Die Zauberlehrlinge (The Sorcerer’s Apprentices) is a new book on the German response to the European asylum crisis. It has two authors: Maximilian Steinbeis, editor of Verfassungsblog, a site featuring commentary “on matters constitutional” by left-of-center academics, and Stephan Detjen (g) who is currently Chief Correspondent of Deutschlandradio, a nationwide public-radio station.
This post is a bit long, so I split it into a few parts. Feel free to skip past the introduction if you’re familiar with the subject.
IV. Does the Legality Debate Matter?
I’ll cite to epub location numbers, since I read the book on Kindle:
There’s a lot to like about The Sorcerer’s Apprentices (I’ll use the English translation of the title for convenience). It provides an clear account of the background to Angela Merkel’s decision to open Germany’s borders to refugees border-opening in 2015, and a survey of the legal debate that decision provoked. Detjen and Steinbeis have also done some original reporting and spoken to some of the main actors. The authors admit they are parti pris: they believe the border opening was legal and generally favor Merkel’s refugee policy.
They haven’t found out anything that changes the narrative, but they provide richer context. If journalism is the first draft of history, a book like this is the second. The Sorcerer’s Apprentices is also written in lively, readable prose. Lay readers may find some of the legal discussions a bit abstract, but these are complex issues, and you can only simplify up to a certain point before sacrificing necessary nuance. The book is also largely free of the supercilious tone and personal jabs for which Steinbeis is notorious, although there are a few lapses.
The book’s main argument: The decision of Angela Merkel and her senior advisers to open Germany’s borders in the fall of 2015 was legal under German and European law. In fact, it wasn’t even a decision to “open” the borders, since the border between Germany and its EU neighbors was open under the Schengen Agreement, which eliminated all border controls within the EU. Strictly speaking, Merkel simply decided not to impose border controls on the masses of incoming migrants (I’ll use “opened the borders” merely as shorthand). Merkel’s decision, the authors maintain, was permitted, potentially even required, by German and EU law.
Nevertheless, a cottage industry of conservative skeptics soon began arguing that the decision was not only wrong, but lawless. A main player in this development was Horst Seehofer, the Minister-President of Bavaria and leader of the Christian Social Union (CSU) political party. Before the recent advent of the AfD, the CSU was the most conservative party in Germany, breaking a lance (to use a German expression) for law and order, family, faith, and tradition from its traditional seat in rural Bavaria. The CSU is in a close coalition with the more mainstream CDU — in fact they are called “sister parties”. Seehofer realized that large portions of his CSU base rejected Chancellor Merkel’s decision to open the borders. He was also directly affected by the decision, since the vast majority of migrants entered Germany through his (and the CSU’s) home state of Bavaria.
Seehofer had always grumbled about Merkel’s decision, and in 2016, described conditions at the border as a “Herrschaft des Unrechts“. This phrase needs to be unpacked a little. In German, law as a concept, as in the “rule of law”, is Recht. Unrecht is its opposite, as the prefix implies. Yet Unrecht is more than mere chaos or lawlessness. Unrecht implies not just arbitrary rule, but a sinister perversion of the law to oppress or persecute. The National Socialist dictatorship in Germany is the paradigm. Many Germans — but not all — would also describe the totalitarian dictatorships of the East Bloc as Unrecht. The mere fact that it’s controversial whether Unrecht applies to East Germany shows the word’s power: It describes such a dire state of affairs that even a Communist dictatorship might not qualify as Unrecht. Thus, when Seehofer called the state of affairs at the border “the rule of Unrecht,” this was strong stuff. It strikes me as an irresponsible exaggeration.
Steinbeis and Detjen claim that the use of the word Unrecht helped poison the debate about Merkels’ decision. It became part of what the authors call the Rechtsbruch Hypothese (illegality hypothesis)– the argument that Merkel’s decision was not just bad policy, but unlawful and illegitimate. Supporters of the illegality argument identify different kinds of illegality, but they all agree Merkel’s decision was illegal. The argument that Merkel’s decision was illegal received the support of two heavyweights: Udo di Fabio and Hans-Jürgen Papier, both former Justices on the German Federal Constitutional Court. This court is one of the highest in the land, and commands near-universal respect, even among those who disagree with many of its decisions. Di Fabio was hired by the Bavarian state government to write a 125-page expert opinion in which he strongly suggested — without coming out an explicitly saying so — that Merkel’s decision was illegal. Papier soon joined the debate with similar comments. You can read summaries of their positions in English in this blog post.
