Sometimes we are right to scream before we feel pain. In recent weeks, the leaders of the Republicans have awaited with perplexity the decision of the Constitutional Council on their request for a shared initiative referendum (RIP) on immigration. “They are capable of anything,” joked the boss of LR deputies Olivier Marleix. “Anything can happen since this institution does not respect the Constitution,” echoed his counterpart in the Senate Bruno Retailleau. The right has the partial censorship of “its” immigration law in its throat in January? Here she is forced to swallow a new snake. More like an anaconda. This Thursday, April 11, the Sages rejected the first article of his bill – and did not even examine the other four – which provided for subordinating “the benefit of social benefits” to a condition of residence in France of a duration of at least five years for legally resident foreigners who do not work. The procedure was stillborn.
The devil is in the details. This measure was not rejected for procedural reasons, but for “disproportionate infringement” of social protection rights. Enough is enough. The right unleashes nuclear fire against the Constitutional Council, accused of restraining the legislator. “He refuses the French people to decide on immigration, he exceeds his role,” denounces Bruno Retailleau. “The Constitutional Council is once again responding to the government’s order. The scandal continues. A small caste has confiscated democracy!” denounces LR boss Eric Ciotti on the fundamental norm.
Political resentment
This failure continues a first slap in the face delivered by the Constitutional Council, the reason for this RIP. In January, the Sages removed the LR additions from the immigration law for procedural reasons. All with the benevolence of the executive, which had implored the institution to clean up the law. The right already only had eyes to cry and the media to scream. Like a sense of deja vu.
This episode fueled resentment against the institution. On the right, the votes of the nine Sages are being circulated secretly in January. The partial censorship of the immigration law would have only passed by one vote, with a schism between politicians and lawyers within the institution. We mock Alain Juppé, who privately denounced amendments “not subject to prior analysis by the Council of State” and a bad “way of making the law”. “The members of the Council have a past, they have convictions,” confides LR number 3 Annie Genevard. “Are we sure that they are ignoring everything they have defended in their political life?”
Anger rises. But a “political” reading of these flights of fancy would be reductive. They illustrate a profound movement on the right: a growing challenge to the jurisprudence of the Constitutional Council – like those of European courts – in the name of popular sovereignty. In matters of immigration and security, the Sages are accused of judging by opportunity more than by law. To obstruct public action under the pretext of protecting individual rights. To fuel a conflict between democracy and the rule of law.
Old reviews
“Even though it denies it, the Constitutional Council is not far from substituting its assessment for that of the legislator”, writes the former deputy for Yonne Guillaume Larrivé in his book The Unfinished Revolution (Editions de l’Observatoire, 2021). In his work, the State Councilor is surprised by the invention of a principle of “fraternity” in 2018, shaking up the crime of solidarity. Or the censorship in 2020 of the security law against ex-terrorist detainees. Bruno Retailleau finally could not digest the censorship of an article of the law on separatism conditioning the granting of a residence permit to the respect by a foreigner of the “principles of the Republic”. In the eyes of the right, the Constitutional Council’s file is full.
This revolt is not new. In 1993, Interior Minister Charles Pasqua questioned the institution after the partial censorship of its immigration law. “If this continues […]we will be able to close the National Assembly and the Senate”, said the boss of Beauvau ironically at the time. In response, Prime Minister Edouard Balladur implemented a constitutional revision to allow the adoption of the disputed text. After the rejection partial of a law on judicial security detention, Nicolas Sarkozy called the Court of Cassation for help in 2008 to circumvent the decision. In vain.
Birth of a political offer
This movement, however, has changed in nature. From a knee-jerk reaction after the censorship of this or that law, the criticism of the jurisprudence of the Sages has gained ideological depth. And is now turning into a political offer. On the right, the Constitution has become an obstacle. It hinders, but does not protect. The planned revisions of our supreme text serve less to strengthen it than to circumvent its guardian. A constitutional law proposal defended by LR this fall aimed to include migration quotas to avoid a rejection of a law in the name of the right to family reunification. “Constitutional law is our identity. Jurisprudence is the fruit of human intelligence. It does not have the same value!”, assured Valérie Pécresse to L’Express in 2022, which carried this measure during the presidential election.
This speech illustrates an intuition – shared by some close to the Head of State. The feeling of dispossession of the French would be the key to the next presidential election. This dispossession would be “identity” in light of demographic upheavals. But also “democratic”, given the supposed impotence of the legislator. The criticism of the Constitutional Council materializes this statement. Thus Laurent Wauquiez called for a “Coup d’Etat de droit” after the rejection of the immigration law in January and proposed that Parliament could have the last word after a decision by the Constitutional Council. LR’s putative candidate for 2027 places criticism of a weakened state at the heart of his political offer. He portrays the executive power as “Gulliver in chains”, dependent on the power of judges. “At one time, the judge trembled when he approached the perimeter of the general interest,” he confided to L’Express in April 2023. Now, he blows away a law like he blows his nose in the morning. The people’s conception sovereign becomes right-wing.”
“It doesn’t pay off electorally”
The State hampered by judges. Nine Sages eager to tie up the legislator. This little music does not gain consensus on the right. Xavier Bertrand claims “a deep disagreement” with Laurent Wauquiez “on the conception of the rule of law”. The boss of Hauts-de-France denounced in January the exit of his rival from the Constitutional Council. The mayor of Meaux Jean-François Copé then sent him an SMS to welcome his positioning. “This is not a right-wing government speech. What will we say if Le Pen is elected and the Council censors one of her laws?”, judges the former president of the UMP.
Internally, some voices question the political advisability of this offensive against rue de Montpensier. “It doesn’t pay off electorally, judges an LR executive. The guys who believe that the Council is made up of a bunch of businessmen are voting RN, and the others will turn away from us.” Opinion has hardened, and so has the right. This March 1, 2010, Nicolas Sarkozy gives a speech to the Sages. The Head of State defends the Priority Question of Constitutionality (QPC), a legal revolution introduced by the constitutional revision of 2008. The President addresses some warnings to the institution – it must not set itself up as a “counter-power political” – and recalls that “sovereignty belongs to the people”. Then calm things down. “A constitutional censorship resolves less a substantive question than a conflict of competence between the ordinary legislator and the constituent power. There is no need for drama.” LR decided otherwise.
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