The Limits of Contemporary French Constitutionalism
On France's upcoming institutional instability and possible scenarios after the snap elections
French President Emmanuel Macron’s dissolution of France’s National Assembly (its lower house of parliament) on June 9th took many by surprise. The results of the snap election’s first round suggest that Macron’s risky gamble—an attempt at turning the tide after his party suffered a major blow in the European Parliament elections—backfired majestically: the far-right’s “National Rally” (NR) won 33% of the votes, followed by an alliance of left-wing parties, the “New Popular Front,” with 28%. Macron’s alliance, “Ensemble,” came in third with 21%, shattering all hopes of a majority in parliament.
However, more than a political setback for Macron, and outside of the many (highly warranted) concerns as to what harmful policies a new far-right-dominated parliament could pass, the move also raises many interesting constitutional law questions. Whatever the outcome of the second round on Sunday, July 7, France will face unprecedented circumstances that are likely to put the country’s 1958 constitution to the test. Current poll projections suggest that two main scenarios could materialize, raising distinct concerns: 1) one where the National Rally wins an absolute majority and can form a cabinet, which would, counter-intuitively, prove perhaps less unpredictable, though it would pave the way for a possibly major institutional showdown, and 2) a more likely one, where the election leads to a hung parliament, which would bring about the most uncertainty and could add a major institutional crisis to the political one.
The cohabitation scenario
For an opposition party to win a majority in the National Assembly and form a cabinet opposed to the President is not unheard of in France, it even has a name: “cohabitation.” It occurred on three occasions: from 1986 to 1988 and 1993 to 1995, under left-wing President François Mitterrand, and 1997 to 2002 under right-wing President Jacques Chirac. Not anticipated by the drafters of the 1958 constitution, these situations created many tensions, so much so that a constitutional referendum in 2000 aimed, in large part, at preventing it in the future by aligning the Presidential and parliament terms and election calendars—a major step in the “Presidentialization” of the regime, a controversial evolution which has diminished the role of the Prime Minister and downgraded parliament as a mere executor of the President’s will.
As such, from a constitutional viewpoint, and ignoring the risks posed by the National Rally’s populist agenda, a return of the forgotten “cohabitation” could have the virtue of bringing out the parliamentary roots of the 5th Republic, but with uncertain consequences.
Forming a far-right cabinet
If the National Rally earns an absolute majority on July 7th, it would be entitled to demand that Emmanuel Macron appoint one of its members as Prime Minister—most likely the party’s president Jordan Bardella—although the constitution does not oblige the President to comply (see article 8, but more on this later). This would instantly reverse the balance of power in favor of the Prime Minister and parliament, dramatically curtailing Emmanuel Macron’s role.
This results from the 5th Republic’s unusual dual-executive structure and the fact that while it provides the President with critical missions, it does so in vague terms that make their interpretation largely contingent on political circumstances. For instance, Article 5, the key provision in this respect, tasks the President with ensuring “respect for the Constitution” and ensuring, “by his arbitration,” the “proper functioning of the public authorities and the continuity of the State.” The President must also be the “guarantor of national independence, territorial integrity and due respect for Treaties.”
In reality, only a handful of provisions grant the president straightforward and “autonomous” prerogatives: article 12 for the right to dissolve the National Assembly, article 17 for the right to grant pardons, article 56 for the right to appoint members of the Constitutional Council, and a few others.
By comparison, the Prime Minister and the cabinet are vested with more straightforward yet wide-ranging prerogatives: most notably, article 20 gives the cabinet the responsibility to “determine and conduct the policy of the Nation,” and, importantly, authority over the civil service and the armed forces.
While mostly irrelevant when the President and the Prime Minister belong to the same political family, as it has been the case since 2002, these subtilities become front and center of a power struggle between both heads of the executive in situations of cohabitation.
All in all, a cohabitation scenario leaves the President with two main categories of powers: an overall “special responsibility” over foreign affairs and defense matters, and an ability to interfere with the actions of the cabinet and parliament. Either way, the constitution provides no option to resolve potential clashes.
