President of Germany

From the German Confederation to the modern federal state

The first modern head of state for the whole of Germany was Reichsverweser Archduke Johann of Austria. The Frankfurt National Assembly elected him on 29 June 1848, and on 12 July the Bundestag of the German Confederation conferred his powers on him. Despite the suppression of the revolution in 1849, the states never doubted the legality and legitimacy of his office. On December 20, 1849, he transferred the business to a central federal commission, which held office until the old Bundestag was restored. The German Confederation itself, before and after the revolutionary period, on the other hand, had no head, but only the Bundestag as its supreme body.

In the North German Confederation of 1867 (since 1871 under the name "German Empire") the King of Prussia was the head of state, with the designation Federal Presidency. The republican-sounding term "Federal President" had been deliberately avoided. With the new constitution of 1 January 1871, the King was additionally given the title "German Emperor". The office at the federal level was constitutionally always tied to that of the Prussian king, so that the Prussian succession automatically applied to the succession to the office of emperor. The other states in Germany, such as Bavaria or Baden, retained their princes. The time of the monarchical federal state ended with the November Revolution of 1918.

The purely revolutionary period ended with the inauguration of the Weimar National Assembly. It elected Friedrich Ebert as President of the Reich as early as 11 February 1919. The final form of this office came only in the summer, with the Weimar Constitution. After Ebert, Paul von Hindenburg was Reich President (1925-1934, he died in office). Hindenburg had appointed the "Führer" of the National Socialists as Reich Chancellor, Adolf Hitler, in January 1933. With Hindenburg's support, the Nazis turned Germany into a totalitarian dictatorship. After Hindenburg's death, Hitler, by fictitious referendum, had the powers of the Reich President transferred to him. In his will in 1945, Hitler appointed Karl Dönitz as Reich President. Dönitz and his government members were arrested in Flensburg-Mürwik on 23 May 1945 and declared deposed by the four victorious powers on 9 June 1945.

From Reich President to Federal President

In August 1948, lawyers met in Bavaria. The West German minister-presidents had given this "Constitutional Convention on Herrenchiemsee" the task of drawing up a draft for a provisional West German state. Not officially, but de facto, this draft became the basis for deliberations at the Parliamentary Council (1948/1949). The experts had not agreed on whether the new state should again have an individual as head of state. A minority in Subcommittee III wanted to see instead a "Federal Presidium" consisting of the Federal Chancellor and the presidents of the Bundestag and Bundesrat. This was justified by the merely provisional character of the new state.

The Parliamentary Council, which drafted the Basic Law, followed the majority's proposal to provide for a Federal President, but to give him relatively little power. This is generally regarded as a reaction to the experience with the office of the Reich President. What was looked at was the right of emergency decrees, the right of the Reich President to rule bypassing the elected parliament with presidential decrees in an emergency, and the right of the Reich President to appoint the members of the government in his own political decision. This was considered to be one of the causes of the political crisis of the Weimar Republic from 1930 onwards, with the presidential cabinets under the Reich Chancellors Heinrich Brüning, Franz von Papen and Kurt von Schleicher, and finally the slide into dictatorship under Hitler. For this reason, and also in view of the lack of sovereignty of the German state at the time, the SPD parliamentary group argued that the office of Federal President should be dispensed with until German sovereignty was restored, and that its functions should be performed by the President of the Bundestag.

However, the emergency decree law of the Weimar Reichsverfassung did not necessarily enable the path to presidential dictatorship: Article 48 WRV provided for the establishment of an executive law, yet to be adopted, which could have considerably concretized and limited presidential powers and put a stop to possible abuse. Furthermore, the general power of the President to dissolve Parliament, which has now been abolished, was also abused in the final phase of the Weimar Republic. Even during Friedrich Ebert's term of office, these extensive rights had been exercised in what was largely described as a positive manner - the failure of the young republic was thus also due to insufficient control of constitutional compliance. Finally, the taking away of the two important rights was a clear disempowerment of the presidential office. Today, the election and removal of the Chancellor is almost exclusively in the hands of the Bundestag.

Position of the Federal President in the Basic Law

The low power-political endowment of the office of the Federal President in the Basic Law for the Federal Republic of Germany is generally regarded as a reaction to the experience with the office of the Reich President in the Weimar Republic. During the deliberations of the Parliamentary Council, there was a broad consensus among all participants that the President should not again be given such a pre-eminent position in the political system as the Reich President (in particular Paul von Hindenburg) had at the time.

