The Political Constraints on Constitutional Review

The Political Constraints on Constitutional Review Philipp A. Schroeder University College London (UCL) Research Degree, PhD: Political Science 2 To Edith Pflaum and Yesmean Luk, whatever comes out of this, without them I would have never made it this far. I am also thankful for support from my su- pervisors Christine Reh, Lucas Leemann and Tim Hicks, who had the right advice whenever this project was about to go off the rails. 3 I, Philipp Alexander Schroeder, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. Abstract Scholars of judicial politics have long recognised that courts reviewing the constitu- tionality of legislative and executive acts lack the power of the purse and sword and cannot coerce lawmakers into compliance with their jurisprudence. In this thesis, I offer a novel perspective on how courts solve the tension that comes with their re- liance on the executive and legislative branches for the efficacy of their judgements. The thesis is motivated by an empirical puzzle: Existing scholarship suggests that censure through a court is electorally costly for lawmakers, yet at times we can ob- serve lawmakers' pursuit of policies provoking confrontation with courts. I present a formal model demonstrating that lawmakers dismissing advice that their policies are at odds with constitutional jurisprudence and hence risking the political fallout from a court's veto signal a credible non-compliance threat. Upon observing such signals, courts face incentives to show self-restraint in their judgements and ease the constitutional limits to lawmakers' policy-making. I bring both quantitative and qualitative evidence from the German Federal Constitutional Court's (GFCC) review of federal law to bear on the theoretical model's claims. A statistical analysis of original data on the GFCC's review of federal law between 1983 and 2017 shows that the court is more likely to exercise self-restraint when lawmakers in government had previously dismissed constitutional concerns voiced by members of the governing coalition caucus. Complementing the statistical analysis, I evaluate the assumptions underlying the formal model drawing on evidence from interviews with justices at the GFCC, the German federal government and the Bundestag, while a case study on the GFCC's review of the 2008 Federal Criminal Police Office Act offers an analytic narrative of the model's main argument. The thesis shows that lawmakers' risk-taking in the shadow of courts' constitutional review provides an impetus for the evolution of constitutional jurisprudence. 4 Impact statement The academic impact of this doctoral thesis comes through (1) a scholarly article targeted at a top-ranked political science journal, introducing the thesis's main theoretical argument and evidence from its statistical analysis to a wider audience of scholars, and (2) an original dataset of federal laws reviewed by the German Fed- eral Constitutional Court (GFCC) for their constitutional compatibility over more than three decades (1983{2017) made available for replication analysis and future research. At the time of subsmission of the thesis, the scholarly article \Signaling political constraints on constitutional review" was under review at the American Political Science Review. The article presents the formal analysis of the theoretical model, which provides a novel insight into how courts lacking the power to en- force their rulings foster compliance with their jurisprudence and how the external constraints on courts' exercise of constitutional review reflect in the behaviour of lawmakers. The scholarly article and thesis offer evidence consistent with the theoretical model's expectations from the GFCC's exercise of constitutional review of federal law. In a recent contribution published in the German scholarly journal Poli- tische Vierteljahresschrift, leading German judicial politics scholars acknowledged that while the GFCC is often regarded as one of the most consequential constitutional courts in Europe, shaping the decision-making of lawmakers in the German legislature and federal government, scholars have provided little empirical evidence supporting these claims. The thesis's empirical analysis addresses this gap. The data collected for the empirical analysis will be made publicly available, facilitating replication studies and future research on the GFCC's review of federal law and lawmakers' choices in Germany's system of limited government. Beyond academia, questions surrounding the optimal design of systems of limited government have long occupied delegates of constitutional conventions and commit- tees tasked with reforming political institutions. Challenges facing members of these fora involve identifying institutional designs ensuring that public officials in the legislative and executive branches respect constitutional norms, while avoiding the delegation of policy-making to courts lacking direct accountability to the electorate. The theoretical analysis presented in this thesis allows officials to understand how variation in features of courts' institutional design (i.e. the presence/lack of cer- tain formal institutions ensuring courts' independence from the elected branches, or provisions allowing the elected branches to overrule courts' decisions) and varying scope conditions in political environments translate into courts' constitutional jurisprudence and the constraints they can place on lawmakers in the elected branches. Contents 1 Constrained constitutional review 11 1.1 Risking confrontation with courts . 