French Constitution, Article 16, exceptional powers, President of France, separation of powers, Constitutional Council, democracy, emergency powers, Fifth Republic
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Abstract
The exceptional powers granted to the President of France under Article 16 of the Constitution, allowing the President to take measures to address a serious and immediate threat to the State.
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[...] What if the Assembly is already dissolved? In all logic, one must proceed with the elections as much as possible and the president must ensure the proper conduct of these legislative elections. Parliament continues to legislate and can repeal what the president has done. ? Parliament retains its right to remove the president, in accordance with Article 68 of the Constitution. [...]
[...] The decisions of the president that would be in art. 37C can be controlled by the administrative judge (CE d'Oriano). ? The Constitutional Council pronounces on the conditions for implementing article 16, on referral after 30 days or of its own accord after 60 days. Not legally binding, but politically symbolic. B - Parliament as a bulwark against presidential dictatorship ? The president encroaches on the powers of Parliament but not on Parliament itself. No dissolution, and automatic meeting (if Parliament is not in session). [...]
[...] B - A goal of restoring the status quo ante ? The measures taken are in a single and unique purpose: to restore the situation before the state of emergency. Theoretical limitation of the scope of measures that must go in this direction. ? The president has all powers, but exercises them only to succeed in putting an end to this situation. II. The exceptional powers of the president subject to the control of the judge and the Parliament A - The submission of the president to the administrative and constitutional judges ? [...]
[...] If the exercise of exceptional powers is a real attack on the separation of powers they are strictly regulated to ensure democracy (II). I. The President's exceptional powers as an infringement on the separation of powers to preserve democracy A - An interference of the executive power in the legislative domain ? The President of the Republic can take measures that belong to the government, but also to the legislature (CE Ruben de Servens). A true challenge to the separation of powers. [...]
[...] The 'exceptional powers' in question here are those of Article 16 of the 1958 Constitution. They have only been used once in history, from April 23 to September and give the President the power to take 'the measures required' by the circumstances of the article's triggering, these measures being generally referred to as 'full powers', since the President can take any regulatory act even outside of his competence, and any legislative act. However, it is not possible to pronounce the equivalent of a judicial decision. [...]
