Article 48 of the constitution of the Weimar Republic of Germany (1919–1933) allowed the President, under certain circumstances, to take emergency measures without the prior consent of the Reichstag. This power was understood to include the promulgation of "emergency decrees (Notverordnungen)".
Contents
Interpretation
The text of the Article did not precisely define the kind of emergency that would justify its usage, and did not expressly give the President the power to enact, issue or otherwise promulgate legislation. However, such an inherent Presidential legislative power is fairly implied, since the Article expressly gives the Reichstag the power to cancel the emergency decree by a simple majority vote, and this parliamentary power implies that the issuance of the decree could, by its express terms or its operation, impinge on the Reichstag's constitutional function.
Article 48 required the President to inform the Reichstag immediately of the issuance of the emergency decree and gave the Reichstag the power to nullify the emergency decree by simple majority action. The Reichsrat, or upper house, was not involved in this process at all. If the Reichstag nullified the decree, the President could in effect counter-retaliate under Article 25, and dissolve the Reichstag and call for new elections within 60 days.
History
Following the Treaty of Versailles, there was a period of hyperinflation in the Weimar Republic between 1921 and 1923, then the Occupation of the Ruhr between 1923 and 1925. Friedrich Ebert, a Social Democrat and the Republic's first President, used Article 48 on 136 occasions, including the deposition of lawfully elected governments in Saxony and Thuringia when those appeared disorderly. On 29 August 1921 an emergency proclamation was issued limiting the wearing of imperial military uniforms to current serving members of the armed forces. Ebert had granted Chancellor Wilhelm Cuno considerable latitude under Article 48 to deal with the inflation and with matters related to the Mark. The Emminger Reform of 4 January 1924 abolished the jury system as triers of fact within the judiciary of Germany and replaced it with a mixed system of judges and lay judges which still exists today.
Article 48 was used by President Paul von Hindenburg in 1930 to deal with the economic crisis of the time. During spring and summer 1930, Chancellor Heinrich Brüning found his government unable to obtain a parliamentary majority for its financial reform bill, which was voted down by the Reichstag. but the government did not seriously try to negotiate with the Parliament to find a modus vivendi. Instead, Brüning asked Hindenburg to invoke Article 48 in order to promulgate the bill as an emergency decree and thereby give Brüning's government the authority to act without the consent of the Reichstag. When Hindenburg gave his authority and issued the decree, the Reichstag repudiated the decree, by a small majority on 18 July 1930. Under Article 48, this vote by a majority of the Reichstag members invalidated the presidential decree. Faced with a breakdown of parliamentary rule at a time when the economic situation demanded action, Brüning asked Hindenburg to dissolve parliament and call for new elections. The Reichstag was accordingly dissolved on 18 July and new elections were scheduled for 14 September 1930.
The election produced increased representation in the Reichstag for both the Communists and, most dramatically, for the Nazis, at the expense of the moderate middle-class parties. Forming a parliamentary majority became even more difficult for Brüning. In fact, just to conduct the normal business of government, he was forced to invoke Article 48 several times between 1930 and 1932. Subsequent governments under chancellors Franz von Papen and Kurt von Schleicher during the tumultuous year 1932 obtained President Hindenburg's decree of legislation under Article 48 when they too found it impossible to obtain a parliamentary majority as the extremist parties on the left and right gained power.
The invocation of Article 48 by successive governments helped seal the fate of the Weimar Republic. While Brüning's first invocation of a Notverordnung may have been well-intentioned, the power to rule by decree became increasingly used not in response to a specific emergency but as a substitute for parliamentary leadership. The excessive use of the decree power and the fact that successive chancellors were no longer responsible to the Reichstag probably played a significant part in the loss of public confidence in constitutional democracy, in turn leading to the rise of the extremist parties.
Nazi use
On 30 January 1933, Adolf Hitler was named Chancellor of Germany. Lacking a majority in the Reichstag, Hitler formed a coalition with the Nationalists. Not long afterwards, he called elections for 5 March. Six days before the election, on 27 February, the Reichstag fire damaged the house of Parliament in Berlin. Claiming that the fire was the first step in a Communist revolution, the Nazis used the fire as a pretext to get the President, Hindenburg, to sign the Reichstag Fire Decree, officially the Verordnung des Reichspräsidenten zum Schutz von Volk und Staat (Presidential Decree for the Protection of People and State).
Under the decree, issued by Hindenburg on the basis of Article 48, the government was given authority to curtail constitutional rights including habeas corpus, free expression of opinion, freedom of the press, rights of assembly, and the privacy of postal, telegraphic and telephonic communications. Constitutional restrictions on searches and confiscation of property were likewise suspended.
The Reichstag Fire Decree was one of the first steps the Nazis took toward the establishment of a one-party dictatorship in Germany. With several key government posts in the hands of Nazis and with the constitutional protections on civil liberties suspended by the decree, the Nazis were able to use police power to suppress, intimidate and arrest their opposition, in particular the Communists. Hitler's subversion of the Constitution under Article 48 thus had the mark of legality.
The 5 March elections gave the Nazi-DNVP coalition a narrow majority in the Reichstag. Nonetheless, the Nazis were able to maneuver on 23 March 1933 the passage of the Enabling Act by the required two-thirds parliamentary majority, effectively abrogating the authority of the Reichstag and placing its authority in the hands of the Cabinet (in effect, the Chancellor). Over the years, Hitler used Article 48 to give his dictatorship the stamp of legality. Thousands of his decrees were based explicitly on the Reichstag Fire Decree, and hence on Article 48. The Reichstag Fire Decree remained in effect for the entire Nazi era; thus, for the next 12 years, Hitler ruled under what amounted to martial law.
Lessons learned
The misuse of Article 48 was fresh in the minds of the framers of the Basic Law for the Federal Republic of Germany. They decided to significantly curb the powers of the president, to the point that he, unlike his Weimar predecessor, has little de facto executive power. Also, to prevent a government from being forced to rely on decrees to carry on normal business, they stipulated that a chancellor may be removed from office only if there is already a positive majority for a prospective successor.