¹ These persons are entitled to German citizenship; according to Article 116 (1) of the German constitution (Grundgesetz or Basic Law, BL), they are “Germans within the meaning of the Basic Law” even if they do not have German citizenship. Article 116 (1) reads: “Unless otherwise provided by law, a German within the meaning of this Basic Law is a person who possesses German citizenship or who has been admitted to the territory of the German Reich within the boundaries of December 31, 1937 as a refugee or expellee of German ethnic origin or as the spouse or descendant of such person.” The respective “resettlement act” granted even more persons a right to enter Germany and obtain citizenship. In the 1990's, after the fall of the Soviet Union, hundreds of thousands of persons seeking resettlement entered Germany. They easily outnumbered the number of refugees, but in contrast to the heated discussions about the constitutional right to asylum in the Basic Law, this topic was avoided by all political parties.Google Scholar

² Available at http://www.bpb.de/zuwanderung/dokumente/suessmuth-Bericht.pdf.Google Scholar

³ Traditionally, “mixed” coalition governments on the state level (i.e. between parties that also form the Federal Government and parties that are part of the opposition on the Federal level) stipulate in their coalition treaties that they abstain from voting when controversial issues are at stake.Google Scholar

⁴ See, supra, note 3.Google Scholar

⁵ The President of the Bundesrat is voted for a period of one year, see § 5(1) GOBR. It is usually rotating between the Prime Ministers of the Länder.Google Scholar

⁶ 774^th plenary session of 22 March 2002; plenary record 774 to Drs. 157/02, pp. 171 ff.Google Scholar

⁷ Schönbohm finished his speech with a pompous citation from a Prussian General: ”Ladies and Gentlemen, I cannot decide otherwise. My responsibility for my fatherland forces me to do so. I want to close with the confession of General von der Marwitz, a contemporary of Friedrich the Great, who said: “I chose disgrace where obedience did not do honour” [“Wählte Ungnade, wo Gehorsam keine Ehre brachte.”]. See paragraph 21 of the judgement.Google Scholar

⁸ Alwin Ziel is Minister for Social Affairs of Brandenburg and was one of the four Brandenburg members of the Bundesrat.Google Scholar

⁹ Statements noted in brackets in the plenary records are understood as interrupting or heckling statements.Google Scholar

¹⁰ This happened in a talk show where Müller was asked to talk about politics and theatre.Google Scholar

¹¹ So far, in the history of the Federal Republic of Germany the Presidents had denied certification to acts passed on to them in six cases, partly for formal, partly for material reasons. For further information, see www.bundespraesident.de/Downloads/ListeUmstrittenerGesetze.pdf.Google Scholar

¹² www.bundespraesident.de/Downloads/erklaerung.pdf.Google Scholar

¹³ Bavaria, Saarland, Saxony and Thuringia.Google Scholar

¹⁴ Baden-Württemberg and Hesse.Google Scholar

¹⁵ Article 77(1)(1) BL.Google Scholar

¹⁶ Article 50 BL.Google Scholar

¹⁷ See Article 78 first alternative.Google Scholar

¹⁸ Articles 30, 70(1) BL state that the exercise of all state powers, namely the right to legislation^, is incumbent on the Länder insofar as the Basic Law does not explicitly confer powers on the Federation. It does so, though, in broad terms, pointing out areas of exclusive federal legislation (esp. Articles 71, 73, 105(1); in areas of exclusive federal legislation, the Federation has sole jurisdiction to legislate)^, areas of concurrent legislation (Articles 72, 74, 74 a, 105(2); on matters within the concurrent legislative power, the Länder have the right to legislate as long as and to the extend that the Federation has not exercised its legislative powers by enacting a law) and areas of federal framework legislation (Article 75; with framework legislation, the Federation has the power to enact provisions forming a framework for Land legislation). The Immigration Act fell into the scope of Articles 73(No. 3) (freedom of movement, passports, immigration, emigration), 74(1)(No.4) (the law relating to residence and settlement of aliens), No.6 (matters concerning refugees and expellees), No.12 (labor law), Article 75(1) (No.5) (matters relating to the registration of residence or domicile and to identity cards).Google Scholar