The authors argue that fact that two former Constitutional Court Justices pronounced Merkel’s decision likely illegal had a profound impact on the public debate. Horst Seehofer, after reading di Fabio’s report, threatened to challenge Merkel’s decision before the Federal Constitutional Court, but coyly backed down, a decision the book’s author’s justly criticize. Although di Fabio and Papier made the most headlines, they were joined by other experts with less celebrity: conservative professors of constitutional law and the very German doctrine of Staatsrechtlehre (a mixture of constitutional law, administrative and legal-theoretical analysis of the idea of “The State”, writ large). The authors observe: “the fixation on the State as the legal standard for judging political action is actually a German quirk which is impossible to explain to foreigners” (loc. 1853). These professors tend to be older, steeped in a certain kind of German legal traditionalism, and often euroskeptical in outlook.
These attacks from conservative scholars and judges on Merkel’s decision, the authors argue, helped create a popular “myth” of illegality. The person in the street might not be able to explain why Merkel’s decision to let millions of migrants enter was technically illegal, but it felt like the sort of thing which shouldn’t be happening, and now professors and former judges say it was illegal. Steinbeis and Detjen describe the result (loc. 137-38): Although the acute phase of the crisis is over, “it remains contemporary.” The illegality hypothesis continues to unfold its “corrosive effect.” There were “accusations but no trial. There was no hearing, no verdict, there was neither an acquittal nor a purifying sanction.” The question continues to fester like an open wound, fueling right-wing arguments that the Merkel government illegally decided to ignore the German Bundestag and impose massive changes in German society by mere whim (or perhaps even a “secret decree”). Since 2015, the Merkel government has only worsened the situation by issuing only vague and conflicting justifications for the decision. Merkel herself says she acted out of a basic humanitarian impulse. Thomas de Maizière, interior minister during and after the crisis, hinted vaguely during a press conference that “certain portions of German law have been superseded by (überlagert)” by EU law, but neither he nor any other senior official ever explained how or why exactly which German laws had been trumped by which EU laws. Nor, I might add, did senior officials explain why Germany’s legal representatives had agreed to allow EU law to supersede German law, or why citizens should accept that decision.
As Steinbeis and Detjen show (citing their own constitutional and EU law experts, generally younger and more left-leaning than the illegality camp), there were valid arguments that EU law (1) displaced German law on the subject; and (2) permitted, possibly even obliged, Germany to keep its borders open during the mass influx. They recount these arguments in minute detail; for an English summary of some of them see my previous post. Nickel summary: both the German Constitution and the Asylum Law on their face require Germany to turn back illegal immigrants at the border if they enter Germany from other EU countries. Nevertheless, both of those provisions contain “harmonization” basically saying that “this is the law in Germany now, but none of these laws prevent Germany from later signing international treaties which may contain different provisions.”
Germany has done just that: it signed onto the European Union’s Dublin III Regulation (which all EU countries must accept). That regulation says that when someone crosses into German territory from another country and claims asylum, Germany must provide them with a timely hearing to decide which EU country is responsible for deciding their asylum claim. And if Germany can’t figure that out quickly, then Germany itself becomes responsible for deciding their asylum claim. Since Germany was likely to end up being responsible for holding all these who-decides hearings anyway, it made sense to just let everyone in, then later go through their cases and decide if they should be sent elsewhere. Germany also had the option, under Article 17 (1) of the 2013 Dublin III regulation (pdf), to “take charge of” asylum claims itself, “even if such examination is not its responsibility under the criteria laid down in this Regulation.” Without expressly saying so, Merkel decided to follow this path, accepting all asylum-seekers for processing.
Merkel did not consult the German Bundestag before opening the borders, but she was not obliged to do so. Immigration policy is one of the areas of law traditionally assigned to the federal government, not only in Germany but in the United States and in any other federal country. A single country obviously cannot have different international border regimes in different states or provinces. There is no provision of German law or the German constitution which required Chancellor Merkel, the executive, to ask the Bundestag for approval of its decisions about policy at the border. Thus, it was legal for her not to consult parliament.