Parallel to this diminution of his powers, the mode of election for the President was also changed: Whereas the Reich President was still directly elected by the people (1925 and 1932), the Federal President is elected by the Federal Assembly, which meets only for this purpose. This made the democratic legitimacy of the Federal President more indirect: he is no longer an organ of political governance directly elected by the sovereign. The rejection of a direct election of the Federal President is also justified by the fact that otherwise there would be a disproportion between strong democratic legitimacy (he would then be the only directly elected constitutional body of the Federation besides the Bundestag, moreover the only one consisting of one person) and low political power.

Reich President Friedrich Ebert described himself as the "guardian of the constitution". Under this expression, various expectations were placed on the office, among others by Carl Schmitt, according to whom the Reich President should actively defend the legal order. In the Federal Republic, the term was largely rejected for the Federal President. At most, the Federal Constitutional Court is granted such a role.

Furthermore, there are voices that want to see in the Federal President a "pouvoir neutre" that stands above the parties. Just like "guardian of the constitution", this designation fails to recognize that the Federal President is neutral in terms of party politics, but not in terms of state politics. The frequent view that the Federal President is the supreme notary or state notary of the Federal Republic tends to devalue the office and fails to recognise its functions. Rather, the Federal President has control functions that uphold the law and the constitution, as well as representation and integration functions, which are (for the most part) not expressly mentioned in the Basic Law. Through his actions and his public appearance, the Federal President makes "the state itself visible", he "represents the existence, legitimacy, legality and unity of the state".

In his function as head of state, the Federal President has the following duties, among others:

• He represents the Confederation in international law.
• He certifies diplomatic representatives.
• He has the power of pardon at the federal level, although he has delegated some of this power to other federal bodies; he cannot, however, grant amnesty.
• He shall sign federal laws and have them promulgated by publication in the Federal Law Gazette.
• He proposes a candidate to the German Bundestag for election as Federal Chancellor, appoints and dismisses him.
• On the proposal of the Federal Chancellor, he appoints and dismisses Federal Ministers.
• He appoints and dismisses federal judges, federal civil servants, officers and non-commissioned officers, except as otherwise provided by orders and decrees.
• After three failed elections for Chancellor or after a failed vote of confidence he has the decision to dissolve the German Bundestag.
• He announces that the case of defence has been determined and has occurred, and he makes declarations under international law when an attack occurs; in this respect, the Federal President has the sole function of declaring war.
• He appoints the Bundestag (in derogation of parliamentary resolutions) and
• the Political Parties Financing Commission under the Political Parties Act.
• He initiates state acts for important reasons
• and arranges the state symbols.
• It approves the rules of procedure of the Federal Government.

Many activities are assigned to the function of the Federal President as State Notary. Normally, in German constitutional reality, orders and decrees of the Federal President require the countersignature of a member of the Federal Government in accordance with Article 58 of the Basic Law, by which, according to prevailing opinion, all official and politically significant acts and declarations are meant. This means that the Federal President cannot issue decrees or enactments against the will of the Government, and thus cannot enforce his own political content bypassing the Federal Government.

However, in certain crisis situations clearly defined in the Basic Law, in which the Federal Government's ability to act is impaired, special powers accrue to the Federal President, some of which do not require his signature. In this respect, one also speaks of power-political "reserve functions" of the Federal President.

Representation in international law and foreign policy engagement

The Federal President represents the Federal Republic of Germany under international law. He accredits German representatives (usually by letter of accreditation) and receives and confirms representatives of international organizations and foreign states in Germany by accepting their accreditation. This is subject to the approval of the Federal Government. The Federal President issues the necessary power of attorney to German representatives for the conclusion of international treaties, and when these have been signed, he promulgates the Act of Assent and Transformation and issues the instrument of ratification. In this way the Federal Republic declares in its external relations that it regards the treaty as binding and effective. However, the political and substantive decision in this regard is taken by the Federal Government and the Bundestag.

The Federal President undertakes state visits. Some observers read from the chronological order of the states visited an indication of the foreign policy accents the respective president is likely to want to set. While initially it was often France and other neighbouring countries to the west, President Köhler, for example, has deviated from this rule by paying his first official state visit to Poland, Germany's eastern neighbour, the country of his birth.

