#1. Legislative History

N. 1 Art. 173 Fed. Const. summarises the «additional» tasks and powers of the Federal Assembly that are not already regulated in Art. 163–172 Fed. Const. The Message on a New Federal Constitution of 20 November 1996 describes this provision as a «collective article for the powers of the Federal Assembly scattered in the previous constitution» (BBl 1997 I 1, 382). The constitutional legislator thereby wanted to create a clear presentation of parliamentary competences that go beyond the classic legislative, financial and electoral functions.

N. 2 The revision followed the principle of updating: Most powers were already contained in the Federal Constitution of 1874, but were systematically reorganised. What was newly added was in particular the explicit anchoring of participation in important planning of state activities (lit. g), thereby taking account of the growing importance of strategic planning instruments (BBl 1997 I 382 f.).

#2. Systematic Classification

N. 3 Art. 173 Fed. Const. stands at the end of Section 2 on the Federal Assembly (Art. 148–173 Fed. Const.) and forms, as it were, a catch-all provision for all non-specifically regulated parliamentary competences. The norm is closely connected with:

• → Art. 163 Fed. Const. (legislative competences)
• → Art. 164 Fed. Const. (forms of legislation)
• → Art. 165 Fed. Const. (emergency legislation)
• → Art. 184–185 Fed. Const. (competences of the Federal Council in security policy)
• ↔ Art. 189 Fed. Const. (jurisdictions of the Federal Supreme Court)

N. 4 The relationship to the competences of the Federal Council is of particular importance: While Art. 173 para. 1 lit. a and b Fed. Const. assign measures for safeguarding security to the Federal Assembly, Art. 184 para. 3 and 185 para. 3 Fed. Const. grant the Federal Council its own emergency ordinance competences. This distribution of competences has led to various jurisdictional conflicts (→ N. 15 ff.).

#3. Elements of the Offence / Normative Content

N. 5 External security, independence and neutrality (lit. a): The Federal Assembly makes the fundamental decisions in foreign and security policy. These include the approval of international treaties (→ Art. 166 Fed. Const.), basic security policy decisions and the definition of neutrality policy. The operational implementation is the responsibility of the Federal Council (→ Art. 184 Fed. Const.).

N. 6 Internal security (lit. b): This competence encompasses measures against threats to the constitutional order, social peace and public security. The demarcation from cantonal police competences follows the subsidiarity principle (→ Art. 57 Fed. Const.).

N. 7 Emergency ordinances (lit. c): In extraordinary circumstances, the Federal Assembly can itself issue ordinances or simple federal decrees. This competence differs from general emergency legislation under Art. 165 Fed. Const. in that it is not limited to formal acts. BGE 148 IV 298 confirmed that such enactments satisfy the principle of legality.

N. 8 Active service (lit. d): The Federal Assembly decides on the mobilisation of the army. This competence has not been exercised since the Second World War, but remains significant as an expression of parliamentary control over the military.

N. 9 Enforcement of federal law (lit. e): This provision authorises federal intervention in cases of cantonal violations of law (→ Art. 49 Fed. Const.). The competence also includes instructions to the Federal Council for the enforcement of Federal Supreme Court decisions.

N. 10 Validity of popular initiatives (lit. f): The Federal Assembly examines popular initiatives for their compatibility with mandatory provisions of international law, unity of form and subject matter (→ Art. 139 para. 3 Fed. Const.). BGE 138 I 61 clarified the demarcation from subsequent legal protection by the Federal Supreme Court.

N. 11 Participation in planning (lit. g): This power is concretised in the approval of legislative planning, sectoral plans and strategic management instruments. The scope depends on the statutory design.

N. 12 Individual acts (lit. h): Only when a federal act expressly provides for this does the Federal Assembly decide on individual acts. Examples are certain concession decisions or the approval of international treaties in individual cases.

N. 13 Jurisdictional conflicts (lit. i): The Federal Assembly decides in conflicts between the Federal Council, Federal Supreme Court and Office of the Attorney General. BGE 129 II 193 specified that the Federal Council as the supreme governing authority has independent competences that are not subject to parliamentary hierarchy.

N. 14 Pardons and amnesty (lit. k): The pardoning competence is exercised by a permanent commission. Amnesties (general remissions of punishment) are rare and politically controversial, as shown by the failed amnesty requests for youth riots in 1982 and conscientious objectors.

#4. Legal Consequences

N. 15 The competences listed in Art. 173 Fed. Const. establish partly exclusive, partly competing powers of the Federal Assembly. In the case of security competences (lit. a–c), there is competition with the emergency ordinance rights of the Federal Council under Art. 184 para. 3 and Art. 185 para. 3 Fed. Const. Practice has shown that in urgent situations the Federal Council acts primarily, but the Federal Assembly can subsequently approve or take its own measures.

N. 16 The legal acts of the Federal Assembly based on Art. 173 Fed. Const. are subject to different possibilities of challenge. Emergency ordinances under lit. c can be subject to abstract judicial review, while individual acts under lit. h may be subject to appeal to the Federal Supreme Court depending on the statutory design (→ Art. 189 Fed. Const.).

#5. Points of Dispute

N. 17 Scope of emergency ordinance competence: Tschannen (Staatsrecht der Schweizerischen Eidgenossenschaft, 5th ed. 2021, § 44 N. 18) advocates a narrow interpretation, according to which only immediate dangers to security trigger this competence. In contrast, Biaggini (BV Kommentar, 2nd ed. 2017, Art. 173 N. 7) favours a broader interpretation that also includes preventive measures. The Federal Supreme Court in BGE 148 IV 298 confirmed the constitutionality of the Al-Qaïda/IS Act enacted on this basis, without deciding the dogmatic controversy.