Are these arguments correct? The Federal Constitutional Court had a chance to decide this in December 2018. The right-wing Alternative for Germany party, the only major German political party to expressly reject Merkel’s decision, had gained 12.4 percent of the vote, and 94 seats, in the 2017 German federal elections (g). As a major political party, they were entitled to file an Organklage, a lawsuit in which one branch (or “organ”) of government sues another, claiming the other branch has exceeded its powers. The AfD claimed that the Chancellor had deprived the Bundestag of its prerogative to decide on issues of critical national significance. The Federal Constitutional Court, in December 2018, rejected the challenge (g) on procedural grounds, holding that it wasn’t the type of issue that could be raised in an Organklage. The Court thus never reached the question of whether Merkel’s decision was illegal. Steinbeis and Detjen deplore the Court’s decision to duck the issue, and they’re not alone (g).
Steinbeis and Detjen set themselves two principal tasks: To convince readers that Merkel’s decision to open the borders in 2015 was legal, and that the argument that it was illegal is more than a point of view in a routine policy disagreement. They enjoy a qualified success as to the first point, but, in my view, fall short of establishing point number two.
First, as to legality. The first and most obvious drawback to the legality argument (why it’s only a “qualified” success) is that it hasn’t won in any court yet. The Federal Constitutional Court, as noted, ducked the question in 2018. It wouldn’t be the first time a high court decided not to charge into the macerating crossfire of political controversy. The second problem with the legality thesis is its complexity. The argument in favor of legality has many moving parts. For it to prevail, the following conditions have to be satisfied: European law trumps German law in this area; that European law says what Detjens and Steinbeis (and the authors they cite) claim it says; that the fact that other countries have violated Dublin III does not relieve Germany of its obligation to follow Dublin III; that Merkel’s policy didn’t violate the overall intent of Dublin III; that Merkel’s decision did not threaten the identity of Germany as an autonomous state (something EU law cannot do); and that it was unnecessary for Merkel to obtain legislative approval to open the borders. Some of the links in the chain are strong, others weak. Most every link in this chain has been challenged.
It is a credit to the authors that they acknowledge and respond to the challenges to their point of view. But in doing so, they convince the reader that this actually is a highly debatable question. The author’s conviction that they are on the winning side is only that, their conviction. They make a good case that the illegality argument is the weaker argument. But they don’t establish that it’s frivolous. And this is why they don’t prevail on question two, either. To be sure, the vulgar formulation of the illegality argument, speckled with white-knuckled muttering about a soft coup, invasions, population replacement, a dictatorship of do-gooders, etc., is foolery. (Foolery which, by the way, has its counterpart on the left.) But any political argument — in fact, every political argument — can be turned into a tirade. The more sophisticated illegality arguments — that the decision was wrong under German law, not justified by EU law, and should have been submitted to parliament — have not convinced Steinbeis and Detjen, but they have convinced tens of thousands of intelligent people. This is evidence that the illegality argument is not frivolous, and hence not really a “myth”.
Steinbeis and Detjen argue that the rhetorical excesses of Seehofer (which they called “corrosive”) and the AfD go beyond legitimate argument; they poison the well of political discourse. The illegality argument, they say, is aimed at undermining the legitimacy of the German state and/or the European order. They assert this, but provide no real proof. I wasn’t convinced the illegality argument was a sinister calumny. Instead, it strikes me as merely one side in a political dispute. One clue why Steinbeis and Detjen view the illegality argument as so threatening may be found in Steinbeis’ blog post (g) responding to the FCC’s decision, in which Steinbeis claimed the illegality argument is based on “arch-racist” assumptions about the need to preserve the ethnic identity of the German Volk. The authors decline to re-iterate this argument in their book, for obvious reasons. At the end of the day, the illegality argument is just that: an argument. It is cynically used by some, but maintained in good faith by others. This is high-stakes political debate, not a threat to the republic.
