Anenabling act is a piece oflegislation by which alegislative body grants an entity which depends on it (for authorization orlegitimacy) for thedelegation of the legislative body's power to take certain actions.[1] For example, enabling acts often establishgovernment agencies to carry out specific government policies in a modern nation. The effects of enabling acts from different times and places vary widely.
The German word for an enabling act isErmächtigungsgesetz (lit. 'empowering law'). It usually refers to theenabling act of 23 March 1933 which became a cornerstone ofAdolf Hitler's seizure of power.
The first enabling act is dated from 4 August 1914 just after theGerman entry into World War I. With the vote of theSocial Democratic Party, theReichstag (theGerman Empire's parliament) agreed to give the government certain powers to take the necessary economic measures during the war. Such enabling acts were also common in other countries. The Reichstag had to be informed, and had the right to abolish a decree based on the enabling act. This ensured that the government used its rights with care and only in rare cases was a decree abolished. The parliament retained its right to make law.[2]
In theWeimar Republic (1919–1933), there were several enabling acts: three in 1919, one in 1920, one in 1921, three in 1923, one in 1926, and one in 1927. The enabling act on 24 February 1923, originally limited until 1 June but extended until 31 October, empowered the cabinet to resist theoccupation of the Ruhr.[3] There was an enabling act on 13 October 1923 and an enabling act on 8 December 1923 that would last until the dissolution of the Reichstag on 13 March 1924.[4]
Most of them had a temporal limit but only vague thematic limits. On the basis of these acts, a vast number of decrees were signed with enormous importance for social and economic life, the judicial system, and taxes. For example, the reform ofGerman currency in response tohyperinflation, the merger of theLänderbahnen into theDeutsche Reichsbahn national railway system, andunemployment pay were settled via such decrees (Vollmacht-Verordnungen).[5] TheEmminger Reform of 4 January 1924 abolished thejury astrier of fact and replaced it with a mixed system ofjudges andlay judges inGermany's judiciary which still exists today.
These enabling acts were unconstitutional, as the Weimar constitution did not provide the possibility that one organ (parliament) would transfer its rights to another one (executive government). But constitutional experts accepted them because they came into existence with a two-thirds majority, the same majority as for constitutional changes. The government had succeeded in gathering those majorities by threatening to call for presidential emergency dictatorial decrees (Notverordnungen), otherwise. In March 1924, the Reichstag wanted to discuss the abolition of decrees (which were granted by the enabling act of February that year). PresidentFriedrich Ebert dismissed parliament to avoid discussion and abolishments.[6]
In later years, governments failed to gather two-thirds of majorities since the radicalization of therevolutionary national-conservativeGerman National People's Party in 1928 and therise of the National Socialist Workers' Party (Nazi Party) after 1930. ChancellorHeinrich Brüning (1930–1932) worked with presidential decrees which replaced most of the ordinary legislature, eventually.
The enabling acts had set a poor and dangerous example, but for the government, they had the advantage that they appeared less unconstitutional and dictatorial compared to presidential decrees. Parliament could prefer those acts because they were valid only for a limited time and included mostly a kind of cooperation (e.g. via a special house committee).
The German wordErmächtigungsgesetz usually refers to theEnabling Act of 1933, officiallyGesetz zur Behebung der Not von Volk und Reich ("Law to Remedy the Distress of the People and the State"). It became a cornerstone ofAdolf Hitler'sseizure of power. Unlike, for example,Wilhelm Marx's enabling act of December 1923, Hitler's Act:
In comparison to the situation of the 1920s, Hitler's Nazi Party and his coalition partner theDNVP did have a parliamentary majority since thegeneral elections of 3 March 1933.[7] Those elections and then the voting in theReichstag were carried out in a climate of intimidation and violence carried out byright-wing paramilitary groups such as the NaziSturmabteilung. On 23 March, theCommunist Party of Germany was already banned and its delegates imprisoned, the Social Democrat delegates were the only ones present in the Reichstag to vote against, while the Centre Party and centre-right parties voted yes.
The Enabling Act of 1933 was renewed by a purelyNazi Reichstag in 1937 and 1939. In 1941 and 1943, it was renewed by decree, though without a time limit in 1943. Although it states that it is valid only for the duration of the current Hitler government of 1933, it remained in force even after major changes of ministers. In any case, Hitler called the cabinet together only very rarely after the first months of 1933. The last cabinet meeting happened in 1937. He preferred to govern via decrees and personal orders.
Following the enactment in 1949 of theBasic Law (Grundgesetz), there have been no enabling acts in the Federal Republic ofGermany. The constitution states that it can be changed only by an explicit alteration of the phrasing.