N. 18 Federal/cantonal relationship in internal security: Schweizer (St. Galler Kommentar BV, 4th ed. 2023, Art. 173 N. 12) emphasises the subsidiary nature of federal competences, while other commentators argue for more generous federal competence for supra-cantonal threats. The Covid-19 pandemic has revived this discussion.

N. 19 Justiciability of validity decisions: Rhinow/Schefer (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 3421) criticise the limited reviewability of parliamentary validity decisions. Kley (Die Ungültigerklärung eidgenössischer Volksinitiativen, ZBl 2018, 567) calls for extended appeal possibilities. BGE 138 I 61 has affirmed the right to legal remedies in cases of obvious violations, but confirmed the primary jurisdiction of the Federal Assembly.

#6. Practice Notes

N. 20 In applying Art. 173 Fed. Const., the precise demarcation of competences from other constitutional organs is central. Particularly in security matters, it must be clarified whether the situation justifies the use of parliamentary emergency ordinances or whether the Federal Council should act primarily under Art. 184/185 Fed. Const. Practice shows that in cases of immediate danger the Federal Council takes the lead, while the Federal Assembly adopts its own regulations for longer-term threat situations.

N. 21 For parliamentary practice it is significant that Art. 173 para. 2 Fed. Const. contains a general clause: All federal competences that are not assigned to another authority fall within the jurisdiction of the Federal Assembly. This prevents competence gaps, but requires careful examination of existing special assignments.

N. 22 Pardoning practice follows strict criteria: Personal hardship, resocialisation and passage of time are decisive. Politically motivated pardons are rarely successful. For amnesty requests, it should be noted that these can only be granted by federal decree of the United Federal Assembly and are subject to the optional referendum.

#Application of Urgent Federal Law (Art. 173 para. 1 lit. c Cst.)

BGE 148 IV 298 of 11 April 2022: Applicability of the Al-Qaeda/IS Act as urgent federal law of the Federal Assembly. The law enacted by urgent procedure constitutes a law in the formal sense that complies with the principle of legality.

«The Al-Qaeda/IS Act enacted by urgent procedure is a law in the formal sense that satisfies the principle of legality enshrined in Art. 1 SCC, even though it was enacted by urgent procedure.»

#Conflicts of Jurisdiction between Supreme Federal Authorities (Art. 173 para. 1 lit. i Cst.)

BGE 129 II 193 of 21 February 2003: Delimitation of powers between the Federal Council and the Federal Assembly in political expulsions. The Federal Council, as the supreme governing authority, has independent powers that are not subject to hierarchical review by other bodies.

«The Federal Council not only stands at the head of the federal administration (Art. 178 paras. 1 and 2 Cst.) but is also directly entrusted with governing the state (Art. 180 para. 1 Cst.) as a collegiate government. An appeal to a hierarchically superior authority is thus excluded from the outset.»

#Validity of Popular Initiatives (Art. 173 para. 1 lit. f Cst.)

BGE 138 I 61 of 20 December 2011: Subsequent legal protection in federal popular votes and delimitation of jurisdiction between the Federal Assembly and the Federal Supreme Court. The Federal Assembly has primary responsibility for examining the validity of popular initiatives.

«First, the basic features of legal protection in voting rights matters must be outlined. A distinction must be made between the period before and after the judicial reform came into force.»

BGE 143 I 129 of 14 December 2016: Declaration of invalidity of a cantonal popular initiative by the cantonal Grand Council. The requirement that popular initiatives be compatible with superior law is consistent with the federal order.

«Requirement of compatibility of cantonal popular initiatives with superior law (consideration 2.1); rules of interpretation for examining the validity of a popular initiative (consideration 2.2).»

BGE 149 I 291 of 3 May 2023: Validity of a municipal popular initiative in the energy sector. The Federal Assembly participates indirectly in assessing the validity of popular initiatives through its legislative power.

«Interpretation of a popular initiative to assess its legality (consideration 3.3). The initiative "Hochdorf heizt erneuerbar - ab 2030 erst recht" contains a binding objective and aims at a policy decision (consideration 3.4).»

#Pardons and Amnesty (Art. 173 para. 1 lit. k Cst.)

Parliamentary practice shows various amnesty requests that were dealt with by the Federal Assembly:

• Amnesty request Youth riots 1982 (88.228 of 5 October 1990): Parliamentary initiative for amnesty for minor criminal offences on the occasion of the 700th anniversary of the Confederation was rejected.

• Amnesty request Conscientious objectors (89.247 of 11 March 1991): Treatment of amnesty requests for conscientious objectors in the military sphere by the competent parliamentary committees.

#Active Service and Army Mobilisation (Art. 173 para. 1 lit. d Cst.)

Historical decisions document the exercise of this power:

• BGE 68 II 212 (1942): Claims for damages in connection with active service during the Second World War show the practical scope of the Federal Assembly's army mobilisation power.

• BGE 67 I 147 (1941): Civil liability of the Confederation for damage caused by military vehicles during active service illustrates the legal consequences of the active service decision.

#Participation in State Planning (Art. 173 para. 1 lit. g Cst.)

Parliamentary negotiation reports document the exercise of this power in various state planning projects, particularly in the areas of security policy and infrastructure.