The book’s argument is also undermined by its occasionally catty and snobbish tone. The authors launch a distasteful and superfluous personal attack on Ulrich Vosgerau, a law lecturer at the University of Cologne who represented the AfD in its argument before the Federal Constitutional Court. In a section literally entitled Der Gescheiterte — “The Loser” or “The Failure” — they note that after obtaining a Habilitation, the advanced degree needed to become a law professor in Germany, Vosgerau has yet to find a tenure-track position at a German university. They dismiss him as a “Kauz” (oddball), who decided to join the AfD’s legal team because he was an “academic failure” (“Vosgerau ist akademisch eine gescheiterte Existenz“, loc. 3,054). For some reason, they even recite a piece of gossip about him making a joke at legal conference which fell flat. Not only does this sniping lower the tone of the book, it also contradicts one of their other arguments, which is that the illustrious academic credentials of some proponents of the illegality thesis have blinded observers to the weakness of their arguments. To wit: People shouldn’t accept an argument just because it was made by a distinguished professor, but this argument was made by a guy who doesn’t even have a tenure-track position, which means he’s a “loser” (their word), and who would believe a loser?
The same supercilious tone permeates the authors’ discussion of the two expert opinions written by the former constitutional court judges. The authors endlessly repeat that Udo di Fabio was “paid” to provide his paid expert opinion which was bought by the Bavarian government. Did we mention it was paid? They even name a figure — based on speculation by an anonymous source — of €100,000, which di Fabio says is far too high. I suspect the response of many readers, like mine, will be: “So what”? Do the authors expect one of the most prominent lawyers and professors in Germany to donate hundreds of hours of his time? They also have a few jabs for the other Justice, Hans-Jürgen Papier, who they note is “constantly and painlessly” coming forward from retirement give the press his opinion on various and sundry constitutional issues (loc. 2273). They never explain why the fact that he’s often called on to give his opinions makes them any less sound. Indeed, Papier was allowed to explain his position on Merkel’s decision at length (g) on Verfassungsblog itself, noting quite sensibly that “the law in force at the moment has simply proven incapable of even halfway dealing with the mass movement of refugees.” Further, given that both authors themselves live by spouting their opinions, criticizing Papier seems like the pot calling the kettle black.
These jabs and bits of gossip are isolated instances, but they still distract from the authors’ main argument.
One thing stands out as you read Die Zauberlehrlinge: With only one or two exceptions, every one of the hundreds of people quoted or cited in the book is a lawyer, politician, bureaucrat, or journalist. This is understandable on one level: this book is about political and legal decisions, and the way they were discussed. Official discussions are one important part of the overall story. If book were about the allocation of jurisdiction between German and European courts, or the regulation of investment funds, there would be little cause to talk to anyone outside these rarefied circles.
But the decision Merkel made in 2015 had profound and far-reaching effects on millions of people, something neither Steinbeis nor Detjen contest. Yet the people who have to live with the decision — schoolteachers, police, asylum and welfare caseworkers, people who live near refugee shelters, intelligence officers, volunteer workers — never show up in the book, except in brief summaries of news reports. The book also never asks a very obvious question: What do German voters think of Merkel’s decision to open the borders? The book contains long and scholarly discussions of various definitions of democracy, and of the relationship between the law, the media, and the German Volk. Yet it barely mentions what those people, in whose name the government acts, think of what Merkel did.
To their credit, Steinbeis and Detjen largely (but, as we’ll see immediately below, not completely) avoid the rhetorical strategy which cropped up frequently in the heat of 2015: dismissing any and all objections to Merkel’s policy as “resentments” driven by racism and xenophobia. They abstractly concede that reasonable people can, and do, disagree with the policy. Yet when the “people” appear in this book, they take the form only of an undifferentiated mass vulnerable to manipulation by irresponsible rhetoric of right-wing politicians. Examples appear on every other page, here are just a few: the illegality argument has a “corrosive effect” (172); it is an “instrument of political mobilization” (187): it “manipulated emotional systems to arouse the public”, (344); “No further references or confirmation was necessary to convince a public which, during he migration crisis, had become susceptible to nationalistic yearnings and Islamophobic resentments” (4,124); “The power of this story was sufficient to convert [in the religious sense, bekehren] a large portion of the German public to believe in it.” (4,156).
As the last quote shows, the authors glancingly concede that many — if not most — Germans disagree with the laws which permitted 2015 to happen. But they treat this fact as irrelevant. Thus, nowhere in The Sorcerer’s Apprentices will you read that 53% of Germans (and 55% of Europeans) agree that “all further migration from mainly Muslim countries should be stopped,” or that majorities of Germans have consistently opposed Merkel’s refugee policy — see here (g) and here (g) and here (g) and here (g).
