Now the whole world is talking about Chancellor Olaf Scholz’s policy decision. His power to keep three nuclear power plants running. Which raises the question of how powerful the Chancellor really is. Some surprising insights.
Regarding Olaf Scholz’s authority to issue directives, the Federal Chancellor does not decide whether the three nuclear power plants will continue to operate. This decision is not made in the Chancellery. Strictly speaking, Scholz’s “word of power” is hollow, because the Chancellor cannot speak a word of power. He didn’t say it either. To ask?
Olaf Scholz settled a dispute within the federal government between the two ministers Robert Habeck from the Greens and Christian Lindner from the FDP. The Chancellor’s policy decision essentially consists of two technical parts: on the one hand, all three nuclear power plants continue to run and not just two, which pleases the FDP. On the other hand, the nuclear power plants will only run until mid-April next year, which pleases the Greens. “Nuclear power is over” put it by the Green parliamentary group leader Konstantin von Notz, culturally adopting a word from Badener Wolfgang Schäuble.
It’s a classic compromise: a defeat for the Greens plus a defeat for the FDP allows both of them to get out of this face-saving. We’re emphasizing the defeats of the FDP and the Greens here, because the FDP and the Greens themselves are hiding them so that they can only talk about their successes.
But that is an inappropriate one-sidedness, one could also say: the attempt to take the citizens for fools. The defeat of the FDP is inversely proportional to their jubilation about the Scholz decision. Measured in terms of reactor running times, the Greens pushed through almost ten times as much as the Liberals. Because the FDP wanted to let the three nuclear power plants run for another year, while the Greens only had to accept the longer running time of a reactor of more than four months.
But back to Scholz: Competency to set guidelines can also be translated as follows: When two people argue, the third party is happy. In this case the Chancellor. Scholz, who was constantly attacked by his coalition ranks because of his lack of leadership skills, suddenly became a head of government who was willing to make decisions. If you order a tour from him, you get it. Finally.
With the policy decision, however, governance really begins. Now a draft law has to be written, probably by the Federal Ministry for the Environment, which means that Steffi Lemke, an opponent of nuclear power from the Greens, of all people, has to write a law that would allow three reactors to continue running. Although it is, in the language of the Greens, “high-risk technology”.
You can find that absurd, in fact it is. If nuclear power were a “high-risk technology”, everything would have to be switched off immediately, because then the Federal Chancellor’s oath of office would be affected: to prevent damage to the German people.
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But back to the Federal Chancellor’s authority to set guidelines: it is inherent in this that it binds the entire federal government. And so the power of a minister over his department is severely curtailed. The Green Fundi (one of the last of its kind) draws Jürgen Trittin’s attention to this point.
However, Steffi Lemke is still free. She can also refrain from writing such a bill, precisely because people in her house are of the opinion that that would be irresponsible. In that case, however, the chancellor would (have to) dismiss the minister, because the “decision of the chancellor has decided the dispute in a binding manner for the entire federal government”. This is how the Berlin professor for state theory and public law, Alexander Thiele, puts it.
If the Greens did not respect Scholz’s decision, the traffic light would be over. However, there is nothing to suggest that, as Lemke has not yet appeared as a gambler. But – not only Lemke has to make a decision that decides the weal and woe of the government. A lot more people need to do that.
Namely, all parliamentarians who make up the government factions in the German Bundestag. Lemke makes a bill that goes to the Bundestag, which votes on it. If the parliamentarians vote for it, everything is fine. (Maybe not for Germany, let’s wait for the winter, but at least for the government).
More interesting is the case when the traffic light for your government’s draft law does not get a majority in the Bundestag. Which is possible because the Basic Law stipulates that MPs are “subject only to their conscience” (Article 38). There is no such thing as “group coercion”, so of course it does exist, but it shouldn’t exist.
If a parliamentary group leader or his whippersnapper, i.e. the parliamentary secretary, said to one of “his” MPs: “You may be an opponent of nuclear power, but this time you have to vote for nuclear power”, then the parliamentarian could sue – and be right. Such a restriction of the freedom of the mandate would be clearly unconstitutional.
However, another restriction of freedom, which is carelessly ignored in some media commentaries, would also be unconstitutional. Because: the decision of the party congress of the Greens to allow only two out of three nuclear power plants to continue to run, which was born out of the energy shortage, expressly does not bind the Green members of the Bundestag.
Because: That would be an “imperative mandate”. But even members of the Greens are only obliged to their conscience, which means: In case of doubt, not their party. If the Greens decided: “Our members of the Bundestag may only vote in parliament as we decided at a party conference”, this would be: unconstitutional. Germany is not a party dictatorship, but a parliamentary democracy.
Someone wrote: The chancellor overrode a Green Party resolution. That might be the case, but it’s also: irrelevant nonsense. A party congress decision by the Greens does not bind a (red) Chancellor. A policy decision by the chancellor is still binding on the green party. Party and government are constitutionally parallel universes.
Back to the Bundestag and its parliamentarians. Lawyer Alexander Thiele says: “The members of the Bundestag, especially those from the government factions, are not explicitly bound by the decision. So, as usual, you can make your own decisions based on your conscience.”
If they do, however, it is also clear: then the traffic light has gone out. As you can see: the decision-making power of a Federal Chancellor cannot undermine the freedom of the members of parliament. Olaf Scholz is not a Xi Jinping.
However, and thus from legal theory to political practice: The traffic light has a comfortable majority in Parliament. It represents 416 of the 736 MPs. She could easily cope with a Jürgen Trittin as a deviant. It would only be gone if there were 48 deviants. So to speak. The vote in the Bundestag on the continued operation of the three nuclear power plants will always be a kind of “question of confidence”.
However, the chancellor need not really worry. Robert Habeck and Christian Lindner both welcomed the Scholz decision. This is anything but amazing. Because Scholz freed her from a predicament. He released them from a cage they built themselves beforehand.
That is why what these three pillars of government are bringing to the political stage in Berlin is not only due to the responsibility ethic of keeping Germany warm through the winter. It’s also a reasonably entertaining spectacle.
A red-green-yellow state theater.