12 1.2 The foundations of judicial authority . 18 1.3 Threats to judicial authority . 21 1.4 Approach of the thesis . 25 1.5 Plan of the thesis . 28 2 Signalling political constraints 30 2.1 Confrontation and judicial self-restraint . 32 2.2 A formal model of constitutional review . 35 2.2.1 Analysis . 38 2.2.2 Interpretation and comparative statics . 41 2.2.3 Empirical implications . 47 2.3 Conclusion . 48 2.4 Technical appendix . 49 3 Constitutional confrontation and judicial deference in Germany 51 3.1 Constitutional review in Germany . 52 3.2 Hypotheses and data . 61 3.2.1 Explanatory variables . 62 3.2.2 Control variables . 72 3.3 Estimation and analysis . 73 3.3.1 Costly signalling and judicial deference . 73 3.3.2 Anticipation of elections . 77 3.3.3 Robustness checks . 82 3.4 Discussion . 87 3.5 Appendix . 90 6 CONTENTS 4 Perspectives on constitutional confrontation 96 4.1 Anticipating constitutional review . 98 4.2 Auto-limitation and confrontation . 101 4.2.1 Respecting jurisprudence . 101 4.2.2 Flouting jurisprudence . 103 4.2.3 The costs of ignoring advice . 106 4.3 Perspectives from the court . 110 4.3.1 The prospects of backlash against the GFCC . 111 4.3.2 Perceptions of non-compliance . 114 4.3.3 The echoes of politics at the court . 117 4.4 Conclusion . 122 4.5 Appendix . 123 5 The 2008 Federal Criminal Police Office Act 126 5.1 Balancing protection by and against the state . 129 5.1.1 The BKA's investigative powers . 129 5.1.2 The BKA's use of surveillance data . 131 5.2 The BKAG in the Bundestag . 134 5.2.1 Committee proceedings . 135 5.2.2 Constitutional controversy at plenary debates . 137 5.2.3 Linking objections to the court's demands . 140 5.3 The costs of provoking confrontation . 142 5.4 The response in the Bundestag . 145 5.5 Conclusion . 149 5.6 Appendix . 151 6 Counteracting ambition 152 6.1 Looking forward, looking backward . 154 6.2 Empirical findings . 155 6.3 Links to existing scholarship . 157 6.4 Beyond Germany . 158 6.5 Normative implications . 159 List of Figures 2.1 Sequence of play and realized outcomes . 36 2.2 Equilibrium predictions (π denotes the probability that the lawmaker controls implementation; p denotes the court's prior beliefs about the lawmaker's type; k denotes court's cost for striking a policy; c denotes the costs the lawmaker pays when the court strikes policy a; c∗ ≡ 1−k) 41 2.3 Probability r(c)∗ of court striking policy a conditional on lawmaker's cost c in a partial-pooling equilibrium with π > 1 − k and p ≤ (1 − k)/π 45 3.1 Annually cumulated proportion of respondents (in %) reporting their vote intention in response to the question \Which party would you vote for if federal elections were held this Sunday?" Figure reports Politbarometer survey data provided by Forschungsruppe Wahlen (2019) . 59 3.2 Posterior means, 90% and 95% highest probability densities for main fixed-effects coefficients of Model 1; posterior distributions are illustrated in grey . 75 3.3 First difference in predicted average marginal probabilities for Consti- tutional objections by opposition MP(s) and Constitutional objections by governing MP(s) with 5.0th{90th and 2.5th{97.5th percentiles of predictions . 76 3.4 Posterior means, 90% and 95% highest probability densities for main fixed-effects coefficients of Model 2; posterior distributions are illustrated in grey . 78 3.5 Posterior means, 90% and 95% highest probability densities for main fixed-effects coefficients of Model 3; posterior distributions are illustrated in grey . 80 8 LIST OF FIGURES 3.6 Predicted average marginal probabilities for Current government across range of Years until election (solid lines indicates mean values of predicted probabilities, shaded areas indicate 2.5{97.5th percentiles of predictions) . 81 3.7 Posterior means, 90% and 95% HPDs for coefficients for main fixed- effects coefficients of Model 6; posterior distributions are illustrated in grey . 85 3.8 Posterior means, 90% and 95% HPDs for coefficients for main fixed- effects coefficients of Model 7; posterior distributions are illustrated in grey . 87 List of Tables 3.1 Proportion of respondents stating that they trust an institution in response to the question \I am now going to read you a list of public institutions and organizations. Please tell me for each institution or organization whether you trust it, or whether that is not the case.

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