Federal Armed Forces and the Case of Defence

In contrast to the Reich President and the Reich Armed Forces, the armed forces of the Federation (Bundeswehr) are not under the jurisdiction of the Federal President; the danger of a state within the state has therefore never existed. In peacetime, the power of command and command authority over the Bundeswehr lies with the Federal Minister of Defence. Neither the Federal President nor the Federal Chancellor are therefore the supreme commander of the Bundeswehr in peacetime. However, in the case of defence, the power of command and control passes to the Federal Chancellor. The declaration of a state of defence, which is made at the request of the Federal Government by the Bundestag with the consent of the Bundesrat, must be promulgated by the Federal President in the Federal Law Gazette (Article 115a(3)(1) of the Basic Law). As soon as the case of defence has been proclaimed, the Federal President may, with the consent of the Bundestag, make declarations under international law on the existence of the case of defence.

Appointment and dismissal of members of the Federal Government

Chancellor

According to Article 63 of the Basic Law, the Federal President proposes a candidate to the Bundestag for election as Federal Chancellor. Legally, the Federal President is free in his decision. However, usually the candidate is proposed who, due to the strength of his parliamentary group or an existing or forming coalition, can count on the approval of the majority of the members of the Bundestag required in the first ballot.

If the proposal does not find an absolute majority in the Bundestag (which has never happened before, see Votes on the German Chancellor), the Bundestag may elect a Chancellor by an absolute majority within fourteen days, without requiring a proposal from the Federal President. If this does not succeed, a new ballot takes place immediately, in which is elected who receives the most votes. If the elected person obtains an absolute majority, the Federal President must appoint him. If the person elected obtains only a simple majority, the Federal President must within seven days either appoint him or dissolve the Bundestag.

Deputy to the Federal Chancellor (Vice-Chancellor)

According to Article 69 (1) of the Basic Law, the selection and appointment of a Federal Minister as his or her deputy, who is also known colloquially as the Vice-Chancellor, is exclusively a matter for the Federal Chancellor. The Federal President does not participate in this.

Members of the Federal Government

The Federal President appoints the Federal Chancellor's nominees as Federal Ministers. The extent to which the Federal President has the authority to select personnel is not regulated in the Basic Law. In the traditionally lived constitutional reality, the Federal President has a formal right of examination, for example, with regard to the question of whether the nominee meets the formal requirements of the office (for example, whether he is German, meets the minimum age, etc.). A more far-reaching substantive or personal right of examination is by no means excluded in the Basic Law, but has not developed in constitutional reality. The current tradition that the Federal President does not interfere in the personnel policy of the Federal Chancellor goes back to a request in this regard by Theodor Heuss, who wanted to have a list of ministers presented to him before the appointment of the ministers of the first cabinet of Adenauer. Adenauer, however, rejected this demand, Heuss gave in and thus established the procedure that has been practiced ever since and is also used when a minister or cabinet is dismissed.

Resignations and executive management

The Federal President cannot reject a resignation of the Federal Chancellor; he must dismiss the Chancellor in this case. He must also dismiss the previous incumbent in the event of a successful vote of no confidence and appoint the newly elected person. Under Article 69(3) of the Basic Law, the Federal President may request a dismissed Federal Chancellor or Federal Minister to continue in office until a successor is elected. He has generally done so. The only significant exception in the case of a Federal Chancellor was the dismissal of Willy Brandt after his resignation in 1974, where Brandt had asked not to be entrusted with the continuation of official business. Federal President Gustav Heinemann complied with this request; thus, the just dismissed Vice Chancellor Walter Scheel officiated as Chancellor for a few days.

Industrial relations with the federal government

The Federal President himself does not attend the cabinet meetings of the Federal Government. At the Cabinet table as well as in the Federal Security Council, the Federal President and his office are represented in the person of the Head of the Office of the Federal President. However, the Federal President regularly receives the Federal Chancellor, individual ministers or the entire Cabinet for confidential consultations and receptions. The Federal Chancellor also informs the Federal President about current government business by sending essential documents and by written and personal reports on matters of importance. On foreign trips, the Federal President is often accompanied by specialist ministers and state secretaries of the Federal Government. The Office of the Federal President also maintains working relations with the Federal Chancellery and the individual ministries.

