Enabling Act of 1933

The Enabling Act ("Ermächtigungsgesetz" in German) was passed by the "Reichstag" (Germany's parliament) on March 23, 1933 and signed by President Paul von Hindenburg the same day. It was the second major step, after the Reichstag Fire Decree through which Adolf Hitler obtained plenary powers using legal means. The Act granted the Cabinet of Germany the authority to enact laws without the participation of the "Reichstag" for four years.

The formal name of the Enabling Act was "Gesetz zur Behebung der Not von Volk und Reich" ("Law to Remedy the Distress of the People and the Nation").

Enabling Act text

As with most of the laws passed in the process of "Gleichschaltung", the Enabling Act is quite short, considering its consequences. It is therefore reproduced in full in German and English:

The Enabling Act was passed by the Reichstag on March 23. It was proclaimed by the government the following day. Following constitutional procedure for legislation, the law was countersigned by President von Hindenburg, Chancellor Hitler, Minister of Interior Frick, Foreign Minister von Neurath, and Minister of Finance von Krosigk.

Background

After being appointed chancellor of Germany, on January 30, 1933, Hitler asked President von Hindenburg to dissolve the Reichstag. A general election was scheduled for March 5, 1933.

The burning of the Reichstag six days before the election, depicted by the Nazis as the beginning of a communist revolution, resulted in the Reichstag Fire Decree, which (among other things) suspended civil liberties and habeas corpus rights. Hitler used the decree to have the Communist Party's offices raided and its representatives arrested, effectively eliminating them as a political force.

Although receiving five million more votes than in the previous election, the NSDAP had failed to gain an absolute majority in parliament, depending for a slim majority on the 52 seats won by its coalition partner, the German National People's Party.

To free himself from this dependency, Hitler had the cabinet in its first post-election meeting on March 15 draw up plans for an Enabling Act, which would give the cabinet legislative power for four years. The Nazis devised the Enabling Act to gain complete political power without the need of the support of a majority in the Reichstag and without the need to bargain with their coalition partners.

Preparations and negotiations

The Enabling Act allowed the cabinet to enact legislation, including laws deviating from or altering the constitution, without the consent of the Reichstag. Because this law allowed for departures from the constitution, it was itself considered a constitutional amendment and thus its adoption required a two-thirds majority, with at least two-thirds of deputies attending the session.

The Social Democrats (SPD) and the Communists (KPD) were expected to vote against the Act. The government had already arrested all Communist and some Social Democrats deputies under the Reichstag Fire Decree. The Nazis expected the parties representing the middle class, the Junkers and business interests to vote for the measure, as they had grown weary of the instability of the Weimar Republic and would not dare to resist.

Hitler believed that with the Centre Party members' votes, he would get the necessary two-thirds majority. Hitler negotiated with the Centre Party's chairman, Ludwig Kaas, a Catholic priest, finalizing an agreement by March 22. Kaas agreed to support the Act in exchange for the protection of Catholics' civil and religious liberties, religious schools and the retention of civil servants affiliated with the Centre Party.

Some historians, such as Klaus Scholder, have maintained that Hitler also promised to negotiate a Reichskonkordat with the Holy See, a treaty that formalised the position of the Catholic church in Germany on a national level. Kaas was a close associate of Cardinal Pacelli, then Vatican Secretary of State (and later Pope Pius XII). Pacelli had been pursuing a German concordat as a key policy for some years but the instability of Weimar governments as well as the enmity of some parties to such a treaty rendered the project moot. [Klaus Scholder "The Churches and the Third Reich" volume 1 pp 160-1 ] The day after the Enabling Act vote Kaas went to Rome in order to, in his own words, "investigate the possibilities for a comprehensive understanding between church and state". [Letter from Kaas to von Bergen, German ambassador to the Vatican, translation quoted in Scholder, p. 247] However, so far no evidence for a link between the Enabling Act and the Reichskonkordat has surfaced.

Passing of the Enabling Act

Debate within the Centre Party continued until the day of the vote, March 23, with Kaas advocating voting in favour of the act, referring to an upcoming written guarantee from Hitler, while former Chancellor Heinrich Brüning called for a rejection of the Act. The majority sided with Kaas, and Brüning agreed to maintain party discipline by voting for the Act.

