Michael Bommes/Holger Kolb

From Federal Chaos to New Roles for all Federalist Actors: Integration and Federalism in Germany

Michael Bommes University of Osnabrück

Holger Kolb Sachverstaendigenrat deutscher Stiftungen für Integration und Migration

Prepared for discussion at the conference

Immigrant Integration: The Impact of Federalism on Public Policy

Brussels, Belgium

29-30 November 2010

DRAFT: NOT FOR QUOTATION OR CITATION Michael Bommes/Holger Kolb

From Federal Chaos to New Roles for all Federalist Actors: Integration and Federalism in Germany

Since the foundation of the Federal Republic of Germany the political areas of migration and integration policy have gone through different political ‘market cycles’. In the first decades of the existence of West-Germany migration and integration mostly remained outside the political mainstream of the national and the sub-national level and were ceded as fields of responsibilities to the municipalities. After the German reunification and the initiation of a long lasting process of political and legal normalization of these political areas the formerly fixed and gridlocked division of labor broke up and lead to a constellation which will be described in the following as ‘federal chaos’. Three quite recent and mutually independent political developments finally culminated in a kind of ‘federal equilibrium’ which to a certain extent disen- tangled the complicated federal interrelations and allocated new roles in the field of migration and integration to the different actors. The analysis of the different phases of federalist action in the realm of migration and integration policy requires as a first step the description and analysis of the roots and structures of the federal system in Germany, before in a second step three different phases of the relation of federalist action and the fields of migration and integration are introduced. Whereas the first phase, which was terminated by reunification and the finalization of ‘nation-building’ in Germany, is analyzed as an era of political absence and pragmatic outsourcing of the moderation of the problems arising from migration and integration to the municipalities, the second phase which found its tentative finalization after the passing of the immigration act of 2005 can be described as a period of federal chaos and reorientation of the different federal actors in both political areas. Finally mutually independent political reforms such as the immigration law, the reform of federalist relations and the reorganization of the welfare state constitute a new frame for federalist relations in the political areas under analysis.

Introduction

Although comparative literature on migration and integration in Germany has been mounting for many years (see Bommes 2006) the influence of the institutional structure of nation-states and the impact of sub-national units on the course of migration and integration remains rather underexposed also in the German scientific literature (Henkes 2008: 114). A reason for this disregard of sub-national and federal units might be a strong orientation of huge parts of migration research on the public national debates which first and foremost understand integration as dealing with and treatment of the consequences of the crossing of national borders (Thränhardt 2001: 27-28). Given the significance and concrete political scope of action of sub-national units for a number of political areas relevant for the integration of immigrants, the impact of the structure of a polity on integration policies and outcomes displays an important desideratum for migration research. Before we give an outline of the specificities of German federalism and its impact on migration and integration policies we start with some general theoretical considerations concerning the question why we find Federalist states next to Unitarian states. What are the kinds of prob-

2 lems that the emergence of Federalism reacts to and what are the kinds of problems dealt with by the political form of organization called Federalism? Seen from the point of view of political scientists and lawyers “Federalism defies final and scientifically conclusive definitions” (cf. Schubert 1994: 42 and very similar Bothe 1994: 19-31). Efforts to define Federalism from a constitutional perspective refer to specific organizational features of the political system and mark them as criteria for the identification of federalist structures.1 This however leads only to “more or less”-definitions and the delineations between Federal and Unitarian states or decentralized states are not at all distinct. Even in Unitarian states like France or Great Britain we find decentralized structures of political decision-making and administration and most Euro- pean countries allow for elections of decentralized political decision making bodies (see Erichsen/Hoppe/Leidinger 1988; Deubert/Liegmann 1989; Wehling 1994). Federal states are obviously the historical outcome of state building processes. The enforcement of the national territorial state and its central competencies of internal and external regulation and intervention have been combined to a varying degree with the concession of parts of decision making competencies to lower political levels. The exact structural design and the change of relations between central states and their political subunits, i.e. member states, ar- ticulate the historical problems of state building in each country (Evers 1994: 49 ff.; Schultze 1983: 94). More recently concepts of Federalism are discussed in the context of efforts to decentralise political decision making. It is argued that Federalism as a political form of organ- isation may have the potential e.g.: to solve some of the structural problems of modern inter- ventionist welfare states; to mitigate ethnic cleavages in fragile states; to compensate as a counterweight the growing centralisation of decision competencies in the EU (Evers 1994; Scharpf 1994: 159-166). More recent efforts to decentralise political decision-making and administrations have emerged after a period of planning and centralisation euphoria during the post-war period, the high peak of the institutionalisation of the welfare state. These efforts react to problems of tailoring political decisions to regional and local divergences and unbalanced development. Federal concepts subdivide political decision competencies and reassign them to central, regional and local instances, and this accounts for their attractiveness. They promise to allow for the matching of the size of decision-making and its subjects as well as for the manufactur- ing of consent. The institutionalisation of federalist structures of political decision making is linked however in the course of history and especially after the emergence of the modern welfare state with a number of follow up problems. The varying organisational designs of federal- isms create their own contingencies and dynamics of policy making. In this chapter we use the example of Germany to show that federal structures of decision making not only have a specific impact on policy-making in the field of migration and integration but also that the dynamics of a policy field may cause changes in the relation between the different sub-units of political decision-making.

