Emmanuel Macron and his government will have to deal with a relative majority in the Assembly. After the results of the legislative elections, nearly forty deputies are missing from the presidential camp to have a free hand and get its laws passed. But even without an absolute majority, the executive has some advantages in its game to govern.
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A coalition agreement: unlikely as it stands
“It will be necessary to clarify in the coming days the part of cooperation that the formations of the National Assembly are ready to take, declared Emmanuel Macron in his speech on Wednesday evening. If he ruled out the idea of a government of national unity, he thus left the door open to a government agreement. Like Germany, where the political formations manage to set up broad coalition agreements, the government could find a solution by opening its doors to other parties, and thus obtain a stable majority in the Hemicycle .
And it is to the right that eyes turn first. “We will naturally work with Les Républicains”, admitted Thursday on LCI Elisabeth Borne, while ensuring that she could work with everyone. For the moment, LR is rejecting any idea of a grand coalition. “There is no question of a pact, or a coalition, or an agreement of any kind whatsoever”repeated the boss of LR, Christian Jacob. “There can be no blank check, moreover on an unclear project”added the new president of the LR group, Olivier Marleix, in reaction to the comments of Emmanuel Macron.
Case-by-case compromises: the preferred scenario
If a coalition agreement seems for the moment ruled out, the government does not give up finding agreements on a case-by-case basis according to the texts to avoid institutional blockage. On LCI, Elisabeth Borne said to herself “very confident” on the fact of “find deputies to vote on texts because we have integrated their proposals”. For this, the Elysée and Matignon have been making numerous phone calls since the beginning of the week and are increasing consultations with the various political forces. Objective: to find the forty parliamentarians who would ensure a majority.
Beyond individual poaching, the majority would like to rely on the constitution of two “floating groups” in the Assembly, as reported The Parisian, one on its left wing and the other on its right wing. The objective is to ensure the presence of benevolent groups to allow texts to be passed on a case-by-case basis. The head of government does not rule out finding larger majorities on certain texts either. “with the Republican parties”. It therefore opened the door to certain compromises on the part of the government, taking the example of the text on purchasing power. “We can listen to proposals, I heard in the Republican program the tax exemption for overtime…” declared the Prime Minister on LCI.
Decrees: an indispensable weapon
The government can act without passing a law. The Constitution gives him the power to act by decree, in the “matters other than those which are within the domain of the law” defined in its article 34. That is to say that the government can do without a vote of Parliament to legislate. But this procedure cannot be applied in all areas. For example, laws concerning the organization of elections, the preservation of the environment or the property regime cannot be modified by decree. But for everything in the regulatory domain (i.e. everything that is not in the domain of the law according to article 37), the Constitution provides that the laws “may be modified by decrees taken after consulting the Council of State”. And these decrees do not need to be validated by Parliament. “This relative majority could remind the executive that it can move forward without parliament in certain areas”, explains Anne Levade, constitutional expert and professor at the University of Paris1 Panthéon-Sorbonne. One problem, however: laws are superior to decrees in the hierarchy of norms, ie a decree cannot contradict a law. And that, therefore, a decree cannot modify the law: only a new law can modify an existing law.
On certain subjects, Emmanuel Macron could thus move forward by decrees, without having to ask Parliament to modify the law. Governing by decree would therefore be constitutionally possible, but “Politically, it would not go unnoticed. And then, it will not replace the prescriptions”comments Anne Levade.
Ordinances: impossible without an absolute majority or a coalition
Article 38 of the Constitution allows the government to have recourse to ordinances, that is to say to set up its program without going through the usual legislative process. “The government may (…) ask Parliament for authorization to take by ordinance, for a limited period, measures which are normally within the domain of the law”, says the Constitution. For this, the government must get Parliament to pass a so-called “enabling” law. The executive is then authorized to take measures on specific subjects and for a defined period, without going through Parliament.
