Hermann Pünder

DEMOCRATIC LEGITIMATION OF DELEGATED LEGISLATION—A COMPARATIVE VIEW ON THE AMERICAN, BRITISH AND GERMAN LAW

This article addresses the problem of democratic legitimacy posed by the executive branchs use of delegated legislative powers. After some remarks on the need for delegated legislation and the problem of legitimation the study identifies in a comparative perspective three approaches of ensuring that delegated legislation carries sufficient democratic legitimation. A first means of democratic legitimation is parliamentary predetermination of the executive role. German law proves that the proper legislature under the Damocles sword of unconstitutionality is in many cases well able to prescribe for the executive a substantive programme of delegated legislation. A second technique of democratic legitimation is that parliament in some way participates in the rule-making procedure. German and British law show that by means of subsequent approval the proper legislature assumes political responsibility for subordinate legislation beyond the original empowerment. The US Supreme Court, however, considers the legislative veto to be unconstitutional. Therefore, American law developed a third approach to solve the problem of democratic legitimacy. American experience makes clear that the democratic legitimation of secondary legislation can also be secured by means of comprehensively involving the public in the delegated legislative process. The author assesses the different models for legitimation and explains that the different approaches suggest valuable solutions to each countrys problems.

Objects and Procedures of Budgetary Planning and Limits to Borrowing (“Debt Brake”) in the Federal Republic of Germany

The introduction of the constitutional “debt brake” within the German Basic Law in 2009, ended a long-standing tradition that allowed state indebtedness as long as investments were made to the equivalent amount. As this old “golden rule of financial policy” had been misused for decades, a strong majority both in the Bundestag (the Parliament) and in the Bundesrat (the second chamber) voted in favor of a provision according to which “the budgets of the Federation and the Lander shall in principle be balanced without revenue from credits”. The analysis begins by clarifying that the Federation, the individual Lander and also the municipalities enjoy constitutionally guaranteed budgetary autonomy. Next, an overview of the objects and procedures of budgetary planning follows, which includes an explanation of the formal requirements for incurring debt. After that, the author analyzes in detail the limits to borrowing. There are three exceptions to the principle that indebtedness is prohibited. First, the Federation – unlike the States – is afforded a “structural” indebtedness when revenue obtained from borrowing does not exceed 0.35 % of the nominal GDP. Second, under “abnormal” economic conditions, both the Federation and the Lander may finance fiscal stimulus through the financial market (but have to reduce indebtedness or create surpluses in cyclical upturns). Third, the Basic Law permits the Federation and the States to borrow in case of “natural catastrophes” and “other unusual emergency situations”. These rules do not apply to the municipalities. Separate law restricts their borrowing. Finally, the author discusses the shortcomings of the new “debt brakes” and the risk that the restrictive regulations will be circumvented in practice.

Repräsentative Demokratie in der Krise? Referate und Diskussionen auf der Tagung der Vereinigung der Deutschen Staatsrechtslehrer in Kiel vom 3. bis 6. Oktober 2012

Reprasentative Demokratie in der Krise? I. Der Burgerstatus im Lichte von Migration und europaischer Integration 1. Bericht: Christian Walter 2. Bericht: Klaus Ferdinand Garditz II. Wahlrecht und Parlamentsrecht als Gelingensbedingungen reprasentativer Demokratie 1. Bericht: Hermann Punder 2. Bericht:Pascale Cancik III. Elemente direkter Demokratie als Entwicklungsperspektive 1. Bericht: Markus Moestl 2. Bericht:Margarete Schuler-Harms IV. Grossvorhaben als Herausforderung fur den demokratischen Rechtsstaat 1. Bericht: Kay Waechter 2. Bericht: Thomas Mann