II.—AUTHORITY OF NATIONAL OVER STATE LAWS.
However precise and rigorous may be the division of the authority between the Reich and the states, conflicts may nevertheless arise between the two. In such cases it was natural that the Reich should claim for its laws, “the authority of Empire surpasses the authority of states.”
3.—THE ADMINISTRATIVE SERVICES OF THE REICH.
Before the Revolution the Reich did not have in principle an administration proper to it; the execution of the laws of the Empire were as a general rule assured by the functionaries of the member-states under the control of the Reich. The new Constitution continued, it is true, the same principle but it provided exceptions of the first importance. Three hypotheses must be noted here:
1. Certain powers belong exclusively to the Reich. They are those which we have enumerated as contained in [Article 6]. The Reich has the exclusive right to legislate on these matters, but in addition it has also the sole right to execute these laws; that is to say, it creates and directs the administrative services necessary to assure the application of the provisions which it has the exclusive right to promulgate. Foreign affairs, the army, the navy, etc., are administered directly by the Reich. But in addition in matters that belong concurrently both to the Reich and to the State and which have been placed in the hands of the Reich the latter has created a special administration which it directs itself, that of finances.
2. In other cases in which the Reich has the right to legislate and uses it, it yet leaves the care of the execution of these laws to the functionaries of the State. Although these public services are instituted and organized according to the laws of the Reich the functioning is assured exclusively by the officials of the state. There was formerly, and there still is to-day, the hypothesis of authority in common in matters of public security, assistance and the Reich.
3. In a third series of cases, finally, the states have exclusive competence. They may both legislate and administer.
Of these three hypotheses the one most important from our present point of view is the first. The recognized right of the Reich to have public services designed to apply its laws and acts, permits it to organize public administrations and to have functionaries subordinate directly to the Reich throughout the whole German territory. The unity of the Reich is greatly strengthened by the fact that the principal public services—the army, finances, diplomatic corps, postal telegraphs, railroads—are hereafter completely concentrated in its hands.
In addition when the Reich fails to organize its own administration or when it has left to the states the task of legislating on subjects that are contained in the legislative competence of the Reich, the latter is far from being weakened in its power therein. For it possesses in such cases the Right of Control over the administrative authorities of these states, and this right was notably strengthened by the Constitution of 1919 as compared to its former power.
According to the terms of [Article 15], paragraph 2, control by the Reich may be exercised by the government of the Reich in matters on which the latter has the right to legislate. That means that control on the part of the Reich extends not only to the domains which have been already assigned to it by the legislation of the Reich, but also to matters in which it has the right to legislate even though it has not yet made use of such right.