The « Law-Regulation Distinction » and European Integration : Reflections on the German Jurisprudence from the 1960s to the Present

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 [1]I. Some Initial Comparative Reflections

 [2]To speak of a law-regulation distinction, as my title does, is to use terminology that should be immediately familiar to the French reader. In fact, the phrase draws directly from Articles 34 and 37 of the French Constitution of 1958, perhaps the most formalized expression of the distinction in comparative constitutional law. I am referring, of course, to the constitutional allocation of normative power between the legislature and the executive in a modern administrative state. In France, Article 34 defines the normative power belonging to parliament (the realm of la loi), and Article 37 defines that belonging to the government (the realm of le règlement). Textually at least, these provisions seem to establish the government’s regulatory power as le pouvoir du droit commun, whereas the constitutional realm of la loi is one of attribution, in principle exceptional or limited, operating against the background of the executive’s otherwise autonomous normative power. The implication is that, in disputes over the scope of legislative and regulatory norm-production in France, a presumption is supposed to operate in favor of the government’s power under Article 37 unless one can show that the norm falls within the domain constitutionally attributed to the legislature under Article 34. This was almost certainly the intent of the drafters of the Constitution of 1958, notably Michel Débré. But as French readers well know, the decisions of both the Conseil d’État and the Conseil constitutionnel have, over time, not conformed precisely to that original intent. The case law, rather, often suggests a continuing attachment to somewhat older understandings of the executive’s normative power as still derived from, rather than fully autonomous of, enabling legislation adopted by parliament. The Conseil d’État and the Conseil constitutionnel have of course not ignored the import of Articles 34 and 37 (how could they ?) even as they have deviated somewhat from this original intent. The judgments of these bodies acknowledge how the Article 34-37 distinction responds to a functional demand for increased regulatory freedom of the executive in the modern administrative state.

Given that functional demand, it should hardly surprise us that other systems have tried to strike a similar balance. On the one hand, they have recognized the need for increased executive power in an era of administrative governance ; on the other hand, they have sought to reconcile that reality with older conceptions of separation of powers, in which the legislature still plays the preeminent role. In the United States, for example, we do not speak of a law-regulation distinction as such, though the distinction clearly exists in our law. Rather we speak of the nondelegation doctrine as an aspect of our constitutionally grounded system of separation of powers. This is a relatively weak doctrine, to be sure, in part because of the same, pervasive functional demands that gave rise to Articles 34 and 37 in France. But in the US concerns are still felt over the proper limits of delegation. In our understanding, the demands of constitutional separation of powers still constrain Congress’s power to shift normative (rulemaking) power to non-legislative actors—the President, executive departments and agencies, as well as so-called independent agencies. We often trace the ideological origins of this constraint to John Locke’s famous injunction in the Second Treatise of Government (1690) : “The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.” American courts, however, do not interpret this Lockean concern as a strict prohibition but rather as a loose parameter whose spirit is fulfilled if Congress adequate defines an intelligible principle or standard by which to guide executive and administrative rulemaking. In this way, our eighteenth century system of separation of powers is reconciled, however, imperfectly, with the functional requirements of delegation of regulatory power in the modern administrative state.

In German constitutional law—the principle focus of this contribution—several provisions of the Basic Law of 1949 reflect a similar drive to distinguish the normative power of the legislature with the regulatory authority that might lawfully be transferred to the executive. The German conceptual framework is perhaps closer to the American than the French model, owing in part to the influence of the Office of Military Government of the United States (OMGUS) over constitution drafting in the western zones of occupation at the end of the 1940s. [3] Article 80(1), for example, specifically authorizes the legislature to delegate regulatory power to the executive. But it also subjects that authorization to the constitutional requirement that parliament statutorily define the “content, purpose, and scope” (Inhalt, Zweck, und Ausmaß) of the executive’s normative authority in the statute itself. Also important in the German context (particularly in view of the disaster of the National-Socialist dictatorship of 1933-1945) is Article 129(3). This provision declares “void” any purported grant to the executive of a power “to issue provisions in place of statutes.” Finally, the so-called “eternity clause” of Article 79(3) permanently entrenches the separation of powers between the legislative and executive branches by, among other things, rendering the elements of the German constitutional system outlined in Article 20 (establishing West Germany as “a democratic and social federal state” with all public authority emanating from the “people” through elections, with powers separated between the executive, legislative, and judicial branches) as constitutionally unamendable.

The law-regulation distinction in Germany is further reflected in a number of doctrines articulated by the Federal Constitutional Court—the Bundesverfassungsgericht—in the postwar decades. These include the Vorhersehbarkeitsformel, which focuses on whether the content of any future regulation is foreseeable from the statute itself ; the Selbstentscheidungsformel, which focuses on whether the legislature has itself decided the limits of the regulated area as well as the goals of the regulation ; and the Programmformel, which focuses on whether the statute has defined with sufficient clarity the regulatory program. [4] If the answer to any of these queries is affirmative, then the delegation is generally understood to satisfy the separation-of-power demands of the Basic Law. The decisions of the Bundesverfassungsgericht have also worked to define the Vorbehalt des Gesetzes, or the notion that there are certain domains “reserved to legislation.” [5] This operates in conjunction with the so-called Wesentlichkeitstheorie (“theory of essentialness”) through which the Court has sought to protect what it views as the “essential” functions of the parliament in the adoption of any legislative norms that might have an impact on constitutionally guaranteed rights or some other fundamental aspect of public policy.

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