This is a product of the authors’ top-down conception of democracy, which is the standard belief system of center-left German intellectuals and lawyers. On this account, democracy has nothing to do with public opinion. Rather, democracy is the system of “principles” and “values” underlying the German Basic Law and various European enactments: fair procedures, individual rights, human dignity, personal privacy, the rule of law, etc. These principles live within a walled garden, tended to by educated professionals. The people are permitted to have their say, once every few years, to elect representatives who will care for and maintain these values. Outside of election day, though, public opinion can and should play no role. The public are simple, easily manipulated, and fickle. As the example of the 1930s shows, they can be seduced by demagogues. They are vulnerable to politicians who manipulate their “fears” and “resentments”. If you suggest that it’s a problem that a certain law is hugely unpopular, you will immediately be met by conditioned, practiced responses: you’re flirting with “populism”; you’re “sacrificing the rule of law on the altar of public opinion”, you’re “playing into the hands of demagogues”, etc.
These commentators do not recognize a middle ground between crude “give the people what they want” populism and an elite-focused “walled garden” idea of democracy. If they even discuss the unpopularity of a law, the tone is likely to be defiant: We are the last bastion of defense of the rule of law against the fickle masses. Of course, fundamental constitutional principles do need this defense. But the attitude of contempt for public opinion appears even in discussions of ordinary laws. Rarely do you encounter a German legal commentator who even acknowledges public opinion, or that there is a middle ground between the extremes of populism and the walled garden. Yet it’s possible to acknowledge that a law’s unpopularity is one indicator of the need for possible reform, without calling for the law to be replaced with whatever the latest poll demands. Lawyers and officials can show humility: the solution they devised may not be the best one, or may not work in practice. People who have to enforce and live with the laws may have valuable insights into their problems, and ideas for practical reform. And yes, a law may simply conflict with widely-held social values, either because the law is outdated, or because it was created by a narrow class of legislators who assumed incorrectly that their values matched those of the broader society whom they represent. (Or, for that matter, because the law was drafted by lobbyists (g) and enacted by political parties which receive millions in private donations (g)).
Steinbeis and Detjen never seriously consider that people may reject Merkel’s decision, and EU asylum law not because of the rhetorical mischief of right-wing “rat-catchers”, but because these laws conflict with their values and caused huge problems which they — ordinary taxpayers and voters — will have to deal with for decades.
IV. Does the Legality Debate Matter?
Steinbeis and Detjen also never directly address another central question: Do the laws which permitted 2015 make sense? To be sure, they discuss Dublin III’s failures in minute detail: they admit that most EU countries affected by the migrant flow ignored Dublin III, and that the “rule of law” broke down in 2015 (4,208). They admit that Dublin III procedures can be opaque and cumbersome. They admit that the European Court of Justice’s 2011 decision declaring Greece’s asylum procedures invalid cut the heart out of the Dublin system, since Greece would obviously have to handle the vast majority of asylum cases. They also discuss attempts to reform Dublin III, which have so far failed owing to disagreements among Member States.
Yet they never draw the obvious conclusion — the conclusion that practically cries out from the page — Dublin III, and European asylum law in general, is a hopeless failure. It imposes stupendous burdens on the most vulnerable EU members, creates an absurdly cumbersome method for determining asylum claims (German readers with any doubts as to this should read this (g) article describing the Kafkaesque procedure for dealing with migrants who move around within the EU), and leaves many crucial questions unanswered, creating disputes and disagreements. The proof of the pudding is in the eating: When Dublin III was faced with its first serious challenge, it collapsed. Only Germany’s decision to take in all asylum-seekers, even the ones it clearly wasn’t responsible for, prevented (more) chaos.
Against this backdrop, the issue of whether Merkel’s decision was legal or not fades into near-insignificance. It’s like a passenger arguing with a driver over whether they took a wrong turn 10 minutes ago — while flames shoot out from under the hood of their car. This book thus represents a missed opportunity: developing a workable European asylum regime is the most pressing near-term issue in European politics today. It’s a thorny problem, with starkly opposed interests on all sides. Europe is going to need everyone’s talent to come up with a solution. Alternately, Europe is going to have to face the prospect that it is simply impossible to create a workable Europe-wide asylum policy, and will have to manage the reversion to national asylum regimes. Yet Steinbeis and Detjen make no proposals for reform, even as they describe the many failures of existing law. This, to me, is a missed opportunity.
