What are the problems of federalism?

Corona crisis

Nathalie Behnke

To person

is professor and head of the department "Public Administration, Public Policy" at the Institute for Political Science at the Technical University of Darmstadt. [email protected]

With the outbreak of the corona pandemic in Germany at the beginning of 2020, German federalism has once again come under increasing public criticism. The hindrance of the federal state organization in the everyday crisis in the juxtaposition of 16 corona ordinances of the states appeared particularly striking. There was talk of the "patchwork carpet" everywhere, and the German "Föderallala" was cheerfully conjured up in the political satire "Heute Show". [1] If you were allowed to legally hike and picnic with your own family members in the Baden-Württemberg part of the Allgäu even at the weddings of the lockdown, you risked committing an administrative offense subject to a fine when crossing the border into neighboring Bavaria invisibly with the same leisure behavior. When long-distance buses were allowed to travel again, different hygiene rules applied in each country, so that passengers might have had to be unloaded at the national border. These and other curiosities were gratefully picked up by the media and addressed in various ways when asked about the suitability of federalism in a crisis. On the other hand, the foreign press in particular certified Germany's exemplary pandemic management, [2] after the number of new illnesses a day fell relatively quickly to below 1,000 and the number of reproductions, i.e. the number of people to whom a person infected with the novel corona virus passed it on , with a few exceptions, could be reduced to below 1.0. [3]

Indeed, in everyday life we ​​sometimes pay a price of inconvenience for our federal system. A lack of clarity, inconsistent living conditions, incomparability or injustice for life chances are the allegations of the critics, especially with regard to educational federalism. [4] On the other hand, there are good arguments that Germany got through the crisis better than other countries, precisely because of its federal state organization. The freedom-securing, democracy and efficiency-enhancing advantages of federal coordination and decision-making processes are often overlooked in public and academic discussions. In this article, the theoretically derived assumptions about the advantages and disadvantages of a federal state organization are empirically questioned. An illustrative example is the infection protection management of the German federal states in the phase of the corona lockdown in spring 2020.

Federalism as a state organizational principle

Why is Germany actually a federal state? Is the federal order still up to date or could it not be abolished? These are the questions that implicitly resonate in the critical discussion about German federalism. The question of "why" can be answered historically, theoretically or economically.

Historically, the tradition of federalism as a state organization principle goes back to the Middle Ages and continued across all historical breaks into the Federal Republic. [5] Federalism is thus to a certain extent woven into the DNA of German political culture, which is particularly evident in everyday life in the distinctive patterns of federal coordination and negotiation in almost all political areas. [6] The so-called eternity clause in Article 79, Paragraph 3 of the Basic Law, which includes the division of the Federation into states and the participation of the states in federal legislation, shows how fundamental the federal state order was for the self-image of the Federal Republic. Even if there was the political will to do so, the Basic Law protects the federal system from being abolished. The historical path dependency is, however, only of limited use as a justification argument. It may provide a reason why it is difficult and therefore unlikely to deviate from this path. [7] However, this does not automatically justify the fact that the path-dependent state is functional or normative in some respect. Rather, the theory proves the Lock-in-Effects with their best-known example of the no longer up-to-date, but still standardized QWERTY keyboard in historical continuity, that path-dependent developments can also lead to dead ends.

That leads us to the second line of argument: the normative theory of federalism. German federalism developed over many centuries according to the logic of a coming together federalism, [8] So through the voluntary amalgamation of territories with the aim of bundling economic and defense power, it was actively available as a state organization principle for Germany in the "constitutional moments" of 1848, 1871, 1919 and 1949 and required further justifications ] The dominant motive here was the limitation of power. Neither in the middle of the 19th century nor after the First World War was the Prussian hegemonic power able to assert itself against the strong princes in the south, although reformers saw it as a focal point for the formation and development of a German nation-state. [10] Even in 1949, when the re-inclusion of the federal principle in the Basic Law was supported by the Allies, their focus was on limiting power. Although this was historically understood primarily as territorial - before Prussia's claims to great power against other German territories or a nation-state Germany against its neighbors, who were still deeply traumatized by two world wars started by Germany - the vertical separation of powers also protects individual freedom. This aspect was particularly emphasized in the discussion on the US constitution. [11] Even in our peaceful and stable democratic times, the normative advantage of federal state organizations that can hardly be overestimated is the freedom-securing effect of federal power limitation, in that governments can only make a few decisions autonomously, and that the participation of many people always prevents them from "ruling through".

