For this system, with its obvious inconveniences, von Delbrück proposed to substitute a collegiate one. The Ministers form a Cabinet, to which all questions concerning general policy or involving the province of their several departments are submitted. The Prime Minister is only the first among them, primus inter pares; the decision is made by the whole Cabinet, which naturally assumes the whole burden of responsibility.
The Constituent Assembly supported an intermediate solution, which partook both of the bureaucratic system and the collegiate. It adopted a sort of limited collegiate system. The Chancellor is not as formerly the only Minister of the Reich; he is Minister by the same title as the other members of the Cabinet, but he has a character distinct from those of the other Ministers. Without being a hierarchic superior over these he is on another plane and enjoys certain rights in comparison to the others.
This distinction established by the Constituent Assembly, between the two elements of the government, the Chancellor on the one hand and the Ministers on the other, is manifested in the three respects in the nomination of the ministers, their prerogatives and their responsibility.
(1) They are nominated in a different manner. The Chancellor is nominated by the President of the Reich who naturally must be guided therein by the political situation. According to circumstances, the President is obliged to nominate some party leader of the group forming the majority of the Reichstag; or his choice may be exercised among several political figures according to the combination possible among the parties of the majority. It is true that the Ministers are also appointed by the President of the Reich, but on the nomination by the Chancellor, and it seems that in practice the President is always bound by this consideration. The Chancellor may not be recalled; his functions cease only through resignation or because he is unseated by the majority of the Reichstag. The Ministers, on the other hand, may be recalled and the decision may be taken here, too, by the President of the Reich on the proposal by the Chancellor.
(2) In regard to powers there exists a still more profound difference between the Chancellor and the Ministers. The principle is this: the Chancellor determines and alone determines the general course of the Cabinet’s policy. The other Ministers direct the affairs of their respective departments along the lines fixed by the Chancellor in his general policy. ([Article 56].) In other words, it seems that the German Constitution, without expressly saying so, wants to establish the classic distinction between “governing” and “administering.” The Chancellor governs, the other members of the Cabinet administer. This essential distinction recurs more or less clearly enunciated in all the provisions relative to the powers of the Ministers.
The latter have as their most important function the exercise of those powers of which the President of the Reich is the chief holder. They prepare and countersign the ordinances of the President. But do they all indiscriminately countersign all decrees and may each Minister countersign any of the decisions of the President? Not in the least. The Chancellor countersigns all decisions touching the general policy of the Cabinet, but he is also authorized to sign other decrees. The Ministers countersign only the decrees that effect their respective departments. From this results the following: When a decree of the President is countersigned by a Minister it may be considered that the Cabinet holds it to be a purely administrative matter. Every decision presenting a certain political importance is either countersigned by the Chancellor only or by both the Chancellor and the Minister whose department is affected. The Ministers have in the second place their own powers. They make general or individual decisions which they sign themselves. These decisions are of two kinds: some of them must be deliberated on and decreed in the Council of Ministers; other decisions are taken by the Ministers individually.
There are above all powers which the Ministers exercise in the Council of Ministers, and it is here that the mixed character of the regulations provided by the Constitution is revealed still more clearly. The predominant position accorded the Chancellor comes from the fact that he presides over the Council of Ministers—when the President of the Reich is not present; and the fact that in case of a tie he decides. It may be asked if the Chancellor can be put in the minority and what would result from such a situation. Theoretically, according to the collegiate principle, a decision adopted by the majority must always be executed. But it seems that the Ministry cannot go against the opinion of the Chancellor, who alone has the right to fix the general lines of policy and who in addition can always exercise the threat of resigning, which would thereby involve the fall of the whole Ministry. The Council of Ministers has its own order of procedure which must be approved by the President.
On the other hand, the collegiate system is found to be very widely applied in the ensemble of the provisions vesting in the Council of Ministers some of the most important powers that properly belong to Ministers. The Chancellor fixes the general course of the policy to be pursued by the government; but the Ministers must see to it that in their various departments the policies practised conform to this general course, as well as that their individual policies do not conflict with the interests or the policies of other departments. Also the Constitution itself enumerates a certain number of matters which cannot be dealt with except in the Council of Ministers; and it provides that ordinary laws may extend the number and character of these matters. They are as follows:
(1) All projects of law. In contrast to what occurs in France, it is not the chief of state who has the initiative in laws but the Council of Ministers. All projects of laws emanating from the Cabinet must be discussed and drawn up in the Council before being sent to the Reichstag.
(2) All matters that touch the domains of the authority of the various Ministers, and on which the latter cannot privately come to an agreement.