TheChurch of England Assembly (Powers) Act 1919 (9 & 10 Geo. 5. c. 76) gave a considerable degree of self-government to theChurch of England while retaining overall parliamentary supervision. Before its passing, almost all adjustments to the legal structure of the Church of England had involved getting a specific bill through Parliament.[8] It took nine sessions to approve the salary of theArchdeacon of Cornwall,[9] and of the 217 bills introduced into the House of Commons between 1880 and 1913, only 33 passed into law for lack of parliamentary time, among the casualties being the bills to establish new dioceses.[10]
The act gave the newly establishedChurch Assembly, predecessor of theGeneral Synod, power to prepare and present to Parliament measures which could either be approved or rejected, but not modified by either House. Before being voted on, the proposals were examined by anEcclesiastical Committee of both Houses which reported on their effects and implications. Once approved in Parliament, the measure became law on receiving royal assent.[11]
The act continues to apply today to theGeneral Synod of the Church of England which, as a result of theSynodical Government Measure 1969, replaced the Church Assembly with the aim of achieving full integration of the laity and eliminating the complications caused by the dual control of theConvocations of Canterbury and York, and the Assembly. All the Assembly's powers passed to the new synod along with many of those of the Convocations.[12]
In the 1930s, both SirStafford Cripps andClement Attlee advocated an enabling act to allow a futureLabour government to passsocialist legislation which could not be amended by normal parliamentary procedures and theHouse of Lords. According to Cripps, his "Planning and Enabling Act" would not be able to be repealed, and the orders made by the government using the act would not be allowed discussion inParliament. Cripps also suggested measures against themonarchy, but quickly dropped the idea.[13]
During theGreat Depression andWorld War II,Oswald Mosley'sBritish Union of Fascists pledged to enact an enabling act establishing acorporatistdictatorship if it were allowed to form a government. It would have totallynationalized the economy into anational corporation with 25 affiliates represented in the government through a reformedHouse of Lords, abolished theHouse of Commons' legislative authority, and allowed a royally-appointedPrime Minister andCabinet to rule by decree throughOrders in Council.[14] In 1966Oswald Mosley advocated agovernment of national unity drawn from "the professions, from science, from the unions and the managers, from businessmen, the housewives, from the services, from the universities, and even from the best of the politicians". This coalition would be a "hard centre" oriented one which would also get Parliament to pass an Enabling Act in order to stop what Mosley described as "time-wasting obstructionism of present procedure". He also claimed that Parliament would always retain the power to dismiss his government by amotion of censure if its policies failed or if it attempted to "override basic British freedoms".[15]
In early 2006 theLegislative and Regulatory Reform Bill was introduced to Parliament. This Bill, if enacted as introduced, would have enabled Government ministers to amend or repeal any legislation (including the L&RR Bill itself), subject to vague and highly subjective restraints, by decree and without recourse to Parliament. The Bill was variously described as the "Abolition of Parliament Bill"[16] and "of first-class constitutional significance ... [and would] markedly alter the respective and long standing roles of minister and Parliament in the legislative process".[17] The Bill was, in essence, an Enabling Act in all but name. After some amendment by the government and Lords, the Legislative and Regulatory Reform Bill receivedRoyal Assent on 8 November 2006.[18] Amendments included removing its ability to modify itself or theHuman Rights Act 1998; most of the other modifications were much more subjectively defined.
In the United States at the national level, an "enabling act" is astatuteenacted by theUnited States Congress authorizing the people of aterritory to frame a proposedstate constitution as a step towardsadmission to the Union. Each act details the mechanism by which the territory will be admitted as a state following ratification of their constitution and election of state officers.
Enabling acts can contain restrictions, such as the prohibition ofpolygamy in theUtah,Arizona,New Mexico, andOklahoma acts.[19]Nevada was required to abolishslavery andinvoluntary servitude, exceptas punishment for a crime; to guaranteefreedom of religious practice to all inhabitants; and to agree that allpublic lands owned by the federal government at the time of statehood would be retained after admission.[20] The applicant territory then submits its proposed constitution to Congress, which either accepts it or requires changes. For example, in 1866, Congress refused the proposedNebraska constitution because it limitedsuffrage to white males. Enabling Acts approved by Congress include:
Although the use of an enabling act is a traditional historic practice, a number of territories have drafted constitutions for submission to Congress absent an enabling act and were subsequently admitted, and the act of Congress admitting Kentucky to the Union was passed before the constitution of Kentucky was drafted.
At the state government level, state enabling acts allow local jurisdictions to make laws regarding certain issues on the state's behalf. For example, many states passed their own version of theStandard State Zoning Enabling Act, which enabled municipalities to regulate land use with localzoning laws. Other enabling acts have allowed municipalities to establishforeign-trade zones, collectimpact fees, or create public utilities.
InVenezuela, enabling laws allowing the president torule by decree in selected matters were granted toRómulo Betancourt (1959),[24]Carlos Andrés Pérez (1974),[25]Jaime Lusinchi (1984),[26]Ramón José Velásquez (1993)[27] andRafael Caldera (1994).[28] Pérez issued over 3,000 decrees under the powers delegated to him.[29]
In mid-2000, a similar law enabledHugo Chávez to legislate on issues related to the economy, reorganization of government ministries and crime for one year. Chávez did not take advantage of this act until shortly before its expiration, when he passed 49 decrees in rapid succession, many of them highly controversial.[30][31] In 2007, a newenabling act granted President Chávez powers for 18 months, giving the president the ability to rule by decree over certain economic, social, territorial, defense and scientific matters as well as control over transportation, regulations for popular participation and rules for governing state institutions.[32]
{{cite book}}:ISBN / Date incompatibility (help)The constitutional reform in Turkey of 2016 and the conditions under which it is being pushed through recall legal procedures like the Enabling Act 1933 by which the Nazis came to power in Germany in the 1930s. This has been noted by many international and in particular German, Austrian and Swiss media including 'Die Tagesschau', 'Der Standard' and 'Neue Zuricher Zeitung'.