The President’s special prerogatives in foreign affairs and defense matters
The area of foreign affairs and defense is sometimes (wrongly) referred to as the “reserved domain” of the President, based on the fact that the President assumes the role of “Commander-in-Chief” of the armed forces and chairs its defense-related bodies on the one hand (art. 15), and is responsible for appointing ambassadors and accrediting foreign diplomats (art. 14), negotiating, signing, and ratifying treaties (art. 52), and ensuring their enforcement (art. 5) on the other. However, on all these matters, the President can hardly act by himself, let alone against the will of the Prime Minister and parliament.
On defense, for instance, article 20 states that it is the government that is in charge of the “armed forces”, while article 21 specifies that the Prime Minister is responsible for “national defense.” On this matter, the National Rally has already announced that it would refuse to recognize any exclusive prerogative to President Macron. The question is anything but theoretical given the major disagreements between the National Rally and President Macron on the military support to Ukraine, for instance.
As to foreign affairs, while the President decides ambassadors’ appointments and negotiates treaties, in practice it is the government that leads the foreign office administration and organizes the implementation of international law at the domestic level. In past instances of cohabitation, this resulted in France being represented in international fora by both the President and the Prime Minister. At the EU level, things would get even more complex since most of the decision-making takes place at a cabinet level, even though the President would still sit on meetings of the European Council. Given Emmanuel Macron and the National Rally’s widely different views, and growing polarization, this could easily lead to public clashes and cacophony.
Macron’s ability to stand in the way of a far-right cabinet
Even in purely domestic affairs, where the cabinet would generally have the undisputed upper hand, Emmanuel Macron would maintain, in many areas, the power to hinder, or at least stall, some of its decisions.
First, since it is formally the President who appoints the cabinet, he could object to the figures proposed by the Prime Minister. While it was accepted in past cohabitation that the President could have a say in the areas of defense and foreign affairs for the reasons mentioned above, the current context would make things much more complicated if Emmanuel Macron attempted to maintain or expand this practice.
Second, and perhaps even more significant, the President could delay the promulgation of acts of parliament, impose a new round of parliamentary debates (Art. 10), or systematically refer them to the Constitutional Council (Art. 61), possibly delaying their entry into force by several months. Similarly, because some regulatory acts decided by the cabinet require the President’s signature, as per article 13, Emmanuel Macron could—as François Mitterrand did in 1986—refuse to sign them altogether. Same for appointments of civil servants, military officers, and some heads of state-owned companies.
While such steps could, in the case of particularly controversial bills, regulatory proposals, and appointments constitute a welcome check on a far-right cabinet—and even a possibly necessary safety net—if they became systematic they could encourage the National Rally to look for ways around, including by bending the constitution. Generally, the competition within the executive branch could turn into a full-blown institutional standoff.
Still, from a constitutional perspective—again leaving aside political considerations of the National Rally’s platform—the cohabitation option has the merit of being somewhat less unpredictable than the increasingly likely scenario of a hung parliament.
The hung parliament scenario
In case the second round of the election does not bring any party close enough to an absolute majority, France would enter truly uncharted territory, making pretty much anything possible, for better or for worse.
A cohabitation with only a relative majority would prove challenging for the National Rally: it could struggle to implement its agenda and lose the support of its electorate. While it could attempt to force some bills through parliament by resorting to the infamous mechanism of Article 49.3—as Macron’s government has repeatedly since 2022—this would pose, every time, the risk of seeing the government fall in a vote of no confidence. This is why NR leaders have already announced they would decline to form a government without an absolute majority. What would happen then? Hypothetically, there are a few options, though all of them remain untested.
Recent polls suggest that no political group other than the far right would come close to achieving a relative majority comparable to that of NR. This means that any attempt at forming a non-NR government would either rely on a minority or a coalition, with all the uncertainty either option entails.
Given its poor performance, President Macron’s party stands no realistic chance of leading any effort at forming a government. While the left-wing alliance of the “New Popular Front” could attempt to form a government, it would be in an extremely precarious position: unable to deliver on most of its campaign promises—therefore annihilating any hope to perform well in the 2027 presidential election—it could easily fall in case of a vote of no-confidence. The only option would be for the left-wing block to form a political alliance with Macron’s MPs and right-wing moderates, a highly unlikely prospect given the animosity between both sides.
