.
    – xngtng
    Apr 14 at 12:49

3 Answers 3

13

The Bundespräsident has neither the executive nor the legislative power to enforce decisions.

Executive Power:

In a presidential democracy the president has control over a lot of government agencies, either directly or indirectly through his ministers. That is not the case in Germany.

The Bundespräsident has one agency, the Bundespräsidialamt under him, which has just a few hundred employees and is basically his office staff. All other executive power rests in agencies that serve the Bundeskanzler and his ministers (note that the Bundeskanzler leads the ministers, not the Bundespräsident). There are very few ways in which the Bundespräsident can directly influence the executive.

The Bundespräsident can theoretically issue decrees and ordinances, but they need to be cosigned by the chancellor or the relevant minister (Art 58 GG). The same applies to foreign treaties (Art 59 Abs 2 GG

The Bundespräsident is also tasked with appointing and removing people in some positions of the executive, but he has no power to pick appointees or decide who should be removed. Presidential appointments are a responsibility and not a right ("shall appoint...").

Legislative Power:

Laws are enacted once they are signed and published by the Bundespräsident (Art 82 GG). You would think that that gives him the power to block anything. Especially since there is no veto override mechanism. Well no. There is no article in the constitution that would allow the Bundespräsident to refuse his signature. There is no veto override, because there is no veto.

There are interesting arguments regarding the so called Prüfungsrecht, which might allow the Bundespräsident to refuse his signature on obviously unconstitutional laws, based on the fact that Art 82 only mentions laws that came about on the basis of the constitution. Even that right is disputed, with the majority opinion being that he can only refuse to sign laws where the process, not the content, violated the constitution (formelles Prüfungsrecht). Any use of the Prüfungsrecht can lead to an Organstreitverfahren (see Philipp's answer)

Now the Bundespräsident could also refuse to do his job and not countersign a piece of legislation. That would surely lead to an Organstreitverfahren. If the president refuses to accept the decision reached there, he could be impeached (Art 61 GG), but at that point we've reached illegal and unconstitutional behaviour constituting a coup'd'etat.

In summary:

There is little stopping the Bundespräsident from making political decisions, just as there is little stopping you and me from doing so. But since the president does not have the means to enact these decisions, that doesn't matter.

Caveats:

There are times when the president can actually make decisions. These are usually times of constitutional crisis, like if the Bundestag is unable to elect a Kanzler or if there is a state of emergency. However, even those decisions are highly limited in scope and boil down to dissolving or disempowering the Bundestag (which means the Bundesrat has sole power to vote on laws). He still can't make his own laws or give orders to federal agencies.

PS: The Bundespräsident is not elected by the people, but by the Bundesversammlung, a body consisting of the Bundestag and an equal number of representatives sent by the state parliaments. A presidential power grab will directly disempower his electors, meaning that they will be careful to elect a president that stays in line.

7

He could be ignored by the public.

There are a very few issues where the Bundespräsident makes a decision. There are many more issues where the Bundespräsident is required to countersign decisions made by others. Failure to do that would basically be a blockade of the political process. Other than that, the power rests in the reputation as an elder statesman and the ability to guide the public debate. The public debate does not have to be guided if it doesn't like that.

There could be an impeachment trial.

This would be triggered by one of the chambers of parliament and tried in the supreme court.

3
  • "There are a very few issues where the Bundespräsident makes a decision." You mean they absolutely can't make a decision or due to norms and guidelines they traditionally don't? I've asked for "Guardrails against..." and just saying "they don't" isn't necessarily sufficient. Also, what's to keep them from communicating with or flying to some country and saying "I'll hold up X by not signing Y unless you (e.g. find dirt on Hunter Biden)"? The reason I mentioned recent problems with norms and guidelines in the US is because what normally happens is not necessarily a predictor of future events
    – uhoh
    Apr 14 at 5:51
  • The block quote from Wikipedia says for example "...includes the control function of upholding the law and the constitution". Perhaps I should have asked (or could ask separately) "Does the German Bundespräsident have any actual power beyond the persuasion of words and refusal to sign things?" Perhaps answers to Why do we hear so little about the German President? are helpful in this regard.
    – uhoh
    Apr 14 at 5:58
  • @uhoh, it means that for many functions the president can only act after others proposed the action.. For instance, the chancellor asks the president to appoint or dismiss cabinet secretaries.
    – o.m.
    Apr 14 at 10:04
6

When there is a dispute between two different organs of the state, like the parliament wanting to make a law and the president blocking it for reasons which are not in his or her prerogative, they can file a Organstreitverfahren (which could be translated as "organ dispute case") with the Bundesverfassungsgericht (constitutional court).

This option is defined in §93 of basic law:

(1) The Federal Constitutional Court shall rule:

  1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body;

[...]

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .