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Enabling act

Act of law enabling an agency such as an executive branch to take actions

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Germany

The German word for an enabling act is Ermächtigungsgesetz (lit. 'empowering law'). It usually refers to the enabling act of 23 March 1933 which became a cornerstone of Adolf Hitler's seizure of power.

Acts of 1914–1927

The first enabling act is dated from 4 August 1914 just after the German entry into World War I. With the vote of the Social Democratic Party, the Reichstag (the German Empire's parliament) agreed to give the government certain powers to take the necessary economic measures during the war. Such enabling acts were also common in other countries. The Reichstag had to be informed, and had the right to abolish a decree based on the enabling act. This ensured that the government used its rights with care and only in rare cases was a decree abolished. The parliament retained its right to make law.

In the Weimar Republic (1919–1933), there were several enabling acts: three in 1919, one in 1920, one in 1921, three in 1923, one in 1926, and one in 1927. The enabling act on 24 February 1923, originally limited until 1 June but extended until 31 October, empowered the cabinet to resist the occupation of the Ruhr. There was an enabling act on 13 October 1923 and an enabling act on 8 December 1923 that would last until the dissolution of the Reichstag on 13 March 1924.

Most of them had a temporal limit but only vague thematic limits. On the basis of these acts, a vast number of decrees were signed with enormous importance for social and economic life, the judicial system, and taxes. For example, the reform of German currency in response to hyperinflation, the merger of the Länderbahnen into the Deutsche Reichsbahn national railway system, and unemployment pay were settled via such decrees (Vollmacht-Verordnungen). The Emminger Reform of 4 January 1924 abolished the jury as trier of fact and replaced it with a mixed system of judges and lay judges in Germany's judiciary which still exists today.

These enabling acts were unconstitutional, as the Weimar constitution did not provide the possibility that one organ (parliament) would transfer its rights to another one (executive government). But constitutional experts accepted them because they came into existence with a two-thirds majority, the same majority as for constitutional changes. The government had succeeded in gathering those majorities by threatening to call for presidential emergency dictatorial decrees (Notverordnungen), otherwise. In March 1924, the Reichstag wanted to discuss the abolition of decrees (which were granted by the enabling act of February that year). President Friedrich Ebert dismissed parliament to avoid discussion and abolishments.

In later years, governments failed to gather two-thirds of majorities since the radicalization of the revolutionary national-conservative German National People's Party in 1928 and the rise of the National Socialist Workers' Party (Nazi Party) after 1930. Chancellor Heinrich Brüning (1930–1932) worked with presidential decrees which replaced most of the ordinary legislature, eventually.

The enabling acts had set a poor and dangerous example, but for the government, they had the advantage that they appeared less unconstitutional and dictatorial compared to presidential decrees. Parliament could prefer those acts because they were valid only for a limited time and included mostly a kind of cooperation (e.g. via a special house committee).

Enabling Act of 1933

The German word Ermächtigungsgesetz usually refers to the Enabling Act of 1933, officially Gesetz zur Behebung der Not von Volk und Reich ("Law to Remedy the Distress of the People and the State"). It became a cornerstone of Adolf Hitler's seizure of power. Unlike, for example, Wilhelm Marx's enabling act of December 1923, Hitler's Act:

  • was limited to four years, not several months;
  • enabled government not only to create decrees, but even laws and treaties with other countries;
  • allowed laws to deviate from the Weimar Constitution;
  • did not impose thematic limits;
  • did not provide a right to control or abolish these laws, not for any house committee nor the Reichsrat (the common organ of the states of Germany).

In comparison to the situation of the 1920s, Hitler's Nazi Party and his coalition partner the DNVP did have a parliamentary majority since the general elections of 3 March 1933. Those elections and then the voting in the Reichstag were carried out in a climate of intimidation and violence carried out by right-wing paramilitary groups such as the Nazi Sturmabteilung. On 23 March, the Communist Party of Germany was already banned and its delegates imprisoned, the Social Democrat delegates were the only ones present in the Reichstag to vote against, while the Centre Party and centre-right parties voted yes.

The Enabling Act of 1933 was renewed by a purely Nazi Reichstag in 1937 and 1939. In 1941 and 1943, it was renewed by decree, though without a time limit in 1943. Although it states that it is valid only for the duration of the current Hitler government of 1933, it remained in force even after major changes of ministers. In any case, Hitler called the cabinet together only very rarely after the first months of 1933. The last cabinet meeting happened in 1937. He preferred to govern via decrees and personal orders.

Federal Republic

Following the enactment in 1949 of the Basic Law (Grundgesetz), there have been no enabling acts in the Federal Republic of Germany. The constitution states that it can be changed only by an explicit alteration of the phrasing.

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