The German Constitutional Court (Bundesverfassungsgericht) issued its ruling today: the German immigration law is unconstitutional because of Klaus Wowereit's procedure for counting votes in the Bundesrat. For the background, see my blog from Monday.

The New York Times has an article on it here, and you can read the Constitutional Court's press release here, and its opinion here. It looks as if the court adopted a straightforward approach to the intentions of the constitutional rule regarding unanimity in the state delegations in the Bundesrat. The dissenting judges were persuaded by the argument that Schönbohm's answer to Wowereit's request for a clarification amounted to an ambiguous declaration of his position ("You know my position, Mr. President") that should not be read in the context of Schönbohm's earlier rejection of the bill. The dissenters argued that Wowereit's second question started a whole new round of voting, suspended, as it were, in time and place without any contact with the earlier round that showed Brandenburg's partisan split.

Both the Times article and the editorial in the Sueddeutsche Zeitung note that the Court's decision means that parliament must take up the question of immigration anew. The SZ notes that both parties have declared that they will take up the exact same law and try to correct the deficient procedure, which the paper calls "correct". The SZ has no kind words for the Court, however: it accuses the Court of narrowness and a refusal to look at broader arguments that would address the position of the Bundesrat in the German constitutional framework. As far as I understand it, some had argued that the power of the Bundesrat to block legislation should be reexamined by the Court; a Court that undertook this investigation might have concluded that the procedures used by Wowereit were good enough to pass constitutional muster (as informed by a proper sense of the smaller role the Bundesrat should play in legislation). For the SZ, the fact of a powerfully reasoned dissent shows how easily the decision could have gone the other way.

I'd go with the majority here. The SZ seems to have hoped that the Court could save parliament from the difficulties of re-visiting this contentious issue. The NYT article gives a glimpse of the depth of the political disagreements that reign in German immigration policy. But looking to the Court for a way out of difficult political problems is not a good habit for legislators. German legislators already have a great deal of cover without an overhanging Court. Parties are strong in Germany, the electorate tends to identify with parties, elections are less frequent than in the U.S., and Germans still have a strong tradition of "division of labor" democracy, meaning that German voters are relatively content to let politicians struggle with difficult issues without the kind of intense, day-to-day popular pressure you see in the U.S.. Germans should treasure the legislative leadership skills that such a regime engenders.