In such an impasse, and because the President would be barred from calling new elections for at least a year, the only avenue left would be that of forming some kind of caretaker cabinet or a “national unity government”.
The option of a political or technical “caretaker cabinet”
A strictly caretaker cabinet would be more “technical” and could be made out of apolitical technocratic figures—similar to the Monti government in Italy that served from November 2011 to April 2013. While perhaps the least controversial option in the short-run—and possibly critical to helping France navigate the upcoming Paris Olympics—it is hard to imagine how such a government could subsist for three years until the end of Macron’s term. As a result, such a caretaker cabinet would most likely only be a temporary option but with no clear end in sight: probably until new elections can be called again, possibly as soon as next year.
A similar but more political option would be that of a “national unity government,” another form of caretaker cabinet but less technocratic—this time more similar to the Draghi cabinet, again in Italy, in office from February 2021 to October 2022. Some political figures have recently hinted at such an option, with the idea of gathering “Republican forces” across the political spectrum but excluding the National Rally. However, the current political environment, the level of acrimony between political forces, the aggressive tone of the campaign, and the right’s likely hostility towards the idea of partnering with the far-left “France Unbound” makes it hard to imagine.
In any event, either option would be unprecedented in the 5th Republic, and it is unclear how long sufficient consensus could be maintained within an extremely fragmented National Assembly. With all eyes on the 2027 presidential election, many parties may also be tempted to opt out of such initiatives that could be seen as decreasing their chances then.
Furthermore, in either scenario, the cabinet’s weak political standing and precarious backing in the National Assembly would probably profit Emmanuel Macron who could invoke his constitutional prerogatives and his role as protector of the continuity and functioning of the State (Art. 5) to continue to run the country as he has so far, an attitude which would likely further antagonize parliament.
Overall, neither option sounds particularly promising, to say the least, and it seems only a matter of time before new elections need to be called in, with a high risk of yielding similar results.
The hardball scenario
One last possible scenario, but one that would only further the current crisis, would be for President Macron to maintain his current cabinet by taking advantage of the vague nature of the relevant constitutional provisions. Article 8 indeed only stipulates that the President appoints the Prime Minister but makes no indication as to the timeline nor how the President must make his choice. In practice, Emmanuel Macron could therefore either decline the government’s resignation, or accept its resignation but delay the appointment of a new Prime Minister, de facto maintaining the outgoing cabinet in place for as long as he wishes. The president could justify it by blaming parliament for failing to agree on a sustainable alternative. While it could be tolerated temporarily, possibly until the end of the summer, any attempt at maintaining the status quo longer than this would trigger a whole new crisis.
Previous practice and case-law suggest that such a cabinet would be limited to performing its day-to-day business (“affaires courantes”), though it would still be able to rule by executive orders (“décrets”) and internal ministerial “circulars.” Because the exact scope of day-to-day business has never been defined, Macron’s cabinet could also adopt a broad interpretation that could only be restricted in case of litigation before administrative courts. In any event, such a hardball approach would ultimately hit a wall when comes the time for parliament to vote on the budget, which would bring about yet another standoff and institutional crisis.
France’s uncertain institutional future, a cautionary tale
Whatever the outcome of the second round of the French snap election, the country seems to be entering uncharted territory that will most likely deliver a significant level of unpredictability and instability—reminiscent of the troubled end of the 3rd Republic, or of the 4th Republic, which, in just 12 years, saw 16 successive prime ministers, with cabinets lasting on average just over 6 months.
Though such a crisis would have been hard to predict just a few years ago, it is not completely surprising either given the past decades of practice that have betrayed the spirit of the 5th Republic, as well as Emmanuel Macron’s aggressive use of executive prerogatives since 2022 to circumvent a hostile parliament, which has further pushed France’s institutions to a breaking point.
Overall, the situation in France is also a cautionary tale about how quickly constitutional systems can show their limits and how scenarios that once seemed unthinkable can materialize suddenly and unexpectedly.