Meanwhile, the Social Democrats initially planned to hinder the passage of the Act by boycotting the Reichstag session, rendering that body short of the quorum (two thirds) needed to vote on a constitutional amendment. The Reichstag, however, led by its President, Hermann Göring, changed its rules of procedure, allowing the President to declare that any deputy who was "absent without excuse" was to be considered as present, in order to overcome obstructions. Because of this procedural change, the Social Democrats were obliged to attend the session, and committed to voting against the Act.

Later that day, the Reichstag assembled under intimidating circumstances, with SA men swarming inside and outside the chamber. Hitler's speech, which emphasised the importance of Christianity in German culture, was aimed particularly at appeasing the Centre Party's sensibilities and incorporated Kaas' requested guarantees almost verbatim. Kaas gave a speech, voicing the Centre's support for the bill amid "concerns put aside", while Brüning notably remained silent. Only the Social Democratic chairman Otto Wels spoke against the Act. Kaas had still not received the written constitutional guarantees he had negotiated, but with the assurance it was being "typed up", voting began. Kaas never received the letter.

At this stage, the majority of parties already supported the bill, and any deputies who might have been reluctant to vote in favour were intimidated by the SA troops surrounding the meeting. In the end, all parties except the SPD voted in favour of the Enabling Act. With the Communist delegates removed and 26 SPD deputies arrested or in hiding, the final vote was 441 supporting the Enabling Act to 94 (all Social Democrats) opposed. The Reichstag had adopted the Enabling Act with 83% of the deputies. After it had been also approved of by the Reichsrat, the Act was signed into law.

Consequences

Under the Act, the government had acquired the authority to pass laws without either parliamentary consent or control. Unprecedentedly, these laws could even deviate from the Constitution. The Act effectively eliminated the Reichstag as active players in German politics, though the existence of the body, alongside that of the Reichsrat and of the office of President were protected under the Act. Together with the Reichstag Fire Decree, it formed the legal and constitutional basis for the Third Reich.

The Act also effectively removed Presidential oversight, as Hindenburg's representative had stated that the aged president was withdrawing from day-to-day affairs of government and that presidential collaboration on the laws decreed as a result of the Enabling Act would not be required.

During the negotiations between the government and the Centre Party, it was agreed that the government should inform the Reichstag parties of legislative measures passed under the Enabling Act. For this purpose, a working committee was set up, chaired by Hitler and the Centre's chairman Kaas. However, this committee met only three times without any major impact, and rapidly became a dead letter as one party after another was either banned or forced to shut down.

Though the Act had formally given legislative powers to the government as a whole, these powers were for all intents and purposes exercised by Hitler himself; as Joseph Goebbels wrote shortly after the passage of the Enabling Act:

The authority of the Führer has now been wholly established. Votes are no longer taken. The Führer decides. All this is going much faster than we had dared to hope.

Formal cabinet meetings were rare during the whole Third Reich and did not occur at all after the outbreak of the Second World War.

The passage of the Enabling Act reduced the Reichstag to a mere stage for Hitler's speeches. It only met sporadically until the end of World War II, held no debates and enacted only a few laws. Within three months after the passage of the Enabling Act, all parties except the Nazi Party were banned or pressured into dissolving themselves, followed on July 14 by a law that proscribed the founding of political parties. By this, Hitler had fulfilled what he had promised in earlier campaign speeches: "I set for myself one aim ... to sweep these thirty parties out of Germany!"

It is indicative of the care that Hitler took to give his dictatorship an appearance of legality that the Enabling Act was renewed twice, in 1937 and in 1941. In 1942, the Reichstag passed a law giving Hitler power of life and death over every German citizen, which effectively extended the provisions of the Enabling Act for the duration of the war.

Ironically, the Enabling Act was technically breached three times in 1934. In January, the Länder (states) were practically abolished, effectively eliminating the Reichsrat. A month later, the Reichsrat itself was dissolved. In August, President von Hindenburg died, and Hitler appropriated the president's powers for himself. However, the Weimar Constitution had been amended in 1932 to make the president of the High Court of Justice acting president until elections could be held. Nonetheless, Hitler had now become law unto himself, and no one dared raise any objections.

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