Executive Extremes: German Lessons for Our Authoritarian Era

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Jahrbuch des öffentlichen Rechts der Gegenwart

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There is growing alarm about the world-wide trend towards increasing executive power. The need for decisive action in the face of the coronavirus crisis has enhanced the role of executive power and deepened concerns about overreach. Much of the anxious commentary looks back to the rise of Hitler and the Nazis in inter-war Germany as a cautionary tale and for a detailed accounting of the policies and practices of modern authoritarianism. But very little attention has been paid to the unique German response to that history. In this article I offer the surprising insight that Germany’s post-war constitutional order responded to the Nazi regime by instituting and enabling – rather than disempowering – a strong chancellor. Germany’s response to Hitler was to double-down on executive power. This begs the question: What has kept Germany from shambling towards authoritarianism despite the chancellor’s immense strength? Drawing on insights from the 2015 refugee crisis, I argue that “hard” and “soft” constitutional limits work in concert with Germany’s evolving “guardrails of democracy” to keep the country’s powerful chancellor in check. More than the rise of Hitler, this might be Germany’s most profound contribution to our understanding of how to limit executive power.