1 "(1) The departmentalization of the state in territorial units; (2) the separation of executive and legislative powers and member states, which possess a considerable amount of autonomy; (3) the representation of member states in a federal parliament and their participation in the forming of the political will of the central state; (4) modes of conflict regulation that are built on principles of negotiation and require frequently qualified decision making processes with regard to the protection of minorities.; (5) constitutional courts as arbiter in case of conflict between the different institutional levels." See Schultze (1983: 94-95). 3 From Cooperative Federalism to Joint Decision Trap? Structures of Federalism in Germany

One basic feature in German federalist theory is the analytical differentiation between cooperative federalism (Verbundföderalismus) and interstate/competitive federalism (Trennföderal- ismus) (Majeed 2006; Börzel/Risse 2000). Whereas interstate federalism rests on a sectional division of policy competencies where each level has both executive and legislative powers for their policy areas, in cooperative federalist countries all levels of government interact and cooperate in a prescribed and institutionalised manner. Both modes of federalism have their well-documented costs and benefits. Whereas a cooperative design of federalist state structures promises a reduction of conflicts and the facilitation of coordination, supporters of interstate federalism claim increasing efficiency of public policy and a greater responsiveness to- wards the preferences of the local population - if necessary also accepting an increasing in- equality of the living conditions of the population (Margedant 2003: 8; Watts 2006: 343). Against the background of the devastating consequences of the Second World War a quick adoption of a more cooperative mode of federalism in Germany was inevitable.2 In this line of arguing Scharpf (1999) underlines that ‘except Bavaria and Hamburg none of the new federal states disposed of a distinctive historical identity‘ and that ‘the war-torn German people have had no appreciation for the cultivation of specific regional particularities and thus no tolerance for differences […] which would hamper the mobility of families or companies. Even more, the burden caused by destruction and mass migration did not affect all federal states to the same degree, so that every emphasis of federal egoisms would have had been condemned as refusal of national solidarity.’ The German embodiment of a cooperative mode of federalism resulted in a specific division of labor between the different state units which allocates the competence for law-making to the federal level and the administration and implementation of the laws in their own responsibility (“in eigener Zuständigkeit”) to the Länder level. The Länder thus have a double role, they do not only implement their own statutes but also put federal law into administrative action (Schneider 2006: 124). Only very few competencies in the German system are federally administered which include mainly defence, foreign service and border police (Art. 87). This model is also referred to as administrative federalism because the principal competencies of the sub-national units are of administrative nature (Anderson 2008: 22). This again is reflected in the fact that a majority of the civil servants are employed by a Land government. The role of a third actor in the German federal system next to the national level and the Länder de- volves upon the municipalities. From the perspective of constitutional law the municipalities and local governments act under the jurisdiction of the Länder. These operate through local government in the system of delegated administration and despite the constitutional principle of local self-government the cities and counties are bound by instruction with all delegated affairs. The German constitution only differentiates between the national and the Länder levels. Nevertheless the municipalities and local governments must be regarded as important political actors which make collectively binding decisions and dispose of a significant scope of political action.

2 Other frequently used labels of the German mode of federalism are “participatory federalism”, “executive federalism” or “unitary federalism”. 4 The preservation of a federalist state structure generally requires a chamber of representation of the sub-national units to accommodate the concerns of the regions. Swenden (2004: 25) points to the fact that ‘there is no significant federal democracy without a second chamber’. The second chamber in the German federal system, the Bundesrat, occupies a very distinctive federal role (Anderson 2008: 46). The members of the German second chamber are not elected, but delegated by the Länder governments. The central role of the Bundesrat is its role as a kind of approval instance of all national legislations that affect the Länder. The central governments thus require a weighted majority of the Länder governments to pass such acts. Since the share of acts that needed approval in the second chamber have had been increasing to about 60% instead of the 10% originally intended (Ipsen 2006: 2802) the Bundesrat not only possessed an increasingly strong position for the legislative procedure in Germany, but also was able to effectively block national legislation (Wilms 2003; Gunlicks 2005: 1285).3 This can result in a situation of political gridlock when the members of the majority in the Bun- desrat belong to political parties which belong to the opposition in the national parliament, the Bundestag. Both political camps in newly formed federal coalition governments, indeed, usu- ally lost votes in subsequent regional elections, because voters use these elections as protest against the federal government. The parties that have formed the federal government either have not retained, or, more likely, soon lost their majority in the Bundesrat to the opposition parties. Scharpf (1985) coined the term “joint-decision trap” (Politikverflechtungsfalle) to describe the German situation in which government decisions on the central level must be taken at the lowest common denominator because other governments may otherwise veto them. This being said it is not surprising that voices which argue that ‘this system has to be proven not only crippling, but also problematic from a democratic point of view because everybody can be made responsible for everything and therefore nobody is responsible for anything’ (Kramer 2005) increasingly drew the attention of the politicians in the last years. The complicated and mutually entangled structure of German federalism results in multi-lay- ered relations between the different federal levels. Following Thränhardt (2001: 31) we differentiate between autonomous action of the Länder (mode 1), the usage of scope of interpreta- tion by sub-national units (mode 2), which in Germany is a traditionally relevant mode because administration and implementation is the main task of the Länder and municipalities and the involvement on the national level in bicameral political systems in cases when national legislation needs approval by the sub-national units (mode 3). For the subsequent analysis of integration and migration policy in Germany from the perspective of federalism we must differentiate not only between three different and relevant political agents and actors but also take into account the different ways the federal actors can make use of their respective political power. Organized Idleness and the Consequences of Non-Decision-Making in the Realm of Migra- tion and Integration Policy: The Municipalities as Main ‘Integrators’

In the mid-1950ies Germany accepted various offers from Italy and other Mediterranean countries and actively began to recruit foreign workers (Herbert 2001). Initially started as a temporary labor recruitment program these practices ended up since the mid-1970ies into pro-

