Can the president of France really do everything? Almost all of the measures promised by the president-elect can only be delivered if he then obtains a majority in the Assemblée Nationale during the legislative elections in June.
What the Constitution says
The text is very clear on the division of powers. The government "determines and conducts the policy of the nation." Parliament votes on laws and can overturn the government. The president, on the other hand, is an "arbiter" who ensures the "regular functioning of public powers" and "the continuity of the State." They are a guarantor of "national independence, territorial integrity and respect for treaties." They are also the head of the armed forces and the only one who can authorize a nuclear strike.
According to the Constitution, it is therefore not the president who must decide the country's domestic policy. Their specific powers are, in fact, regulated:
- They are the guarantor of the Constitution and can therefore refer matters to the Conseil Constitutionnel (the Constitutional Council) if they believe that a law violates its principles (although since 1974 parliamentarians can also do this);
- They appoint the prime minister of their choice;
- They appoint three of the members of the Conseil Constitutionnel, including the president;
- They can assume exceptional powers in the event of a "serious and immediate" threat to the institutions, the independence of the nation, territorial integrity, or the execution of international commitments;
- They can dissolve the Assemblée Nationale;
- They can, at government or parliament's suggestion, submit a bill to a referendum on the basis of Article 11 (on a limited number of subjects).
All other prerogatives are subject to the prime minister's countersignature and, where relevant, that of responsible ministers. However, in the case of cohabitation [the system of divided government where a president is from a different political party to the majority in parliament] these people are not necessarily in the same political camp as the president.
Do presidents follow what the text says?
In most cases, these constitutional provisions end up being diluted in practice. When the president obtains a supporting majority in the Assemblée Nationale, they are less tied to following the Constitution to the letter and are able to propose legislation. In doing so, they then encroach on the role of government and in fact have significant power, often described as more substantial than that of heads of state in other countries.
Emmanuel Macron, re-elected president on April 24, hopes to be in this position, since almost all of his proposals fall under the authority of someone other than the president. This will not be a major problem if he is supported by a majority in the Assemblée: He will be free to implement his program.
However, if the opposite were to happen, M. Macron would find himself in a cohabitation situation. This has happened three times since the beginning of the Fifth Republic (1986-1988, 1993-1995, 1997-2002). In all three cases, the president appointed a prime minister from the same political camp as the Assemblée's majority, even though the Constitution does not oblige him to do so. Why? Because if he appoints a head of government who is not from the parliamentary majority, it risks pushing the Assemblée to overthrow the government with a motion of no-confidence.
So, while Jacques Chirac, a right-wing president, was in the Elysée Palace from 1997 to 2002, it was Socialist Party policies that were implemented for five years by Lionel Jospin's government.
In concrete terms, what could Macron do without a majority?
Even if this has never been done before, the new president could decide to ignore the parliamentary majority and appoint a government of his own political persuasion. But this would likely lead to a succession of government shuffles or dissolutions of the Assemblée. In other words, institutions would be paralysed. The newly-elected president would not be able to do much.
But even by appointing a cohabitation government, he would not have much more room to maneuver. Pensions, unemployment insurance, education, taxes, immigration and nationality requirements, corporate taxation, public employment, criminal sanctions, labor law, national defense: All of these are legislative issues and so fall into parliament's remit and the resultant government. Even the possibility of "government by decree" would not allow the president to implement his program: Only the government can issue decrees and only then with parliament's authorization. The president's only option is to sign them, or not, in order to decide whether they enter into force. This means that he can block, if he wishes, the decisions of a government that is opposed to him.
The president does have the power to appoint "civil and military jobs": prefects, state advisors, ambassadors, high-ranking education officials and civil service directors. These appointments, however, require the prime minister's countersignature or that of the ministers concerned, which is not a given in the event of cohabitation. The only exceptions are defense and foreign affairs, which are considered to be "areas reserved" for the president.
That leaves treaties, which are negotiated and ratified by the head of state. But Article 53 of the Constitution specifies that "peace treaties, trade treaties, treaties or agreements relating to international organization, those which incur state finance, those which modify provisions of a legislative nature, those which relate to the status of persons, those which involve the transfer, exchange or addition of territory, can only be ratified or approved by virtue of a law." In practice, around one third of the treaties and agreements concluded by France must be approved by Parliament in order to come into force.
What about calling a referendum on the basis of Article 11 of the Constitution?
This article gives the president the power to call a referendum so that citizens can decide on bills "concerning the organization of public authorities, on reforms relating to the nation's economic, social or environmental policy and to the public services that contribute to it," or to "authorize the ratification of a treaty which, although not contrary to the Constitution, would affect the functioning of institutions." This is how, for example, the ratification of the Maastricht Treaty was authorized in 1992 and the ratification of the Treaty establishing a Constitution for Europe was rejected in 2005.
This provision is also the basis on which Marine Le Pen wished to carry out constitutional reforms, on which a large part of her manifesto depends. The Constitution, however, incorporates a specific revision procedure (Article 89) that requires a vote from the parliamentary assemblies. Opting to use Article 11 for constitutional reform is a way of bypassing Parliament. It isn't impossible: General De Gaulle did it twice, in 1962 and in 1969, even if it did mean attracting criticism for having "twisted the spirit of the text."
The situation is, however, no longer the same as it was at the beginning of the Fifth Republic. The Conseil Constitutionnel has always refused to examine the constitutionality of a referendum bill once it has been passed, but since 2000, it has given itself the jurisdiction of judging the legality of a decree that submits a text for referendum.
In other words, if a matter is referred to the Conseil Constitutionnel, it can rule on whether calling a referendum complies with the Constitution or not – something it did not cover in General de Gaulle's era. There is broad agreement among jurists that a revision of the Constitution cannot be made on the basis of Article 11. It is therefore possible that, if the Conseil Constitutionnel were called upon to rule on the question, it would declare such a procedure unconstitutional.
Moreover, Article 11 provides that the president may call a referendum "on the proposal of the government (...) or on the joint proposal of the two assemblies." The situation where a president and a government disagree on the submission of a text for referendum has never come up and would make the use of Article 11 even more uncertain.
In addition, while the president's parliamentary majority usually supports his reforms, a referendum plebiscite is much less predictable. Governing by referendum would therefore present a major risk for the president: that of being directly disowned by voters during his term of office.