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HomeLaw & LibertyFrance's Empowered Executive – Jordan T. Cash

France’s Empowered Executive – Jordan T. Cash

Since taking office in 2017, French President Emmanuel Macron’s policies have frequently been met with large protests. Recently, these protests reached a fever pitch with the enactment of a pension reform bill that, among other things, raised France’s retirement age from 62 to 64. While the recent protests have focused on the policy itself, the manner in which it was enacted raises broader questions about the separation of powers. Particularly, what are the proper roles of executives and legislatures in modern democratic societies? It is a question that is equally applicable to the American constitutional system, and Americans would be wise to learn from Macron’s experience.

In enacting the pension bill, Macron and French Prime Minister Élisabeth Borne—a member of Macron’s Renaissance Party—relied on Article 49, Clause 3 of the French constitution. Often referred to simply as “49.3” and sometimes described as a “nuclear legislative weapon,” this clause states that:

The Prime Minister may, after deliberation by the Council of Ministers, make the passing of a Finance Bill or Social Security Financing Bill an issue of a vote of confidence before the National Assembly. In that event, the Bill shall be considered passed unless a resolution of no-confidence, tabled within the subsequent twenty-four hours. 

In other words, the government not only writes the legislation, but enacts it without a vote in the National Assembly. Following such an action, the Assembly may call for a confidence vote which, if successful, would reject the bill as well as bring down the government and potentially force a new round of elections. 

The invocation of 49.3 is by no means unprecedented. Since the creation of the French Fifth Republic in 1958, French executives have invoked 49.3 ninety-two times, and Parliament has never successfully passed a vote of no confidence in response to an invocation of 49.3. Yet the rate at which Macron has invoked the clause is unusual. Since Macron appointed Borne as prime minister in May 2022, the government has invoked 49.3 eleven times—a rate of slightly less than once a month—and survived several no-confidence votes, including in response to the retirement age bill. 

Strictly speaking, the invocation of 49.3 is made by the prime minister, but it is the president who remains the ultimate decision-maker. As described by the French legal scholar Pierre Avril, the prime minister’s subordination to the president is “one of the principal constitutional conventions on which the operation of the Fifth Republic depends.” In allowing the president a tool by which he may circumvent Parliament, the French constitution grants the executive a substantial amount of power that conflicts with traditional notions of democratic sovereignty, whereby the executive’s primary duty is, in the words of the American constitution, to “take care that the laws be faithfully executed.”

Opponents of Macron’s pension bill have reacted to his use of 49.3 on this basis. Charles de Courson, a longtime independent member of the National Assembly, called it a “denial of democracy,” and other opponents have decried the president’s “anti-democratic” actions.

Looked at institutionally, these different reactions to the use of 49.3 are unsurprising and reflect an ongoing debate about the proper relationship between the different branches of government. Yet it is important to consider how this fundamental debate is grounded in the different institutional characteristics the branches are meant to bring to the governmental system. 

In 1958, when the French constitution was written, the inclusion of 49.3 was understandable given the need to provide the energy and stability that had been lacking in the French Fourth Republic. But its use, especially frequent use, comes at the cost of other institutional goods. 

As famously described by Alexander Hamilton in The Federalist Papers, executives are situated to bring not only energy, but also stability and a long-term vision to the government. In this respect, Macron’s actions, despite being structured by a different constitutional system, are what we would expect from a Hamiltonian executive. Seeing that the measure would not pass a divided Parliament where his party has a plurality, but not a majority, Macron decided to circumvent regular legislative deliberation and enact the measure unilaterally. Moreover, Macron’s defense of the unpopular bill as “needed” and gradually “producing more wealth for the whole nation” reflects Hamilton’s argument in Federalist 71 that the executive may need to push back on the people when “the interests of the people are at variance with their inclinations … in order to give them time and opportunity for more cool and sedate reflection.” 

Legislatures, by contrast, are meant to be slow and deliberative. As Hamilton also reminds us in Federalist 70, “In the legislature, promptitude of decision is oftener an evil than a benefit.” Legislatures are also more representative, allowing for conflicting factions and interests to have a venue for expressing their wants, needs, and concerns as well as the opportunity to craft legislation addressing their demands. Again, Hamilton notes this by pointing out that “The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans”—such as a pension reform—“yet often promote deliberation and circumspection; and serve to check excesses in the majority.” 

It is these differences in institutional characteristics that allow for a government to be simultaneously efficient and carefully deliberative, crafting policy that is both national in scope and responsive to local or regional interests. In 1958, when the French constitution was written, the inclusion of 49.3 was understandable given the need to provide the energy and stability that had been lacking in the French Fourth Republic. But its use, especially frequent use, comes at the cost of other institutional goods. 

The French and American executives are structured in such a way that they will naturally want to push through measures without dealing with the raucous factionalism of legislative bodies. But to cut the legislature out of the process entirely deprives the people of the deliberation of their elected representatives. Some commentators have viewed the recent protests as yet another example of the “unseemly” French tendency to take to the streets, but the protests do raise a legitimate point about separation of powers and constitutional construction. Which should be prioritized: executive energy and efficiency or legislative deliberation and representation? It is a question that Americans should keep in mind as they look at their own constitutional system. Since the Progressive era, it has become common practice for scholars, commentators, and politicians to remark on the slowness and inefficiencies of the American system. The remedy for this perceived dysfunction has typically been to empower the executive branch. In his early academic writings, Woodrow Wilson sought to break down the American constitution’s separation of powers in an effort to “think less of checks and balances and more of coordinated power, less of separation of functions and more of synthesis of action.” One of his proposals to do that would have been to allow cabinet secretaries to sit in Congress and be able to propose legislation so as to “constitute a link between the legislative and executive branches.”