3 The Bundesrat also has the possibility to object to the remaining 40%, but this is a suspensive veto that a majority of the Bundestag can override. 5 cesses of immigration and settlement. This development was even fostered by the counter-in- tuitive consequences of the recruitment ban in 1973 which lengthened the duration of stay, ac- celerated family reunification and initiated a subsequent accumulation of social rights. The backside of this development were contradictory political reactions which possessed as common denominator the official German self-description of “being not a country of immigration”. The only visible political initiative at the national political level was a law to boost the willingness to return of the immigrants to their countries of origin which however - apart from windfall gains for those immigrants with a general intention to return – proved to be ineffective. This vast inactivity of the national and sub-national level in terms of an explicit migration and integration policy in this period was accompanied by a pragmatic-administrative enforcement of locally context-bound integration efforts from the side of the municipalities which mainly took place away from the public eye. Bade/Bommes (2000) argue that the self-description of Germany as a country of non-immigration even provided an effective and helpful political frame for the municipalities, welfare organizations and local political administrations to pursue a pragmatic and problem-oriented approach of integration policy beyond public attention. During this period locally specific and diverging paths of a local and municipal integration policy – despite or even because of the absence of political actors of the national and/or Länder level – could be set in different realms (Bommes 2005): in the provision of accommodation and housing, in the context of the establishment and enlargement of structures of local social counselling services organized mainly by welfare organizations (Puskep- peleit/Thränhardt 1990), in the appointment of foreigner political advisory boards (Ausländer- beiräte), by specific support of locally active migrant self-organizations, by initiating the opening of nursery schools and the establishment of support programs for immigrant children, by starting integration programs for second generation immigrants in cooperation with the local branches of the federal office of labour etc. The institutional precondition for this approach was the inclusion of the labor migrants right from the beginning of their employment into the general social security system of the German welfare state encompassing especially unemployment insurance, health protection, family al- lowances and retirement and into the industrial relations especially concerning the regulations governing industrial relations (Betriebsverfassung). It is worth noting that this inclusion was part of the general labor market policy of the German welfare state and not intended as explicit integration policy – even if it proved to be the most relevant decision concerning the integration history of the labor migrants of the 1960 and 1970s and their families, i.e. the ‘guest workers’. It is an appropriate way to describe the way Germany dealt with migration and integration at that time by saying that this political problem was kept latent by means of oscillating between public announcements that Germany is a non-immigration country and the avoidance of decision-making. The political formula for this phase was ‘consolidation of the employment of foreigners’. This created tremendous insecurity on the municipal level concerning the general political frame and left the municipalities as “important actors in the daily production of social locality” (Bommes 2010) in the dark concerning the problems municipalities would face as a result of migration and settlement (Stang 1982; Herbert 2001). Given this long legal and political absence of the national as well as the sub-national actors in their respective political fields concerning any explicit and conceptually sustainable migration policy the relative suc- 6 cess of German integration policy, which is not only mentioned in the analysis of Bade/Bommes (2000) but also empirically confirmed by Koopmans (2010), for many political observers was highly irritating. Particularly in comparison to the Netherlands which started to pursue an active, broadly discussed and widely recommended integration policy already at the beginning of the 1980ies the integration outcomes of Germany appear to be rather positive. This first phase of the relationship between the different political federal actors in the fields of migration and integration thus might be summarized as a phase of a very special division of labor. Whereas the national and the Länder level politically remained largely silent and inactive, the municipalities - as the level which was directly and immediately affected by the day- to-day consequences of migration - initiated very diverging, pragmatic and locally contex- t-bound approaches to cope with integration in the different realms of life. The silent ‘integration machine’ however was mainly driven by the general working principles of the German welfare state which were not specifically designed to handle problems of migration and integration but which included the labour migrants as employees and provided them successively with social security like any other employee. The importance of this inclusionary mechanism of the general welfare state can hardly be overestimated and its impact was probably much higher than any integration program specifically designed for migrants.

The End of Nation-Building and the Emergence of Federal Chaos: Migration and Integration Policy after German Reunification

The fact that the description of Germany as a non-immigration country for a long time has been at odds with statistical reality of massive influxes of immigrants since the foundation of the Federal Republic of Germany in 1949 belongs to the standard findings of much of the relevant literature. Indeed, basic statistics indicates that the Federal Republic of Germany was a country of immigration right from the start: The net migration balance between 1950 and 1993 comes up to 12,6 million which accounts for 80% of the population growth. The new microcensus of 2005 indicated that 15 million out of 82 million inhabitants have a migratory background, that means are either born abroad or are descendants of parents of whom at least one is not born in Germany. In Germany more fifteen year old youngsters come from families with a migratory background than in the USA. In the group of the kids under six every third has a migratory background. The percentage of foreigners grew from 1.2 per cent in 1961 to 8.9 per cent in 1996 and has since then remained stable. Since the mid-1990ies immigration to Germany basically started to stagnate or – in some years – even to decrease (Tab. 1). In the same period the country witnessed increasing numbers of emigration which became a publicly recognized issue not before 2009 when for the first time since the end of the 1990ies Germany saw a negative net immigration balance which stirred an ongoing debate about the attractiveness of the country for highly skilled Germans and foreigners (SVR 2009). Against the background of the current immigration debate, which mainly was triggered by a controversial book of a former SPD secretary of finances in Berlin and member of the board of the central bank4, it is not without irony that in times of high net

4 The book titled ‚Deutschland schafft sich ab‘ (‚Germany abolishes itself‘) is a rather crude accusation that migrants overpopulate Germany, cost too much money, produce too many children, water down the average in- telligence of people in Germany and do not like to integrate. 7 immigration the political actors to a large extent subscribed to the mantra of not being a country of immigration whereas in a period of increasing emigration and moderate immigration, which is not even able to compensate for the emigration losses, the political debate - at least from certain sides of the political spectrum - focuses on the problems of too much immigration.