Signature and review of legislation

Every parliamentary law requires the execution by the Federal President in accordance with Article 82 (1) sentence 1 of the Basic Law in order to come into force. The Federal Presidents have so far failed to "execute" federal laws, i.e. not signed them, eight times, each time with great public attention. In some cases the Federal President complained of errors in the legislative procedure, in others of material violations of the Basic Law.

• In 1951 Heuss did not sign the law on the administration of income and corporation tax for purely formal reasons, because it did not have the approval of the Bundesrat.
• In October 1961, his successor Heinrich Lübke refused to sign the law against company and employee trading. He considered it an inadmissible encroachment on the freedom of occupation (Article 12 (1) of the Basic Law).
• Twice Heinemann showed the legislature its limits: for both the Engineering Act (1969) and the Architects Act (1970) he saw no legislative competence on the part of the federal government.
• The "Law to Facilitate Conscientious Objection to Military Service" was stopped in 1976 by Scheel, who lacked the approval of the Bundesrat.
• In 1991, Federal President von Weizsäcker considered the "10th Law Amending the Air Traffic Act", which provided for the formal privatisation of the air traffic administration, to be materially unconstitutional and did not sign it. This led to the insertion of Article 87d (1) sentence 2 into the Basic Law, which left it up to the legislature to decide whether to structure the air traffic administration in a public-law or private-law manner. As a result, the law was passed again and finally signed by von Weizsäcker.
• In October 2006, Horst Köhler did not sign the law on the new regulation of air traffic control because it was incompatible with Article 87d (1) of the Basic Law. In December 2006, he rejected the Consumer Information Act because, in his view, it contradicted Article 84 (1) sentence 7 of the Basic Law, which prohibits the Federation from transferring tasks to the municipalities by law.

In nine cases, Federal Presidents signed laws, but combined this with a public declaration of constitutional concerns. This was the case, for example, with Carstens on the 1981 State Liability Act, von Weizsäcker on the 1994 revision of party financing, Herzog on the 1994 Atomic Energy Act, Rau on the 2002 Immigration Act and Köhler on the 2006 Aviation Security Act.

Formal audit competence

When signing laws, the Federal President has a formal right to examine whether they have come into being in accordance with the constitution. Parts of jurisprudence even see this as a duty to examine. In the past, there were different opinions in political science as to how far the Federal President's formal right of review extends. In current practice and in the public self-image of the Office of the Federal President, however, the formal review competence encompasses the entire legislative process. The representatives of the most far-reaching formal review competence also want to see the review of administrative competences covered by the Federal President's formal review right; this leads, for example, to the fact that the Federal President may also review the prohibition of the transfer of tasks by the Federation to municipalities and associations of municipalities (Article 85.1 sentence 2 GG) within the framework of his formal review competence.

Substantive audit competence

The substantive review competence is the possibility for the Federal President to review the content of a law submitted to him for signature to ensure that it complies with the Basic Law and to make his signature dependent on the result of his review. If the Federal President does not sign, the law does not enter into force (→ Legislative procedure (Germany)). The Federal President's substantive review competence is part of the constitutional reality of the Federal Republic of Germany. However, the instrument of blocking a law by way of substantive review competence has so far only ever been used with restraint by sitting Federal Presidents in its de facto veto function (→ List of laws not executed). In political science and law, there are different views on the scope of the review competence with regard to substantive law, but in the official account of the office itself, this is undisputed.

Consequences

If a law is not signed by the Federal President, it does not come into force.

The following options are available to policy-makers

• the (constitutional) amendment of the law itself,
• the amendment of the article of the Basic Law objected to as violated (with two-thirds majorities in Bundestag and Bundesrat, cf. Art. 79 para. 2 GG),
• Organstreit before the Federal Constitutional Court with the aim of establishing the constitutionality of the law and thus the unlawfulness of the denial and
• to impeach the Federal President, which has never been done before, before the Federal Constitutional Court, which can lead to his or her impeachment. The application for impeachment must be made by at least one quarter of the members of the Bundestag or one quarter of the votes of the Bundesrat, while the impeachment itself must be made by two thirds of the members of the Bundestag or Bundesrat (Article 61 (1) of the Basic Law).

