This article critically analyzes the German government’s draft legislation, the Wehrdienst-Modernisierungsgesetz (WDModG), aimed at reintroducing mandatory military service (Wehrpflicht). The author argues that the proposed mechanism—allowing the Federal Government (Executive) to activate conscription via a legal ordinance (Rechtsverordnung), even with the subsequent consent of the Bundestag—is unconstitutional. The decision regarding the implementation of mandatory service ("the ob") constitutes a fundamental normative decision (wesentliche Frage) because it involves severe restrictions on the basic rights of young men (including freedom of person and movement) and is crucial to state policy. According to the principle of legal reservation (Vorbehalt des Gesetzes) and the democracy principle, such decisions must be made directly by the democratically elected legislature through a formal, transparent legislative process, which a mere executive ordinance (even with parliamentary consent) cannot replace.
Summary of the Article: "Die Wehrpflicht ist nicht unwesentlich"
The Proposed Legislation (WDModG): The draft law seeks to reactivate mandatory military service (Wehrpflicht) not just in cases of tension or defense (as currently conditional), but whenever the Federal Government deems it necessary due to the defense policy situation requiring a rapid "Aufwuchs der Streitkräfte" (growth of the armed forces) that cannot be met voluntarily.
Mechanism of Activation: The government proposes to activate conscription (with service lasting between 6 and 12 months) through a legal ordinance (Rechtsverordnung) that requires the subsequent approval of the Bundestag.
Fundamental Constitutional Critique: The decision to introduce conscription (the "ob") cannot be made by the administration (executive). This is the exclusive domain of the legislature (Gesetzgeber).
Principle of Legal Reservation (Vorbehalt des Gesetzes): The introduction of conscription involves comprehensive restrictions on basic rights, including physical integrity, freedom of person, freedom of movement, and inviolability of the home (§ 51 Wehrpflichtgesetz). Decisions that fundamentally restrict basic rights must be made by the legislature itself.
Democracy Principle Violation: Conscription is deemed a "fundamental question" for society (wesentliche Frage), regardless of its basic rights relevance. The choice between a conscript army and a voluntary army is a foundational state-political decision that requires the public debate, transparency, and inclusion of the opposition inherent in a formal parliamentary legislative process.
Executive Ordinance vs. Parliamentary Law: The author emphasizes that parliamentary consent to an executive ordinance does not equate to the deliberative scrutiny of a law passed through the three required readings. The ordinance process bypasses the necessary procedures that ensure a "politically pluralistic politicization."
Historical Context: When conscription was suspended in 2011, the government recognized that the decision required a comprehensive legislative balancing of young men's fundamental rights, security considerations, and socio-economic aspects. The current draft inappropriately transfers this weighty decision to the executive.
Key Takeaway: The activation of conscription cannot be legitimized through a mere Rechtsverordnung, as this severely undermines the fundamental democratic and rule-of-law principles requiring the legislature to decide on matters of essential societal and constitutional importance. The proposed regulation is considered "evidently unconstitutional."
Supporting Comment (Mr. Nadler): An appended comment supports the critique, noting the additional deficit that executive ordinances often lack formal justification/reasoning, a flaw previously highlighted during legal challenges to COVID-19 related ordinances.