Tab. 1: Immigration to and Emigration from Germany

This rather compact picture of the migration balance, however, blurs major changes in the composition of the immigrant population in Germany. As far as the countries of origin are concerned the immigrant population underwent a major and ongoing process of diversification. From the late 1950ies until the early 1980ies few but large groups of immigrants - mainly from the former countries of labour recruitment and from the countries of origin of the ethnic Germans - played a dominating role. In 1970 immigrants from Italy, the former Yu- goslavia and Turkey almost accounted for 60 percent of the foreign population in Germany. In 2008 only the group of Turkish citizens constitutes a large immigrant group; almost 25% of all foreigners residing in Germany have a Turkish passport. The remaining three-fourths are composed of a huge variety of many small groups. This ongoing ‘diversification of diversity’ (Vertovec 2008) is also a reality with regards to recent flows of immigrants to Germany. In 2008 Polish citizens (ca. 120.000) were the only large group of immigrants, persons from Ro- mania (ca. 48.000), Hungary, Bulgaria and Turkey (about 25.000 each) are trailing far behind. The main source countries of immigration to Germany belong to the European Union which indicates that the political scope of action for admission policy and migration control is se- verely limited. Data from the German foreigner register allow for a further differentiation according to the purpose of stay in Germany. In the light of the recruitment ban, which is still in force since 1973 despite a growing number of exemptions, and the reform and cut-back of the formerly generous asylum system, which was adopted to European standards in a highly disputed reform at the beginning of the 1990ies, the dominance of the family migration and reunification,

8 which itself is protected by the basic law and the European convention of human rights, is un- surprising (Tab. 2).

Tab. 2: Immigration of Immigrants Outside of the EU according to Purpose of Stay 16% 24% Study 6% Education Work Humanitarian Reasons 9% 16% Family Toleration 4% Other 25%

Given the numbers of immigration to Germany the political debate constantly only seems to be very loosely coupled to the empirical reality. More interesting and intriguing for the purpose of this article than a mere accusation of the denial of a statistical reality (such as in Bade 2007) is the analysis of the roots of this dichotomy between empirical reality and political self-declaration. A very convincing analysis is presented in Joppke (1999) who argues that the critics of the mentioned dichotomy between statistical reality and political self-definition overlooked the normative dimension of this denial and its grounding in the national self-definition of Germany. From this point of view the “no-immigration formula is over-determined by history and culture” (Joppke 1999: 62). The roots of this at a first glance odd self-definition of a no-immigration country thus can be found in the former ethno-cultural mode of Ger- man nationhood. Even if the ethno-cultural concept of citizenship to be found in the basic law of 1949 goes back to 1913 the fact of its adoption itself was a consequence of the Second World War. One of the side effects of the liberation of Germany from the Nazi regime was the division of Germany, the displacement of the former eastern borders of Germany to the West and thus the emergence and existence of huge German Diasporas. The corollary of this development was the perception of the federal republic of Germany as an incomplete nation-state.5 The former preamble of the basic law gets to the point and underlines the provisional self-understanding of Germany by stating: “The entire German people remains asked to complete the unity and freedom of Germany in free self-determination”. It is one of the bizarre outcomes of history that Germany in this respect resembled Israel – a country that only exists because of the genocide committed by the National Socialist Regime against the Jews. In a similar way as Israel still understands itself as the homeland of all Jews, Germany formerly perceived itself as homeland of all Germans including those living in the German Diasporas (Joppke 1999: 63). As a consequence of this self-definition, Germany prioritized the immigration of co-ethnics which was semantically disguised as return. The legal background can be found in article 116 of the Basic law which grants automatic citizenship to eth-

5 This incompleteness was reflected in various institutional realms. For example Germany did not have a constitution, but a basic law which underlines that it was only supposed to be in force until Germany becomes reunited and thus complete. A second example is the former German capital Bonn which – next to various other reasons – could be understood as another signal to indicate the provisional character of the Federal Republic. 9 nic Germans fleeing from eastern European communism. A quick and direct acceptance of Germany as being generally a country of immigration allowing for settlement and naturalization thus would have lead to the risk of being obliged to redefine the national identity of Ger- many and to weaken the historical obligation to its dispersed co-ethnics in the East (Joppke 1999: 65). One of the most influential voices in the field of migration law, Kay Hailbronner (1983: 2113), gets to the heart of this situation by stating that “conceiving of the Federal Re- public as an immigration country with multiple national minorities would contradict the Basic Law's conception of a provisional state geared toward the recovery of national unity". The collapse of the socialist state system, the subsequent reunification and the finalization of nation-building in the ‘incomplete nation-state’ Germany6 fundamentally changed the political and legal frame of migration and integration policy and thus the relations of the different federal actors in Germany, but also the empirical migration reality. At the same time when Germany witnessed an increased influx of ethnic Germans, asylum seekers and war refugees the complete nation-state Germany consequentially has been starting to ease its attitude to- wards the no-immigration formula, to adopt to migration and integration policies of its Euro- pean neighbors and to pursue a more coordinated migration and integration policy, because after reunification and the reasons for pursuing a two-side approach to a) remain inactive and passive with regards to guest workers and b) actively include ethnic Germans (Joppke 1999: 261) disappeared. The Federal Republic of Germany thus had the possibility to start a process of political and legal normalization (Bommes 2001). The major steps of this process constitute the aliens act, the so-called asylum compromise, which actually should have been referred to as ‘migration compromise’ since all major immigrant groups (guest workers, ethnic Germans, asylum seekers) were affected (Bade 1994: 122) and the new citizenship law. These changes however did not come across without turbulences articulated as major conflicts between the different federal levels. The coincidence of a fundamental change of migration flows and the initiation of a comprehensive reform of the political and legal framework of migration and integration policy resulted in the emergence of federal conflicts which mainly centered on the quantitatively most important immigrant groups at that time, the ethnic Ger- mans and the asylum seekers. The former after the emergence of the possibility of exit after the fall of ‘iron curtain’ in large numbers made use of their option to come to Germany. A very insightful federal conflict was ignited upon the federal cost center. Until the beginning of the 1990ies the main financial responsibility was incumbent upon the Federal Office of Labour, a lower authority of the Federal Ministry of Labour and Social Affairs. After having witnessed an increasing number of immigrating ethnic Germans as a direct consequence of the abolition of the prohibition of exit from Eastern Europe the federal level dislocated the responsibility for this group to the municipal level and in doing so realized enormous costs sav- ings for the federal level. In a number of municipalities and counties which have had becom- ing the core areas of immigration of ethnic Germans this dislocation of financial and administrative responsibility lead to a sudden increase in the demands of municipal budgets (Bommes 2010) and a subsequent political campaign of some of the most affected regions to relocate the political and financial responsibility back to the federal level. This dispute between the