However, the participation of many in a decision - and thus a core essence of federal organization - is generally not praised in rational decision theory as primarily safeguarding freedom, but rather criticized as a problem of efficiency. In general, the economists James M. Buchanan and Gordon Tullock showed that the higher the number of decision-makers, the cost of an agreement can rise almost immeasurably, which is why a unanimity rule can hardly be implemented in large groups. [12] The political scientist George Tsebelis argued in a similar way in the "veto player theory": The more veto players there are, the smaller the change in the status quo must be. [13] The theory of "political entanglement" formulated by political scientist Fritz W. Scharpf is explicitly tailored to federalism. [14] It also shows that interwoven policy decisions in federal institutions produce results that, after long negotiation processes, lead to solutions based on the lowest common denominator. If political decision-makers are unable to take quick action or implement far-reaching reforms, this is generally seen as a flaw in politics.

The question is, however, whether and under what conditions delayed and gradual decisions are actually a disadvantage. Classical organizational theories as well as more recent theories of dealing with crises or with complexity consistently indicate that, under conditions of high uncertainty about the effects of an action, decentralized and step-by-step decisions are to be preferred. [15] In this way, you can prevent wrong decisions leading to catastrophic consequences. Even a slow decision is not in itself a mistake, provided it is conditioned by a lengthy process of deliberation and deliberation. Both in the decision theory, for example in the "Jury Theorem" of the French enlightened Marquis de Condorcet, [16] and in the institutional order of representative democracies [17] the assumption is expressed that more decision-makers, discussion and consultation improve quality and social acceptance improve a decision. [18] Conversely, decisions that are made by "strong heads of state" on their own are rarely characterized by comprehensive information, a balanced risk assessment, foresight and future viability. The popular attraction of the new autocrats, for example, lies precisely in the fact that they do not submit to any power control. A decision by politicians against this contrast film is clearly preferable, who first obtain detailed information about the available knowledge about options for action and their consequences and then consult with other actors in order to then jointly agree on what is probably the best decision. In this respect, a federal power-sharing not only has the effect of safeguarding freedom, but it also systematically reduces the risk of wrong political decisions.

Finally, from an economic point of view, it is typically argued that a federal state organization is advantageous because it ensures the efficient distribution of scarce resources and is therefore also materially advantageous for the citizens. Decentralized units can adapt better than central ones to regional needs, framework conditions and needs. They can also react more quickly and flexibly to changing requirements. Decentralized administrative execution is in principle also possible without a political decentralization of competencies. France and Italy, for example, have highly deconcentrated administrative powers, but political decision-making power remains fully (France) or largely (Italy) centralized. While flexible local administration is just as possible there as it is in Germany, only in Germany is there a direct democratic link between political institutions and the will of the electorate.

Working federalism in crisis

The federal power-sharing thus firstly has an individual freedom-securing effect by bringing state powers into competition with one another; Second, it increases the factual quality of decisions in complex decision-making situations, since more deliberation and discussion take place and there is a high pressure to justify the decisions made. And thirdly, it ensures a regionally appropriate, flexible and efficient provision of public goods and services. On the other hand, there are the supposed disadvantages of a slow decision-making process and a confusing legal fragmentation in the territory for the citizens.

The extent to which these advantages and disadvantages can be confirmed in the current everyday crisis of working federalism due to pandemics is empirically examined below using the example of the so-called Corona ordinances. This is the legislation that the state governments have passed since March 2020. Essentially, they are ordinances, in some cases general directives and a few formal instructions. These were collected for the period from March 9 to June 21, 2020 in all 16 federal states and coded with regard to the point in time at which certain regulations were introduced, changed or withdrawn. [19]

Thesis 1: Federalism leads to slow decisions
After several Covid-19 cases were detected at the end of February 2020, the number of new infections every day skyrocketed within the first two weeks of March - the 1,000 mark was jumped on March 8, the 2,000 mark just two days later, and again two days later, on March 12, the 3,000 mark. [20] On March 12, the heads of government of the federal states met with Chancellor Angela Merkel. It was agreed on assembly bans and school closings. Just three days later, on March 15, all schools and daycare centers from Flensburg to Garmisch-Partenkirchen were closed, and emergency care was offered for the children of working parents in so-called systemically relevant professions. In the week before, 14 out of 16 countries had already issued their first assembly bans, the last two countries followed on March 17. Entry bans for all types of care and nursing homes were introduced in eight federal states by March 15 and in a further seven states the following week, only in Rhineland-Palatinate a corresponding rule was only introduced on March 23. The lockdown for shops and restaurants with corresponding exceptions to secure daily needs was implemented across the board in the week from March 16. The quarantine regulations for travelers returning from risk areas look a little delayed and inconsistent: These were introduced in eight federal states by March 15 and in another four federal states the following week. The remaining states did not follow suit until March 23 (Rhineland-Palatinate), April 2 (Berlin) and April 10 (Saxony and Saxony-Anhalt).