“The ordinances are taken in the Council of Ministers after consulting the Council of State”, provides for the Constitution. Once signed by the Head of State, they enter into force. However, if a ratification bill “is not tabled before Parliament before the date fixed by the enabling law”, recalls the Constitution, the ordinance no longer applies. Parliament therefore has the last word.
For Emmanuel Macron and his government, legislating by ordinances promises to be complicated, if not impossible. The oppositions denounced the use of ordinances during the previous five-year term, because this practice diminishes the role of Parliament. Deprived of an absolute majority, the government of Emmanuel Macron will therefore have the greatest difficulty in passing an enabling law allowing it to legislate by decree.
The referendum: a double-edged sword
In case of disagreement with the Parliament, it is possible to appeal to the people. The referendum can be used for the adoption of a “bill relating to the organization of public powers, to reforms relating to the economic, social or environmental policy of the nation and to the public services which contribute thereto, or tending to authorize the ratification of a treaty which, without being contrary to the Constitution, would affect the functioning of the institutions”, explains article 11 of the Constitution. The government must then make a declaration before each assembly, followed by a debate.
“We can very well imagine that Emmanuel Macron will pass the law on purchasing power by referendum”, explains to AFP Dominique Rousseau, professor of constitutional law at the University Paris1 Panthéon-Sorbonne. But this solution to circumvent Parliament may turn out to be “a double-edged weapon”voters do not necessarily approve of this way of snubbing their elected officials.
The use of 49.3: a risky bet
This is a controversial article of the Constitution. Under the five-year term of François Hollande, the passage in force of the Labor law had led to demonstrations throughout France. But what does 49 paragraph 3 provide? This article allows the Prime Minister “to engage the responsibility of the government before the National Assembly” on a bill. The latter is adopted “unless a motion of censure is passed within twenty-four hours”, explains the Constitution. It is possible to use 49.3 for a finance bill, for a finance bill on Social Security, and for another bill or another bill, only once per parliamentary session.
Concretely, article 49.3 allows a government to force through a text of law, in exchange for the risk of being overthrown. That is to say that the government bill is adopted without a vote in Parliament, nor the possibility of submitting amendments to a vote. But the Prime Minister engages his responsibility and that of his government on this text. If a motion of censure is adopted by the opposition, the government is forced to resign.
Given the current composition of the Hemicycle, in the event of 49.3, the opposition would be able to table a motion of censure, since it is enough to collect the signature of one tenth of the deputies, i.e. 58, to trigger this procedure . And then, during the vote, if the oppositions come together, they would have the capacity to reach the 289 votes necessary to overthrow the government. Resorting to 49.3 would therefore be a very risky bet. However, it would not be the first time that a government with a relative majority has used it. Between 1988 and 1991, the Prime Minister, Michel Rocard, did not have an absolute majority, which did not prevent him from having recourse to 49.3 on 28 occasions (its use was not limited as today) . But at the time, only 14 majority seats were missing.
The use of blocked voting: counter-productive
“If the government requests it, the Assembly referred to it decides by a single vote on all or part of the text under discussion, retaining only the amendments proposed or accepted by the government.” To speed up legislative work, the government can ask Parliament to have recourse to paragraph 3 of article 44 of the Constitution. This allows the government to override the amendments tabled by the opposition, but also by its majority. Only the government version is put to the vote.
This process is called blocked voting. It allows the government to save time and pass its bills more quickly, particularly in the event of parliamentary filibuster, that is, amendments tabled en masse by the opposition to slow down the legislative process. However, unlike 49.3, amendments are still discussed after the vote. The blocked vote does not put an end to the debates in the National Assembly. Members can still take the floor to express their disagreement, but can no longer put their amendments to the vote.
If blocked voting is a useful tool for governments with an absolute majority, it is counterproductive in case of a relative majority. Emmanuel Macron’s government will have to convince deputies outside its majority to vote on its bills in order to be able to apply its program. Forced passage of laws is no longer an option for the government.