6 In 1990 the German state building process ended since after reunification for the first time the identity of territory and population became realised: Germany does neither claim any external territory nor the belonging of a population to the German nation living outside the territory of the state. 10 federal and the municipal level indicates very glaringly how the sudden influx of ethnic Ger- mans challenged the historically established division of labor between the national and the municipal level and called for a fundamental reorganization of the federal relations in the field of migration and integration policy. A similar kind of federal battle about the financial and administrative responsibility for a certain group of immigrants took place in the context of the immigration of asylum seekers and civil war refugees which also gained momentum at the beginning of the 1990ies. Because the federal and the Länder level proved to be unable or unwilling to agree on a common legal basis for the reception of civil war refugees, most of the refugees who fled from war and persecution in the former Yugoslavia and who were provided refuge by the families of the former ‘guest workers’ fell in the responsibility of the municipalities. These reacted and systematically urged the refugees in order to relieve their budgets - despite legal hopelessness - to apply for asylum because this again would relocate the costs for this group to the Länder level. Both cases indicate a ‚federal chaos‘ in terms of migration and integration policy which successively was reduced by the introduction of a more coordinated migration and integration policy after German reunification and whose political and legal milestones constitute the reform of aliens act in 1991, the migration compromise of 1992 including the reform of the asylum system and the new citizenship of 2000. The described normalization process successively reduced situations that were referred to above as ‘federal chaos’ and integrated the political areas of migration and integration policy into the traditional and historically proven division of labor between the national and sub-national units.

New Roles for the Federal Integration Actors: The Impact of the Reform of Federalism, the Discovery of Integration as a Political Field and the Reform of the Welfare State

As has been described above, the German style of a type of cooperative federalism leads to a specific division of labour between different federal units in a way that the Länder are mandated to implement the laws that has been passed by the national level. This has been referred to as mode 2 of federalist relation between different federal levels. The usage of scopes of implementation and administration in a politically distinctive way belongs to the core and historically established options of the Länder for political action. For the political areas of migration and integration the aspect of naturalization appears to be a kind of ideal example to illustrate the political scope given to the Länder by these division of labour (Tab. 3).

Tab. 3: Naturalization Rates in the West-German Länder 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Baden-W. 0,82 1,1 1 1,36 1,97 2,26 2,17 1,76 1,51 1,25 1,17 1,12 1,02 0,89 Bavaria 0,6 0,72 0,81 0,96 1,35 1,82 1,71 1,46 1,24 1,13 1,03 1,14 1,11 0,85 Berlin 1,81 1,6 1,44 1,57 2,19 1,55 1,42 1,51 1,48 1,43 1,52 1,73 1,62 1,42 Bremen 0,88 0,91 0,96 1,57 2,3 2,64 2,32 2,34 1,97 2,35 2,44 2,32 2,00 1,86 Hamburg 1,39 1,89 1,34 2,02 2,13 3,3 3,77 3,03 2,67 1,98 1,75 1,86 1,59 1,12 Hesse 1,07 1,37 1,45 1,71 2,3 2,83 2,68 2,47 2,46 2,16 1,98 1,95 2,05 1,96

11 Lower Sax. 1,11 1,2 1,31 1,66 1,97 2,93 2,76 2,39 2,16 2,05 2,04 2,16 1,75 1,45 NRW 1,08 1,29 1,23 1,74 2,32 3,29 3,05 2,52 2,26 2,06 1,82 1,92 1,71 1,37 RLP 0,83 1,06 0,95 1,21 1,64 2,43 2,50 2,39 2,21 2,11 1,76 2,22 2,14 1,63 Saarland 0,62 0,66 0,65 1,12 1,13 2,1 1,39 1,43 1,63 1,39 1,38 1,77 1,47 1,46 Schlesw.-H 1,04 1,09 1,1 1,63 2,46 3,72 3,34 3,34 2,82 3,08 2,73 2,85 2,63 2,11 Source: Statistical Office

Although a legal entitlement for naturalization has been established in 1991 and already in 2000 general administrative instructions were issued in order to equalize the differences between the 16 federal states the Länder as administrative units still dispose of several leverages to either support naturalization or to reduce the rates. For example, the Länder can influence the organization of the aliens departments in one way or another in order to accelerate or decelerate the naturalization processes. They further can interpret the question whether the language proficiency is sufficient for naturalization generously or restrictively and they have the power to decide whether an applicant is ready for the shortened naturalization period of 6 years (Henkes 2008). Huge media coverage drew another way of the Länder of directly influencing the naturalization rates. The Land Baden-Württemberg still uses an interview guideline in order to find out whether the applicant’s “declaration of loyalty” to the Constitution, which is mandatory in the German naturalization procedure since 2000, also corresponds to the applicant’s actual beliefs or “inner disposition”. This interview guideline is only used for applicants from Islamic states and of course can exert a major impact on the individual propensity to naturalize; it remains unclear, however, to what extent it can explain the low rates in Baden-Württemberg. Since the scope and impact of mode 2 on the political field of migration and integration and particularly on naturalization are well documented in the literature (see among others Thränhardt 2001, Henkes 2008, Hagedorn 2001, Dornis 2001) this section does not aim at repeating the different fields and situations where administrative action of the Länder can lead to different political procedures. Instead three very recent political and legal developments which might fundamentally change the role of federalist relations in Germany and at the same time allocate new roles to the three federalist actors in the fields of migration and integration will be looked at. The first reform in this context to be dealt with is a major form of federalism itself. General dissatisfaction with the efficiency and effectiveness in meeting the political and economic challenges that the Federal Republic of Germany was and still is exposed to, the impression of an excessive and increasing complexity of the political system and the lack of accountability and transparency with the result that the federal system is contributing more than its share to the growing disillusionment and dissatisfaction with the political system (Schmidt-Jortzig 2005: 7) triggered both major political parties to establish a ‘commission of Bundestag and Bundesrat on the modernization of the federal system.’7 After a first attempt failed and the creation of a great coalition after the snap elections in 2005 the idea of a major reform of federalism suddenly revived and passed both chambers in mid-summer 2006 and