This synopsis shows that in times of crisis the federal coordination of actions hardly leads to delayed reactions. Almost all measures identified as necessary were implemented across the board within a few days.

Thesis 2: Federalism leads to fragmentation of the law
As shown at the beginning, the lack of clarity of the applicable infection protection regulations was a striking feature of German federalism during the time of the corona lockdown. In fact, this can be confirmed empirically - at least in part. From the wide variety of the contents of the regulations in the Corona ordinances, three areas are selected as examples: firstly, the hygiene measures, in particular the use of masks and bans on going out; second, the contact restrictions in public and private space; and thirdly, going back from closures to reopen facilities.

In the telephone line between the heads of government of the federal states and the Federal Chancellor on April 15, 2020, a recommendation was made to wear mouth and nose protection. Between April 20 and 29, all countries introduced a mask requirement, and in most countries this requirement was also subject to fines. The going out restrictions were much more inconsistent. In five federal states (Bavaria, Saarland, Saxony, Saxony-Anhalt and Brandenburg) going out bans were imposed, which essentially extended to the period from 23 March to 26 April (in Bavaria they were in effect from March 9th to May 3rd). In the other countries, moral appeals and voluntariness were used to restrict going out.

Finally, the contact restrictions varied widely between countries and over time, from being limited to members of the household, limited to numbers (one, two, or three additional persons) or limited to two households. The regulations relating to staying and moving around in public space were even more confusing. Here there are many conceivable combinations of distance requirements, personal contact restrictions, restrictions on the activity, the length of stay, the distance from the home and the like, which can no longer be meaningfully summarized or compared.

The way out of lockdown was also very inconsistent. The first loosening was introduced in the retail sector as early as mid-April 2020; for restaurants, facilities, sports and tourism, the states then took different approaches to withdrawing the lockdown measures, both over time and in terms of priorities, with the trend being unanimous across all countries went in the direction of easing. From April 27, pupils in the final year were allowed to go to school again in twelve countries, the other four countries followed suit the following week. It was not until June 15 that all pupils had at least some of their face-to-face classes again, with the summer holidays already starting on June 25 in some countries.

The examples show that the variety of regulations was indeed considerable and could easily lead to confusion for citizens. However, this is only partly due to the inconsistency of the regulations between the 16 countries. The high frequency of changes also contributed to the confusion within of a country. In North Rhine-Westphalia, a total of 45 ordinances, adjustment and amendment ordinances were issued in the study period of 15 calendar weeks, i.e. an average of three per week. 81 regulatory documents can be researched for Bavaria, which corresponds to almost one change per day.In Baden-Württemberg, in addition to central legal ordinances of the state government, the regulatory authority for detailed questions was increasingly delegated to the line ministries, so that in addition to 18 ordinances and general ordinances, well over 50 less visible orders and edicts were issued by the line ministries. The criticism of the legal fragmentation can therefore be confirmed in principle using the example of the corona infection protection measures. But it has to be taken into account that due to the high dynamics with which the situation developed, the legal situation was also confusing within the individual countries.

Thesis 3: Federalism protects individual freedom
On March 25, 2020, the German Bundestag determined the existence of an "epidemic situation of national scope" in accordance with the revised Section 5 of the Infection Protection Act (IfSG) amended by the Bundestag on the same day. This finding authorized the Federal Ministry of Health to restrict individual basic rights and to intervene in the federal distribution of competences according to Article 84 of the Basic Law. [21] The concerns expressed by constitutional lawyers in response to the amendment to the IfSG seem to have hardly been confirmed so far. [22] With regard to the federal distribution of competencies, the Federal Ministry of Health has left the enactment of the infection protection ordinances completely to the states and has only adopted a few regulations that relate to registration when entering from non-EU states and therefore do not fall within the competence of the states in any case. [23 ]

