(Lawmaking; 06-02; p.5)

Consequences for future law-making

Decisions of the Constitutional Court are final, they become part of the history of legal interpretations. To avoid similar difficulties in the future, two ways can be thought of in principle:

On the one hand, motions with federal implications which are discussed controversially between the political parties could be "harmonised" in the first place. This way making sure that they will pass all deciding bodies, i.e. the federal parliament and the Bundesrat and if needed the mediating committee, the "Vermittlungsausschuss".
But doing this, one would give up a balanced federalism for party politics: not specifically weighed interests of the "Länder", but decisions of political parties were in the centre, given the German conditions of party bloc-voting and mandates stemming from party lists.
Regarding legitimacy one may ask then, whether the right of the respective parliamentary elected minister-president to conceptualise and put through policies will not be undermined. He would still act with democratic legitimacy - he is elected by people elected -, but could put through policies of his Land only if the balance of party powers on the federal level does not stand against it.

A way out of this could only be the second possible solution: making sure that decisions will be brought about in the favour of the respective government of the Land in due time. A minister-president had if needed to choose appropriate delegates or to cancel coalition treaties.
So, at least one could avoid that party interests overrule the interests of the Länder in the Bundesrat. Conflicts however, had to be solved then within the Länder and could not be transferred to other bodies or people responsible.
- If the motion is one that can be vetoed by the Bundesrat only temporarily, eventually parties would decide again, since it will be decided thereafter again in the federal parliament.

(End of article)