7 The commission had 32 voting members, 16 each from the Bundestag and Bundesrat. These members were the prime ministers of the Länder. Nonvoting members included two Land parliament presidents, four party group leaders from Land parliaments, and three representatives of local government associations. There were also twelve professors who are experts on federalism. Altogether there were 102 persons involved. 12 went into effect on 1 September 2006. The main changes brought by the reform can be summarized as a deal between both federal levels: The Länder accept a reduction of the number of legislations requiring Bundesrat consent (mode 3) and as a compensation for this significant loss of power they receive additional competencies in a number of political fields (mode 1). This includes the exclusive legislative power for fields such as the salary law for their civil servants, prison law, shop closing law, right of assembly law and media law and right of deviant legislation which enables them to legislate own regulations in these fields even if these deviate from the federal regulations in fields such as environmental and education law. This possibility of opting-out is an absolute novelty in the German federalist system. The reform of federalism thus resulted in a significant change of intergovernmental relations and a rearrangement of the three basic regulatory modes in the relation between nation and regions in Germany. As a preliminary result we can state that the reform of federalism described above significantly strengthened mode 1 at the cost of mode 3 which has a certain impact also on the different scopes of action for the different federal actors in the field of integration. Although the so-called cultural autonomy which also encompasses the education system has been a traditional feature of German federalism, the sole responsibility for aspects of education has been further strengthened by the reform of federalism as it took place in Germany. The impact for the political field of integration thus is that the field of education policy, which can be generally regarded as the key area for political intervention in integration processes, belongs to the exclusive competencies of the Länder. Without tackling the question what kind of school system – a more integrated system or the classic differentiated systems run in the Southern states – renders the biggest returns for immigrant children8 it is obvious that the ‘education policy leverage’ of the Länder is a powerful tool for integration policy. A more detailed look at the specificities of the design of the education system of the Länder would illustrate a huge variety and heterogeneity. It is not an exaggeration to state that Germany basically has 16 different school systems although the national level and the Länder try to agree on common guidelines by running institutionalised Länder-Länder coordination bodies in many policy fields, particularly in cultural affairs, in the Kultusministerkonferenz (cultural ministers’ conference). The fact that education policy is not only one of the core but also one of the last fields of competence which allows politicians at the Länder level shaping a distinctive political profile triggered a number of Länder governments to initiate processes of reforms of the school structure. The government of Hamburg just recently failed to implement a so-called primary school, lasting 6 years instead of 4 after a binding referendum overruled the reform; the newly elected federal government of North Rhine-Westphalia, the biggest Land, very recently launched a plan to transform at least 30% of all secondary schools into community schools until 2015. The material effects of these reforms are doubtful, the recurring successful performance of Länder such as Bavaria and Baden-Württemberg in various international comparative studies such as PISA rather points to the fact that the political conservatism of these Länder reduces irritations, which are an unavoidable side effect of all reforms, for schools, generates a higher degree of security for the respective organisations of the education system and thus indirectly to a stable and well- functioning school system.

8 This is far away from being clear and the PISA and other data could not find a consistent answer that a system of type A generally helps immigrant children to catch up quicker in the education system than type B. 13 The significance of the power of decision-making in the realm of educational policy furthermore becomes apparent by a brief look at the recent numbers of immigration to Germany. Although Germany publicly is still thought to be a major immigration country in the OECD-world statistics reveal that Germany instead of being an important country of immigration finds oneself right at the statistical median between an immigration and emigration country (see. Tab. 1 above). This means that the most powerful leverage for designing and influencing the outcomes of migration and integration is not the competence over admission policy, which belongs to the core rights of the national level9, but rather the legal prerogative for education policy. Although educational policy by no means constitutes a political area which exclusively targets aspects of immigrant integration there is no doubt that this political leverage makes the Länder to the most influential federalist actor in the field of integration policy. Henkes (2008) in this respect convincingly points to the fact that the legislative prerogative in the field of education policy is not the only area where the Länder actively have the possibility to exert political influence. Against the background of an increasing ethnic and religious diversity and the establishment of Islam as a third mass religion in Germany the question of how to moderate and reconcile religious privileges with the religiously neutral institutions of the state in the realm of education policy is another increasingly important area allocated to the Länder. The question whether Muslim teachers will be allowed to wear headscarves while teaching is one of the most controversial topics and far away from being administered in a consistent and uniform way in the different Länder. It can be again remaining open what kind of solution should be politically preferred, important is the political scope of action that the Länder as federal actors can make use of.

