The Constitutional Council (CC) censored more than a third of the articles of the immigration law debated at the end of 2023, largely resulting from amendments tabled by Les Républicains (LR), under the pretext that they would be “legislative riders”, c ‘that is to say unrelated to the initial bill. For some, it would be a “coup d’état“or a”democratic hold-up“. For others, a satisfactory affirmation of the supremacy of law. Critic of the “government of judges” or apologist for the “mouth of the law”, each camp holds its position in this war which rages within our institutions. On closer inspection, however, this supposed “coup d’état” could only have taken place thanks to the complicity of other actors who all conspire to devalue Parliament, and ultimately to weaken the balance of powers. .
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The wording of thearticle 45 of our Constitution, which served as the main legal basis for this partial censorship, is particularly enlightening insofar as this article was the subject of a revision in 2008, the consequences of which are being felt today. Its first paragraph, “any bill or proposed law is examined successively in the two assemblies of Parliament with a view to the adoption of an identical text”, was in fact supplemented by the following sentence: “Without prejudice to the application of Articles 40 and 41, any amendment is admissible at first reading as long as it presents a link, even indirectwith the text deposited or transmitted.” (emphasis added).
However, this modification does not seem to have been understood in the same way by everyone, whether political leaders or jurists. In The Constitution (2022 edition), the constitutionalists Guy Carcassonne and Marc Guillaume believe that by this formulation, “the 2008 constituent reacted to what he considered to be the excessive rigor of the Constitutional Council. The latter showed itself to be more and more severe with regard to the additional articles (…). It is therefore to relax this rigor (…) that a new principle has now been established, according to which we will be satisfied with a link ‘even indirect’. which, without being totally unreasonable, satisfies parliamentarians.” The same interpretation seems to have been retained by Senator Bruno Retailleau, president of the LR group in the Senate, who commented in a tweet following the decision of the CC: “Why does Laurent Fabius refuse to apply the constitutional reform of 2008 which broadened the power of amendment of parliamentarians at first reading of a text, which allows articles to be voted on which have an indirect link with the object of the law? How dare we claim that there is no link between immigration and the crime of illegal residence or family reunification?” And in this case, this last remark makes good sense.
Arbitrary censorship
However, from 2008, other analyzes estimated on the contrary that the modification of article 45 would weaken the right of parliamentarians to amend! While the rapporteur of the text to the National Assembly, the UMP Jean-Luc Warsmann, had defended it, Jean-Jacques Hyest, also a member of the UMP and rapporteur of the text in the Senate, was opposed to it. The latter in fact feared, in practice, a restriction of the right of amendment. He considered that the constitutional jurisprudence of the time, well stabilized, authorized a more open interpretation and more favorable to the prerogatives of parliamentarians, since it admitted all amendments which were “not devoid of any link” with the object of the text examined. The right to amend was thus more widely guaranteed, according to him, by the case law of the CC than by Article 45 in its modified formula. He had the text amended in this sense, but the measure was then reintroduced during the shuttle and then adopted in Congress.
In fact, for several years, the CC has confirmed Hyest’s fears, making a increasingly strict reading of article 45, while the assemblies themselves, via the presidents of committees, apply constitutional jurisprudence more and more strictly. This is undoubtedly partly due to legislative inflation, the quantity of articles and amendments having exploded with the increase in the number of parliamentary groups or the lengthening of the duration of debates.
In this context, censorship based on Article 45 is not always understandable, when it does not seem arbitrary. As noted by Guy Carcassonne and Marc Guillaume, the Constitutional Council thus censored 36 riders in the law of January 27, 2017 relating to equality and citizenship which initially contained 41 articles and, after its adoption and before its examination in the Council, 224. The same happened with the censorship of 19 riders of the “Housing” law of November 23, 2018 which included 65 articles in the government’s initial draft and 234 at the end of the parliamentary procedure, or with the censorship of 25 riders in the law for the acceleration and simplification of public action which had increased from 50 to 175 articles.
Excessive presidentialization
For all these reasons, the decision rendered by the CC on the immigration law is not necessarily surprising. The government, for its part, well anticipated the attitude of the CC, since in its referral, it quite clearly invited the CC to rely on article 45, writing that it “refers to the wisdom of the CC regarding compliance by the legislator with the first paragraph of article 45 of the Constitution. In this context, either the Republicans have not taken the full measure of the evolution of jurisprudence, and find themselves trapped by a provision that they themselves have defended in the past, or the president of the Senate Law Committee allowed amendments to pass that would normally have been inadmissible, leaving the CC to do the work.
These observations suggest that our political regime is paying the price of excessive presidentialization, which in turn fuels the legalization of debates. It is not impossible to think that some of those who, within the right, defended the revision of article 45 in 2008, had the ambition of further establishing governmental power, which is never far away , in our country, presidential. But at the time, the right was in the majority and convinced of never being dethroned. In doing so, this revision did not so much offer more power to the executive as to the CC which, like any autonomous institution, seizes the possibilities granted to it. Now if it is excessive to claim that the judges of the CC are intentionally playing politics, it turns out that inevitably, by granting themselves the right to formally censor in this way articles of law relating to such a crucial subject that they do immigration in spite of themselves. As a result, the representative body par excellence, the one to which the people delegate their power, Parliament, remains voiceless, which fuels the impression, as well as the reality, of public powerlessness.
The whole current issue therefore lies in the rebalancing of powers in favor of Parliament. In this case, he suffers from two main handicaps. First, its intrinsic weakness vis-à-vis the executive. Law proposals initiated by parliamentarians, in a presidentialized Fifth Republic, are few in number and rarely come to fruition. Proposals for laws on immigration should see the light of day in the Senate based on the censored measures. But to be discussed, they will have to be included on the agenda, the latter actually depending on the government’s priorities.
Prevent the Sages from playing politics
Then, Parliament can be thwarted by the CC but it is not, in fact, thwarted by any other body. In recent decades, the rule of law in the strict sense, that is to say a State in which public power is subject to the rules of law, has been strengthened through the increase in control of constitutionality and conventionality. But this came at the expense of the national balance of power. However, this balance specific to liberal democracies, which organizes relations between the “people”, “power” and “law”, relates to the rule of law in the broad sense. As the philosopher Pierre-Henri Tavoillot explained in our pages, “democracy has three pillars: the people, the law and the State. They must remain in a situation of balance without one failing. takes precedence over the other two. When the law takes precedence over the other two, we obtain a nomocracy – this is what happens particularly at the European level. When it is the people, we end up with populism. When it “is the State, to illiberalism.”
Montesquieu is often cited, rightly, to praise counter-powers in general and that of law in particular: “It is an eternal experience that every man who has power is inclined to abuse it; he will until it finds limits. Who would say that! Virtue itself needs limits. So that power cannot be abused, it is necessary that, through the arrangement of things, power stops power.” This reasoning therefore applies just as much to the counter-powers whose importance is increasing, in this case for the CC, which does not always act as a counter-power but also as a new power, and for this reason deserves to be limited. More broadly, it is in the name of the rule of law in the broad sense that we must be able to regulate the rule of law in the strict sense.
To breathe new life into the law in practice, we could, as pertinently suggested in a report published by GenerationLibre, grant Parliament greater control of the agenda, which would allow parliamentarians’ legislative proposals to have a greater chance of being examined and adopted. As for the ascendancy of the CC, it would be necessary, since it is unprecedented in our history, to oppose a counter-power which remains to be invented, which, while preserving the recent and laudable advances of the rule of law, would prevent the Wise to engage in politics, despite themselves.
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