¹⁹ Fischer-Lescano, Andreas/Spengler, Peter, Colère publique politique im Bundesrat, Kritische Justiz (KJ) 2002, p. 337 at p. 339. For a detailed examination of the legislative and administrative powers of the Federation concerning immigration, see Bothe, Die verfassungsgemäße Aufteilung der Verantwortung für Zuwanderung und Integration auf Bund und Länder und Gemeinden und Folgerungen für ein Organisationsmodell. Rechtsgutachten im Auftrag der unabhängigen Kommission ”Zuwanderung“, www.bmi.bund.de/Downloads/Bothe.pdf.Google Scholar

²⁰ Article 51(1) of the Basic Law. During the constitution-making process 1948/49, the discussions in the Parliamentary Council had focused on the question whether to follow the “Bundesrat principle” as described above, placing the members of the Bundesrat under authority of their home governments, or the “Senate principle”, where the Bundesrat members would have been voted by their home parliaments and thus independent from the governments of the Länder, see Jahrbuch für das öffentliche Recht der Gegenwart, neue Folge, Vol. 1, 1950, pp. 379 et seqq.Google Scholar

²¹ Article 51(3)(1) of the Basic Law.Google Scholar

²² Article 51(2) BL. Bremen, Hamburg, Mecklenburg-Vorpommern and Saarland are entitled to three votes, Berlin, Bremen, Rhineland-Palatinate, Saxony, Saxony-Anhalt, Schleswig-Holstein and Thuringia to four votes, Hesse to five votes, Baden-Württemberg, Bavaria, Lower Saxony and Northrhine-Westfalia to six votes each.Google Scholar

²³ Article 52(3)(1) of the Basic Law. The majority is reached by 35 (out of a total of 69) votes.Google Scholar

²⁴ The norm goes on: ”[…] and only by Members present or their alternates.“.Google Scholar

²⁵ See Gröschner, Rolf, Das Zuwanderungsgesetz im Bundesrat, Juristenzeitung (JZ), 2002, 621 et seqq. with further references; Linke, Tobias, Bundesrat in der Verfassungskrise, Verwaltungsrundschau (VR) 2002, 229 et seqq.; Schenke, Wolf-Rüdiger, Die verfassungswidrige Bundesratsabstimmung, Neue Juristische Wochenschrift (NJW), 2002, 1318 et seqq.; Ipsen, Jörn, Gespaltenes Votum bei Abstimmungen im Bundesrat (Art. 51 Abs. 3 Satz 2 GG), DVBl., 653 et seqq.; Fischer-Lescano, Andreas/Spengler, Peter, Colère publique politique im Bundesrat, KJ, 2002, 337 et seqq.Google Scholar

²⁶ Paragraph 136 of the judgment; also dissenting vote, paragraph 174.Google Scholar

²⁷ Paragraph 137 of the judgment.Google Scholar

²⁸ Para. 138.Google Scholar

²⁹ Para. 140.Google Scholar

³⁰ Paras. 141 et seq.Google Scholar

³¹ Paras. 143 et seqq.Google Scholar

³² Para. 141.Google Scholar

³³ Paras. 149 et seq.Google Scholar

³⁴ Para. 152.Google Scholar

³⁵ Paras. 157 et seqq.Google Scholar

³⁶ Paras. 162 et seqq.Google Scholar

³⁷ See § 32 Satz 1 GOBR.Google Scholar

³⁸ § 32 Satz 2 GOBR.Google Scholar

³⁹ In about every second sitting of the Bundesrat., paragraph 164 of the judgement. Although one can presume that usually the quest for repetition is due to uncertainty about the proper counting of the votes, no reasons need to be given.Google Scholar