9 Foreign relations are one area where the federal level has not only the legal but also all administrative competences. This means that visas and immigration are controlled on a federal level. 14 Tab. 4: Länder and the Regulation of Headscarves in Schools Allowed Prohibited Baden-W. X Bavaria X Berlin X Bremen X Hamburg X Hesse X Lower Saxony X Northrhine-Westphalia X Rhinleland-Palatinate X Saarland X Schleswig-Holstein X Mecklenburg-Vorpommern X Brandenburg X Saxony-Anhalt X Saxony X Thuringia X

Whereas the Länder must be regarded as clear winners of the reform of federalism – at least as far as integration policy is concerned – the national level did not remain politically inactive and quite the contrary unfolded an impressive and unexpected political activity which found its most visible and symbolically influential occurrences in the national integration plan, the creation of a state ministry for integration and the initiation of the German Islam conference. In material terms more relevant than these mainly symbolic initiatives however was the implementation of a new system of mandatory language and orientation courses, introduced with the immigration law of 2005. Deviating from the usual division of labor between the federal and the sub-national level, which allocates the administration and execution of nationally decided laws to the Länder, the federal level has full control of the integration courses. For this unusual deviation from the established division of labour and the allocation of a sole responsibility to the national level two main causes can be identified. 1) It was the political priority of the center-left “red-green” government of 2005 for a sweeping reform and a new immigration law. At the time of the debate the conservative parties, however, dominated the Länder which made an involvement of the Länder and a compromise difficult. 2) Probably the main reason for this sole responsibility of the national level was the unwillingness of the Länder to contribute to the funding of the programme. Consequentially the central authority for the courses is the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge), a lower authority of the Federal Ministry of Interior, with regional sub-offices, which controls the whole process of integration courses and develops the curriculum of the Integration courses and evaluates the course system. The language and orientation courses guarantee a 600 and sometimes 900 hour language course and 30 hours for the integration course for each newcomer. Immigrants who are in the country for a longer period can participate if there are free places. Since 2005 727.893 entitlements for participation have been issued, about one quarter was obliged to participate. The question about the number of persons who denied participating despite being obliged to is one of the highly debated political questions. Data from the Federal Office indicate that more than 75%

15 of the obliged participants at least started the course; still unclear is the number of dropouts. In case of non-cooperation sanctions such as a moderate reduction of social aid or a non- renewal of temporary residence permits might be imposed by the respective authorities. In general the impact of these should not be overestimated due to a huge number of exemptions. The integration and orientation courses point to a new and important role for the national level. Whereas the national level in the context of the reform of federalism agreed upon giving away nearly all ways of influencing educational policy as one of the key areas for integration the immigration act of 2005 created new political scope of action for this federal actor. Although the importance of the courses should not be exaggerated given stagnating or even decreasing numbers of immigrants to Germany and the numerous exemptions from being obliged to participate, the courses nevertheless must be seen as an important and rather recent leverage which falls under direct responsibility of the federal level. Finally, the municipalities at least in the public opinion have been referred to as increasingly important key actors or moderators of integration in the last few years. A widespread formula which more or less is part of every keynote of conferences on integration in Germany is that the “social integration takes place on the ground, on the local level.” This finding however is not very insightful, since everything that happens always happens on some local level. Relevant in the contest of integration however is the role of cities and municipalities as decision-making levels in the handling of locally, nationally or globally determined conditions of integration. The side effects of the immigration law and the highly disputed reforms of the welfare state, which became known in Germany as the Hartz-reforms according to the chairman of the commission, which developed these reforms, changed the role of the municipalities as actors in the field of integration. The definition of social integration as it is phrased in the immigration law of 2005 displays a striking similarity to the new relation of welfare receivers and the welfare state. ‘Active supporting and demanding’ (‘Fördern und Fordern’) became the new master frame not only for the reform of the welfare state, but also for the redefinition of integration policy. The new role of and scope for the municipalities appears structurally in the incorporation of the integration programs into the services of the Federal Office of Labour or the so called ARGEn10. The reforms of the immigration law and the major reforms of the welfare state a few years earlier provided the municipalities with two new and main options and possibilities of local integration policy: 1) They can exert a major influence in the context of the appointment and selection of the local providers of the integrations courses and on the question what kind of migrants locally should belong to the target group of the courses. 2) In the context of the ARGEn the municipalities now enjoy new and greater competences of a specific and locally context-bound design of labour market placement services. This is not a migrant-specific scope of action, but it implies an allocation of responsibility for migrant groups with poor chances of successful labour market integration to the local and municipal level. References

Anderson, G. (2008): Federalism: An Introduction. Oxford: Oxford University Press. Bade, K. J. (1994): Ausländer, Aussiedler, Asyl. München: C.H. Beck

