Powers

source: Le Monde, LES DÉCODEURS

author: Eléa Pommiers

translation: doxa-louise

WHAT ARE THE TRUE POWERS OF THE PRESIDENT OF THE REPUBLIC,
WITH OR IN THE ABCENSE OF A GOVERNMENTAL MAJORITY?

Emmanuel Macron and Marine Le Pen are debating their respective programs
in the hope of convincing the electorate. But is what they are putting forward
truly relevant to the post of President?

Can the President of the Republic truly do anything? The debates
of the presidential election, with candidates putting forward extremely
precise programs, sometimes give the impression that they can. Yet if winning
the election is a necessary stage for Emmanuel Macron or Marine Le Pen,
it is far from sufficient. The quasi-totality of the promised measures
put forth by the two candidates can only be attained if the winner of the May 7
election also obtains a majority in the National Assembly. To explain.

WHAT  THE CONSTITUTION SAYS

The text of the constitution is very clear on the allotment of powers. The
government ' determines and carries out the politics of the nation'; Parliament
votes laws and can overthrow the government. The President, for his part, is a
'referee'  who insures 'the normal functioning of public powers' and 'continuity
in the affairs of State', as well as a safeguard for 'national independence, maintaining
the integrity of territory and the respect of treaties'.

Thus, in terms of the constitution, the interior politics of the country are not in
the purview of the President of the Republic. His powers remain, in reality, within
bounds:

⦁ he safeguards the Constitution and thus is allowed to seize the Conseil
   constitutionnel if he feels that a law is in violation of its principles (but
   now parliamentarians can do this as well since 1974);

⦁ he names the Prime Minister as he sees fit;

⦁ he is Commander in Chief of the armies and the sole authority to launch a nuclear
   attack;

⦁ he can arrogate to himself extraordinary powers in a situation of 'serious and immediate'
   threat to institutions, the independence of the nation, the integrity of territory or
   the execution of international accords;

⦁ he is free to dissolve the National Assembly;

⦁ he can repeal a death sentence on his own right;

⦁ he negotiates and sign international accords;

⦁ he can order a referendum to pass a law by virtue of article 11 (on a limited
   number of subjects);

The President of the Republic also n0minates for certain 'civilian and military' positions
without power of delegation. Thus he alone will name prefects, Councilors of state,
Ambassadors, academic Rectors or again directors of central administrations; but
also various magistrates, professors of higher education, or officers of the Army,
 Navy  and Air Force. Emmanuel Macron an Marine Le Pen could become the sole
signatories of such decrees once elected.




DO PRESIDENTS FOLLOW THE LETTER OF THE TEXT?

In most cases, these procedures are diluted in practice. In the case where
he holds a favourable majority in the National Assembly, the President of the
Republic is freed from the letter of the constitution, and takes the liberty to
propose legislation. He thus spills over onto the role of government, and takes on
important powers, often decried as stronger than those of his counterparts.

Both candidates hope to find themselves in this situation, given that the quasi-totality
of their propositions come under prerogatives that are not those of the President. This
should not pose any major problems if the winner of the presidential is backed up by
a majority in the Assembly: he will have every latitude to apply his program.

However, in the contrary case, Emmanuel Macron or Marine Le Pen would find themselves
in a situation of cohabitation. This has happened three times since the beginnings of the V th
Republic (1986-1988, 1993-1995, 1997-2002). In all three cases, the President of the Republic
appointed a Prime Minister of the same political stripe as the majority in the Assembly,
even though there was no Constitutional necessity to doing so. Why? Because if the
Head of State names a Prime Minister not from the Parliamentary majority,  the Assembly
might well bring down the government.

Thus, while Jacques Chirac, a President from the political Right, held the Élysée between
1997 and 2002, it is the policies of the Socialist Party that were applied for five years by
the government of Lionel Jospin. In this configuration, the elected candidate of May 7
would be forced to follow the Constitution, and the implementation of his program would be
severely compromised.

CONCRETELY, WHAT COULD MACRON OR LE PEN HOPE TO ACCOMPLISH WITHOUT A MAJORITY?

Naming a cohabitation government wouldn't make thing much better. Pensions, Unemployment-
Insurance, Education, Taxation, Immigration and the conditions to nationality, Business Taxes,
Public Employment, Penal sanctions, Labor Law, National Defence... All these themes are of
legal domain and come under the power of Parliament, and of the government which issues from
it. Even Emmanuel Macron's notion of 'governing through decree' would not permit the
application of his program: only the government can publish decrees, and only with the
approval of Parliament. the only freedom of the President is to sign, or not, deciding on implementation. He can block legislation if he so desires.

There is an article of the Constitution that would allow the candidate elected on May 7 to act in
conformity with his beliefs, even in a case of cohabitation: article 11. It would permit the President
to apply his program with respect to reform of the Constitution or Foreign Policy.

REFORMING THE CONSTITUTION

The text allows for a procedure for reform (article 89) which involves a vote
in the Parliamentary Assemblies. But article 11 authorizes the Head of State to
pass laws through referendum, without going through Parliament. Using this to
reform the Constitution is possible, but never successfully used . Only General de Gaulle
used it in this spirit,  to then be criticized for 'distorting the text', and resigning after
a 'no' on his 1969 referendum.

Marine Le Pen could propose her Constitutional reforms through this route. Moreover,
since she intends to make referendums possible for all laws, she could use this to push through
certain mesures of her program. This has never been accomplished since the beginnings of the
V th Republic (other than on institutional reform). The situation would be all the more novel, and
the results uncertain, that the government of the day could be in opposition.

ON INTERNATIONAL PREROGATIVES

We are left with Foreign Policy, where the President could apply his policies in perfect
accord with the constitution. He names Ambassadors, negotiates treaties, and - thanks
to article 11 - can have these ratified without the approval of Parliament. Thus could
Emmanuel Macron enable his ideas on reforming the European Union. It is equally in
this manner that Marine Le Pen could achieve her primary objective: negotiate and see
ratified leaving the European Union.

But if the Parliamentary majority supporting a President will most likely endorse his reforms,
a plebiscite by referendum is less likely to be automatically approved. Governing by referendum
would present a major risk for a President of the Republic: being disavowed by the electorate
mid-mandate.