Convening of Parliament and interaction

In accordance with Article 39 of the Basic Law, the Federal President may request that the Bundestag be convened at any time. It is also customary for the Federal President to invite members of the Bundestag to talks and to receive the Presidium of the Bundestag and parliamentary committees for talks. Such meetings provide the Federal President with first-hand information and enable him to influence political events. Sometimes the Federal President himself attends the sessions of the Bundestag, but does not usually take part in the debates.

dissolution of parliament

The Federal President has the constitutional right to dissolve the Bundestag in clearly defined situations:

• If, in the election of the Federal Chancellor, the proposed candidate for this office receives only a relative majority in the third ballot, the Federal President must within one week either appoint him (minority government) or dissolve the Bundestag (Article 63(4) GG).
• Likewise, the Federal President can dissolve the Bundestag after a failed vote of confidence on the proposal of the Federal Chancellor (Article 68 GG). This has happened three times so far:
• 1972 by Gustav Heinemann
• 1983 by Karl Carstens
• 2005 by Horst Köhler

All these dissolutions were deliberately brought about by the respective chancellors or government factions in order to enable desired new elections.

In decisions on these cases, the Federal Constitutional Court came to the conclusion that the Federal President has to examine whether the Federal Chancellor actually no longer has the confidence of the Bundestag or whether the latter intends to dissolve him abusively.

Legislative emergency

In the event of a negative vote of confidence by the Federal Chancellor in the Bundestag, the Federal President is authorised, but not obliged, at the request of the Federal Government and with the consent of the Bundesrat, to declare a state of legislative emergency pursuant to Article 81 of the Basic Law. This case has not yet occurred in the history of the Federal Republic.

State symbols and acts of state

The Federal President is entitled to order the national anthem, flag, coat of arms, uniforms, service dress, the official dress of the judges of the Federation (with the exception of the judges of the Federal Constitutional Court) and their use, as well as acts of state and state funerals, unless in each case the legislature has acted, as for example in the case of the federal flag (Article 22 GG). These orders must be countersigned in each case by a member of the Federal Government. As a symbol of sovereignty, the Federal President carries - in continuation of the tradition of the Imperial Presidents of the Weimar Republic - a standard with an image of the former imperial eagle, today called the federal eagle. At funeral ceremonies for a deceased Federal President, the Federal service flag is used as a coffin cover in accordance with the state practice of the Federal Republic, rather than the standard as was used for Imperial Presidents in Weimar times.

The German national anthem was established in correspondence between President Heuss and Chancellor Adenauer in 1952 and between President von Weizsäcker and Chancellor Kohl in 1991. The respective replies of the Federal Chancellors are generally interpreted as counter-signatures to the decree of the Federal President. This interpretation is supported by the fact that the exchanges of letters were published in the Federal Law Gazette and thus acquired a quasi-official character. However, this legal practice is problematic in the case of punitive state symbols under the aspect of the reservation of the law.

These powers have no basis in the Basic Law or a federal law. The majority of teachers of constitutional law therefore justify them with the traditional definitional sovereignty of heads of state over state symbols ("honorary sovereignty").

Charitable commitment

The Federal President assumes a number of patronages for projects that he personally considers useful, provided that they have a positive effect on Germany. Although the Federal President is not bound by the patronages of his predecessors, he continues a number of them, such as the patronage of the German Maritime Search and Rescue Service (DGzRS) and the German Red Cross (DRK). The Federal President also awards prizes, including the German Future Prize, and congratulates people on anniversaries such as their 65th wedding anniversary or 100th birthday. He also assumes the honorary sponsorship of the seventh child in a family if the parents so wish.

Speeches

The Federal President achieves a significant part of his political impact through speeches that take up or initiate social debates. Examples of this are the Weizsäcker speech on the occasion of the 40th anniversary of the end of the Second World War in 1985 and Roman Herzog's so-called "Ruck speech" of 1997. More than any other politician, the President is independent of the politics of the day and can thus determine the topics and timing of his statements much more freely.

Party political neutrality

The Basic Law does not stipulate any party-political neutrality of the Federal President, but a rather non-partisan conduct of office is traditional. According to the ruling of the Federal Constitutional Court, however, this does not result in any justiciable requirements for the exercise of office, so that an office holder could also conduct the office differently in this respect.