Modern political scientists have made similar proposals. For example, William Howell and Terry Moe argue in their recent books that many of the major problems of contemporary American politics can be traced back to the ineffective system created by the constitution. In their view, the only solution is to change the constitution to create a more effective government “put[ting] the president at the helm” and sending Congress “to the back seat, where it belongs.” One of the major changes Howell and Moe propose is to grant the president a far greater role in the legislative process, specifically by giving him: 

[P]ermanent fast-track authority over all policy matters. The president would propose. Congress would decide, up or down. Both would participate in the policy process—but the balance of power would shift in the president’s direction, and presidential leadership would be unleashed to play a far greater role in promoting coherent, effective policy outcomes for the nation.

The goal, according to Howell and Moe, is not to create an imperial presidency, but to make Congress “less central to the policy process and the president more central. Presidential leadership and the qualities it promotes would thus be assigned a much more prominent role in American government.”

While such a reform may have the desired effect of making the American government more efficient and effective, the backlash to Macron’s embrace of 49.3 should give Americans pause. Although Howell and Moe’s proposal is not as expansive as 49.3, it would still elevate the president to a more commanding position and considerably lessen the influence of congressional deliberation on the formation of public policy.

Of course, one might contend that constitutionalizing such a privileged position is preferable to what is happening now. Recent presidents have relied heavily on unilateral executive actions, rather than engaging Congress, and this has contributed to the very instability the Founders warned about and sought to avoid with the creation of a strong executive. Indeed, James Madison’s complaint that the states under the Articles of Confederation “daily see laws repealed or superseded, before any trial can have been made of their merits” could be applied to executive orders, which are implemented by one president, repealed and replaced by the next, and repealed and replaced once again by his successor. The veritable ping-pong match played by the Obama, Trump, and Biden administrations over the Paris Climate Accords is just one example of this problem. 

There is a reason why the Founders believed that legislative authority naturally predominated in republican governments, and that was because in those governments based on popular sovereignty, it is the legislatures which most clearly represented the people. Although presidents are often viewed now as the only truly national representative in government, the American system actually allows for several different political majorities to be represented at any given time. Through the Electoral College, the president typically represents a majority of both the national popular vote and the majority of the states; the Senate represents a majority of the states; and the House represents the people generally, albeit divided into districts. Moreover, as these institutions are elected at different times for different terms, there are different temporal political majorities. This is clearest in the Senate, where one-third of the senators are elected every two years, meaning that the Senate represents the popular will of the states as it was expressed in three different elections. Currently, those of 2018, 2020, and 2022. 

The solution to legislative dysfunction is not executive empowerment. Those who care about constitutional government should think through how Congress can be reinvigorated, not how it can be emasculated.

The French system is similarly constructed. The French president is directly elected by a national plebiscite representing a national majority. The Assembly, which is elected a few months after the president, also represents the nation but through single-member districts and, being at a different time, provides different temporal representation. The French Senate, which is indirectly elected by local councilors, is on a different election schedule altogether. Serving six-year terms with half of the chamber elected every three years, they represent local interests and provide indirect snapshots of the popular will distinct from those of the president and Assembly. 

Thus, in addition to bringing different institutional characteristics to bear on the proper functioning of government, separation of powers also allows for overlapping popular majorities in an effort to ensure that actions undertaken are truly representative of what the people want. That it makes change difficult is a feature, not a bug of the system. 

Of course, one might argue that given the general unwillingness—or inability—of many members of Congress to seriously engage with major policy problems—or work with their own colleagues—it is completely understandable that scholars and voters alike would turn to empowering the executive for its promise of greater efficiency. Such a cure, however, is worse than the disease. When Congress abdicates its responsibilities, presidents will naturally seek to fill the void. But gains in efficiency do not necessarily represent a healthy democratic government. The solution to legislative dysfunction is not executive empowerment. Those who care about constitutional government should think through how Congress can be reinvigorated, not how it can be emasculated.

This is the lesson Americans should learn from the French experience. Macron is likely right that his pension reforms are needed for France’s long-term fiscal health, but enacting those reforms unilaterally over the will of the legislature sacrifices democratic deliberation upon the altar of government efficiency, and the French people are now making it clear that they are not willing to endure the results of such a sacrifice.

Yet, as Macron and the French Constitutional Council have made clear, such actions are allowed under the French constitution. But the American constitution does not enable the president to circumvent Congress in the same way. Although the American constitution creates a powerful presidency and enables a certain degree of unilateralism, the degree to which executive orders and agreements have come to be used as tools of policymaking raises significant questions about Congress’ proper role in the constitutional system. The American founders sought to position the branches of government so that their diverse attributes would come into conflict and, out of that struggle, produce policy that served the common good. While there is always give-and-take in such a system, actively privileging one branch over the others necessarily disrupts this balance. 

As France undergoes significant political and social upheaval due to the aggressive—but constitutional—actions of their chief executive, Americans should take note and learn from the difficult experience of their oldest ally and seek to reestablish and maintain the proper arrangement of their separation of powers system.



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