⁴⁰ Para. 166 [emphasis added by the authors].Google Scholar

⁴¹ Para. 170.Google Scholar

⁴² Paras. 168 et seq.Google Scholar

⁴³ Para. 174.Google Scholar

⁴⁴ Para. 175.Google Scholar

⁴⁵ Para. 175.Google Scholar

⁴⁶ Paras. 175, 161. The Constitutional Court developed the “evident irregularity” standard in BVerfGE 31, 47 (53); 34, 9 (25); 91, 148 (175).Google Scholar

⁴⁷ Para. 176.Google Scholar

⁴⁸ Para. 177.Google Scholar

⁴⁹ Para. 178.Google Scholar

⁵⁰ Para. 179.Google Scholar

⁵¹ Gertrude Stein, Die Welt ist rund/A rose is a rose is, Hamburg 2001 (Ritter).Google Scholar

⁵² Karlsruhe hath spoken, the case is closed.Google Scholar

⁵³ On 2 February 2003, these Länder hold elections for their state parliaments. Most polls see a clear majority for the CDU or good chances for CDU/FDP coalitions in both states. As a result, Schröder will probably have to deal with a Bundesrat opposition for the rest of his chancellorship.Google Scholar

⁵⁴ 773 is the exact number of sessions of the Bundesrat until 22 March 2002. Each session usually contains of a number of voting procedures on all the topics the Bundesrat is involved in.Google Scholar

⁵⁵ It is unclear whether there were two or three out of the eight judges dissenting. During his television presentation of the judgement, the Chairman of the Second Senate of the Court, Vice President Professor Hassemer, pointed out that the ruling of the Court does not contain any information about the result of the voting. He argued that the Court did not want to feed the “undue speculations” in the press about Justices not voting along party lines.Google Scholar

⁵⁶ BVerfGE 8, 104 (120).Google Scholar

⁵⁷ Bush et al. v. Gore et al. (00-949), 12 December 2000. The judgement can be found at http://supct.law.cornell.edu/supct/index.php Google Scholar

⁵⁸ See the dissenting opinion written by Justice Breyer, (with whom Justice Stevens and Justice Ginsburg join except as to Part I—A—1, and with whom Justice Souter joins as to Part I), http://supct.law.cornell.edu/supct/index.php Google Scholar

⁵⁹ See for example Alexy, Robert, Theorie der Grundrechte, 1986, and Theorie der juristischen Argumentation, 2^nd ed., 1991; Simon, Dieter, Die Unabhängigkeit des Richters, 1975.Google Scholar

⁶⁰ Para. 142.Google Scholar

⁶¹ Para. 143.Google Scholar

⁶² Para. 145.Google Scholar

⁶³ The Court confirmed this right in his judgement; for details, see above under III.Google Scholar

⁶⁴ The majority opinion interprets this case as a pure “irritation” or misunderstanding within the delegation of Northrhine-Westfalia, see paragraph 146 of the judgment. The dissenting Justices hold a different point of view: They suppose that a disagreement about how the cabinet of Northrhine-Westfalia had decided to vote was responsible for the yes/no vote, see paragraph 175 of the judgment.Google Scholar

⁶⁵ See Herzog, Roman, Zusammensetzung und Verfahren des Bundesrates, in: Isensee, Josef/Kirchhof, Paul (eds.), Handbuch des Staatsrechts vol. II, 1987, p. 505, 510; Scholz, in: Maunz/Dürig/Herzog/Scholz (eds.), Grundgesetz-Kommentar, vol. III, Article 51 note 16 seq.Google Scholar

⁶⁶ Para. 149, emphasis added by the authors.Google Scholar

⁶⁷ Para. 149.Google Scholar

⁶⁸ Para. 149.Google Scholar

⁶⁹ It is worth mentioning, though, that Stolpe broke the coalition agreement between SPD and CDU when he consented to the act. A judgment counting the Brandenburg vote as valid could thus have been marked as a reward for Stolpes' “treason”.Google Scholar

⁷⁰ Para. 174.Google Scholar