“I ask the French to elect me Prime Minister”. By this astonishing formula, Jean-Luc Mélenchon launched the campaign for the legislative elections on Tuesday, April 19, even before the verdict of the second round of the presidential election. More than ever, the idea that the election of deputies would represent a “third round” seduced the opposition. The president of the National Rally, Jordan Bardella, mentioned it on Sunday evening, barely recognized the defeat of Marine Le Pen, without however going so far as to imagine his candidate for Matignon.
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The election of a majority opposed to the President of the Republic has become improbable since presidential and legislative elections are systematically held a few weeks apart. But the distrust of Emmanuel Macron seems to push the opposition to believe in it and invites us to delve into the memories of previous cohabitations. If they won the legislative elections, could Jean-Luc Mélenchon or Marine Le Pen really apply their presidential program under the eyes of a powerless Emmanuel Macron?
For this, it would already be necessary for the leader of the “Rebellious” or the boss of the RN to access Matignon. The Constitution is clear: it is the president who appoints the head of government. Ministers are also appointed by the Head of State, on the proposal of the Prime Minister: it is not for nothing that their names are announced on the steps of the Elysée. But in practice, Emmanuel Macron will have no means of imposing his choice, explains to franceinfo Dominique Rousseau, professor of public law at the University of Paris 1 Panthéon-Sorbonne: “Article 49 of the Constitution specifies that the Prime Minister must have the confidence of Parliament. If he (Emmanuel Macron) appoints Richard Ferrand, for example, the latter would be immediately overthrown by the National Assembly”via a motion of censure.
In the past, no president deprived of a majority in the National Assembly has attempted such a maneuver. “There may be discussions on certain ministries, we know that was the case between Mitterrand and Chirac”recalls the constitutionalist. “But it all depends on the relationship between the president and the prime minister. If it was Jean-Luc Mélenchon or Marine Le Pen, I guess they wouldn’t give Emmanuel Macron any gift”.
Once at Matignon, Jean-Luc Mélenchon or Marine Le Pen would have most of the power in their hands. “If Jean-Luc Mélenchon is elected Prime Minister, he can sign decrees to freeze prices, to increase the minimum wage”, notably dangled the Insoumis Manuel Bompard on CNews, Sunday. It’s true: the president cannot prevent the prime minister and the government from governing, by laws or decrees. They could thus relate to the establishment of the retirement at 60 years promised by Jean-Luc Mélenchon or the reduction of VAT on fuels.
Dominique Rousseau recalls that between 1997 and 2002, “Chirac could not prevent the 35 hours, Pacs or universal health coverage”. In 1986, François Mitterrand had refused to sign certain ordinances taken by Jacques Chirac, then Prime Minister, but he had only slowed down the action of the government: “Chirac had transformed his ordinances into laws, which had been adopted, and Mitterrand had to promulgate them”. For a law to apply, it must indeed be promulgated by the Head of State, but if he refused to do so, “he could be the subject of a dismissal procedure, for serious breach of his charge”believes the constitutionalist.
Marine Le Pen like Jean-Luc Mélenchon would however quickly face a critical obstacle: the difficulty of modifying the Constitution. Yet central measures of their programs depend on it. Marine Le Pen aims to modify it via a referendum to include the national priority and to allow “to stop uncontrolled immigration”. The candidate of La France insoumise, he even wants to convene a constituent assembly to rewrite it and set up a Sixth Republic.
If they had been elected presidents, Marine Le Pen and Jean-Luc Mélenchon planned to do this by using article 11, which allows certain bills to be submitted to referendum. Problem: most constitutionalists agree that using this article for a review would be censored by the Constitutional Council. The use of article 11 is also one of the rare cases in which the president can put a spoke in the wheels of the Prime Minister: “Emmanuel Macron could either oppose it or seize the Constitutional Council which, in all likelihood, would declare it unconstitutional” this maneuver, judge Dominique Rousseau.
The classic way of revising the Constitution is Article 89. But it requires the bill to be adopted in identical terms by the National Assembly and the Senate. Even in the event of cohabitation, the Senate would remain controlled by the right and a change of majority within five years would be very unlikely. Faced with these impasses, the Sixth Republic desired by Jean-Luc Mélenchon and the referendum on immigration desired by Marine Le Pen seem doomed. Just like the establishment of the citizens’ initiative referendum (RIC), proposed by the two candidates.
In this scenario, the President of the Republic would retain a weapon: the dissolution of the National Assembly. A power that he is the only one to hold: if he must first consult the Prime Minister and the presidents of the two chambers of Parliament, he is not forced to follow their advice. If Emmanuel Macron, faced with a victory for the opposition in the legislative elections, refused to appoint Marine Le Pen or Jean-Luc Mélenchon to Matignon, “he could take the country to witness, dissolve the Assembly and try to obtain a majority favorable to him”, explains Dominique Rousseau. It would also be a possible recourse against a law that he would absolutely like to prevent. But this option has limits: if the French renewed their choice, “he would be obliged to submit to it or to resign” by resigning, summarizes the constitutionalist. Especially since it is impossible to call repeated elections: the Assembly can only be dissolved once a year.
A victory for the opposition in the legislative elections would not, however, send Emmanuel Macron into the shadows. “He would retain the power of speech and nothing would prevent him from using it to denounce government policy”, explains Dominique Rousseau. Between 1986 and 1988, François Mitterrand had not spared his criticisms, thus preparing his future re-election.
The dissenting voice of the Elysée could particularly handicap Jean-Luc Mélenchon or Marine Le Pen on international subjects, for which they have radically different visions from that of the president. “One could imagine that he would give very critical press conferences, for example if the Prime Minister adopted a benevolent attitude towards Putin”, explains the specialist in constitutional law. If the unlikely scenario of cohabitation materializes, it could well be the most stormy of the Fifth Republic.