10 ARGE stands for Arbeitsgemeinschaft (‚working group‘) and is the organizational frame of the cooperation between the local federal offices for labour and the municipalities. 16 Bade, K.J./Bommes, M. (2000): Politische Kultur im "Nicht-Einwanderungsland": Appellative Verweigerung und pragmatische Integration, in: K. J. Bade/R. Münz (Eds.): Migrationsreport 2000: Fakten - Analysen – Perspektiven. Frankfurt a.M./New York: Campus. Bade, K.J.: (2007): Versäumte Integrationschancen und nachholende Integrationspolitik, in: K. J. Bade/H.-G. Hiesserich (Eds.): Nachholende Integrationspolitik und Gestaltungsperspektiven der Integrationspraxis. V&R unipress: Göttingen. Bommes, M. (2001): Bundesrepublik Deutschland: Die Normalisierung der Migrationserfahrung. In: K. J. Bade (Ed.): Einwanderungskontinent Europa: Migration und Integration am Beginn des 21. Jahrhunderts. Osnabrück: Rasch, p. 49-60 Bommes, M. (2006): Migration and Migration Research in Germany, in: Ellie Vasta/ Vasood- even Vuddamalay (Eds.): International Migration and the Social Sciences. Con- fronting National Experiences in Australia, France and Germany. Basingstoke: Pal- grave, p. 143-221. Börzel, T./Risse, T. (2000): When Europe Hits Home. Europeanization and Domestic Change, European Integration online Papers (EIoP) 4 (15), Bothe, M.: Föderalismus - ein Konzept im geschichtlichen Wandel, in: T. Evers (ed.): Chancen des Föderalismus. Baden-Baden: Nomos, p. 19-31. Deubert, M./Liegmann, G. (1989): Rechtsgrundlagen kommunaler Selbstverwaltung und regionale Strukturen in Europa, Köln: Deutscher Gemeindeverlag Dornis, C. (2001): Einbürgerung in Deutschland (2001): Die Verwaltungspraxis der verschiedenen Regionen im Vergleich, in: D. Thränhardt (ed.): Integrationspolitik in föderalistischen Systemen. Münster: LIT. Erichsen, H.-U./Hoppe, W./Leidinger, A (Hg.) (1988):, Kommunalverfassungen in Europa, Köln: Deutscher Gemeindeverlag Gunlicks, A. (2003): The Länder and German federalism. Manchester: Manchester University Press Hagedorn, H. (2001): Föderalismus und die deutsche Staatsangehörigkeit: die Einbürgerungspolitik der Bundesländer. In: D. Thränhardt (ed.): Integrationspolitik in föderalistischen Systemen. Münster: LIT. Hailbronner, Kay (1983): Ausländerrecht und Verfassung, in: Neue Juristische Wochenschrift, p. S. 2105-2113 Henkes, C. (2008): Integrationspolitik in den Bundesländern?, in F. Wolf/A. Hildebrandt (Eds.): Politik in den Bundesländern im Vergleich, Wiesbaden: VS Verlag für Sozialwissenschaften, p. 113-136. Herbert, U. (2001): Geschichte der Ausländerpolitik in Deutschland. Saisonarbeiter, Zwangsarbeiter, Gastarbeiter, Flüchtlinge. München: Beck Ipsen, J. (2006): Die Kompetenzverteilung zwischen Bund und Ländern nach der Föderalismusnovelle, in: Neue Juristische Wochenschrift, p. 2801-2806 Koopmans, R. (2010): Trade-Offs between Equality and Difference: Immigrant Integration, Multiculturalism and the Welfare State in Cross-National Perspective, in: Journal of Ethnic and Migration Studies 36(1), p. 1-26. Kramer J. (2005): The Federal Republic of Germany, in: R. Blindenbacher/A. Ostien (Eds.): Dialogues on Constitutional Origins, Structure and Change in Federal Countries. Mon- treal/Kingston: McGill-Queen´s University Press Majeed, A. (2006): Introduction: Distribution of powers and responsibilities in federal countries, in: A. Majeed/R. L. Watts/D. M. Brown (eds.): Distribution of powers and responsibilities in federal countries. Montreal/Kingston: McGill-Queen´s University Press.

17 Margedant, U. (2003): Die Föderalismusdiskussion in Deutschland, in: Aus Politik und Zeitgeschichte. Bd. 29-30/2003, p. 6-13. Oeter, S. (2006): Federal Republic of Germany, in: J. Kincaid/C. Saunders/K. Le Roy (Eds.): Legislative, executive, and judicial governance in federal countries. Montreal/Kingston: McGill-Queen´s University Press Puskeppeleit, J./Thränhardt, D.(1990): Vom betreuten Ausländer zum gleichberechtigten Bürger, Freiburg i.Br. Scharpf, F. W. (1985): Die »Politikverflechtungsfalle«: Europäische Integration und deutscher Föderalismus im Vergleich, in: Politische Vierteljahresschrift, Nr. 4, Jg. 26, p. 323-356. Scharpf, F. W.: Föderale Politikverflechtung: Was muß man ertragen - was kann man ändern?, MPIfG Working Paper Vol. 99 (3), April 1999. Scharpf, F. W.: Föderalismus im globalen Kapitalismus. Ein Nachwort, in: F.W. Scharpf (ed.), Optionen des Föderalismus in Deutschland und Europa, Frankfurt a.M. 1994, p. 156-166. Schmidt-Jortzig, E. (2095): Reformbedürftigkeit des deutschen Föderalismus, in: Aus Politik und Zeitgeschichte B. 13-14 Schneider, H.-P. (2006): Federal Republic of Germany, A. Majeed/R. L. Watts/D. M. Brown (eds.): Distribution of powers and responsibilities in federal countries. Montreal/Kingston: McGill-Queen´s University Press. Schubert, K. (1994): Föderalismus im Spannungsfeld von Politik und Wissenschaft, in: T. Evers (Ed.), Chancen des Föderalismus in Deutschland und Europa, Baden-Baden: Nomos, p. 33-44, Schultze, R.-O.: Föderalismus, in: M. G. Schmidt (Hg.), Pipers Wörterbuch zur Politik, vol. 2: Westliche Industriegesellschaften, München/Rürich: Piper, p. 93-106. Stang, H. (1982): Ausländerintegration in der kommunalen Praxis. Ein Leitfaden für Kommunalpolitiker und Verwaltungsbehörden. Köln: Deutscher Gemeindeverlag Swenden, W. (2004): Federalism and Second Chambers. Regional Representation in Parlia- mentary Federations: The Australian senate and the German Bundesrat Compared. Frankfurt: Lang Thränhardt, D. (2001): Zuwanderungs- und Integrationspolitik in föderalistischen Systemen, in: D. Thränhardt/L. Akgün (Eds.): Integrationspolitik in föderalistischen Systemen. Münster: LIT, p. 15-34. Vertovec, S. (2008): New Complexities and Challenges of Diversity. Lecture given at the In- ternational Symposium ‘Städte – Sprachen – Kulturen‘, Mannheim, 19th September Watts, R. (2006): Comparative Conclusions, A. Majeed/R. L. Watts/D. M. Brown (eds.): Dis- tribution of powers and responsibilities in federal countries. Montreal/Kingston: McGill-Queen´s University Press. Wehling, H.-G. (1994): Kommunalpolitik in Europa, Stuttgart: Kohlhammer. Wilms, H. (2003): Überlegungen zur Reform des Föderalismus in Deutschland, Zeitschrift für Rechtspolitik.