With regard to the restriction of individual rights, assembly bans, going out and contact restrictions and, last but not least, the mask requirement for Germany are unfamiliar measures. Nevertheless, the empirical comparison of the regulatory activities of the federal states shows that the competition between the federal states in particular significantly increases the pressure to justify political decision-makers and thus ultimately also increases the transparency of the justifications. If church services are allowed again in one federal state and not yet in the other, both governments are under increased public scrutiny as to whether these measures have the desired effect. Many a rush by a Prime Minister, who perhaps believed he could profile himself as a crisis manager or particularly close to the people in view of the approaching elections, was tacitly brought back into line with the mainstream through this mutual observation and adjustment, so that the bottom line - at least compared to neighboring European countries - a relative less intensive restriction of individual rights was implemented.

Thesis 4: Federalism leads to factually better decisions
This thesis cannot be empirically verified because the test requires counterfactual assumptions. Only arguments of plausibility can be used. The close coordination between the federal states and with the federal government is an important indicator for an intensive search process for the right solutions. Between March 12, 2020 and June 17, 2020, a total of eight official meetings between the heads of government of the federal states and the Federal Chancellor took place, while under normal circumstances one meeting would have taken place during the same period. These meetings were supplemented at the highest political level by conferences of the heads of the respective state chancelleries as well as regional meetings. Coordination bodies between the actors in the health system were set up as part of the pandemic plans. Numerous informal meetings, telephone calls and agreements ultimately ensure a constant, close exchange between all actors. The constant recourse to current scientific knowledge is a further characteristic of the rationality of the decision-making process in a crisis. Competition between countries can also contribute to the rationalization of decisions, because it exerts pressure on politicians to justify and justify reasons. On the other hand, it became apparent that this competitive pressure also induced top politicians in the federal states to deviate from joint agreements in order to raise their profile. The effect of competition on the quality of the decisions is therefore ambivalent. After all, the comparison of the course of the pandemic in Germany with other Western democracies indicates that the decisions made were probably not entirely factually wrong.

Thesis 5: Federalism ensures a production of public goods and services that is adapted to regional needs
The federal distribution of competencies accommodated the need to react to an infection process that was highly differentiated regionally from the start. Bavaria, which was one of the first federal states to be affected by the virus via returning skiers from Tyrol and South Tyrol, was able to react quickly and autonomously. The strength of this strategy in relation to a centrally controlled reaction to the pandemic was picked up in a telephone switch on May 6, 2020, when the competence to issue infection control measures was even decentralized from the country to the districts. Since then, each district or urban district can independently decide whether to impose local and partial lockdowns if the average number of newly infected people over the past seven days is over 50 per 100,000 inhabitants.

The praise from abroad for Germany's successful crisis management is also based on the fact that the decentralized action and supervisory competence of the health authorities has made it possible to procure hygienic protective equipment much faster, to expand test and tracking capacities and thus to gain a great deal of ability to act.

However, the argument should not be generalized in the sense of an undifferentiated principle of subsidiarity to the effect that, if possible, all decisions should be made at the lowest level. Rather, the application of the principle of subsidiarity presupposes that one knows which decision has which scope and should therefore be made at a higher or lower level. The Corona app, for example, could simply only be developed centrally for all of Germany. Problems of data protection or, for example, the introduction of learning and communication apps in schools, which as a rule should be organized centrally rather than decentrally, are similar. However, the high temporal and regional dynamics of the infection process in particular suggest a strongly decentralized regulation of the infection protection measures, as it has been implemented in Germany from the beginning.

Final considerations

As a result, it becomes clear that a certain degree of confusion and fragmentation of the legal framework requires a high degree of information processing from the citizens; Political competition, as an undesirable side effect, also offers political decision-makers who are ambitious to vote, incentives for strategic communication. In the phase of the corona lockdown, however, an efficient balance was ultimately found in spring 2020 between central, multilaterally negotiated and coordinated as well as individual, decentralized decisions.

German federalism was never radically dualistic, but always cooperative and based on the normative guiding principle of equal living conditions, so that even in times of crisis there was no great danger of legal fragmentation. The routines of coordination were intensified, and in this way uniform regulations could be implemented in essential points within a very short time. Contrary to the popular criticism of federalism, it has proven to be efficient and productive, especially during the crisis. The overarching centralization that would have made the reform of the IfSG possible was dispensed with, but this risk must also be controlled for the future in order to preserve the freedom-securing, rationality and welfare-increasing advantages of the federal power-sharing.