France’s Constitution Can’t Contain Marine Le Pen

French far-right presidential candidate Marine Le Pen is working overtime to rebrand herself and her National Rally (RN) party as the common people’s choice against the elite French establishment as personified by French President Emmanuel Macron. Forget the Nazi symbols and skinheads that defined the party’s previous iteration under her father: Today, the younger Le Pen aims to refocus far-right politics on France’s social and economic concerns, which have been brought into stark relief by the fallout of the war in Ukraine. But behind its cosmetic surgery, the RN’s soul as a profoundly racist and nativist party is still intact, and it has normalized far-right views in mainstream discourse across the political spectrum.

So far, Le Pen’s strategy seems to be working. Winning 23.3 percent of the vote in the first round of France’s presidential election on April 10, Le Pen advanced to the April 24 runoff against Macron—giving her a real shot at the presidency. Le Pen’s chances this time around are much better than they were in 2017, when Macron defeated her soundly. In the years since, Le Pen has capitalized on popular discontent with Macron’s neoliberal economic policies, which reached a fever pitch with the so-called yellow vest movement.

Despite the RN’s political capital, France has never had a far-right president, and there are significant questions about how a President Le Pen would employ—or sideline—the country’s institutions to carry out her agenda. Her campaign promises include a number of measures that appear to violate the French Constitution as well as international agreements, such as European Union treaties.

France’s current republican system of government, known as the Fifth Republic, was established in October 1958 and is designed to be a semi-presidential regime that increases the executive branch’s power at the expense of the National Assembly’s. This means that a potential President Le Pen would have considerable power at her disposal. To make matters worse, French leaders of the past quarter century—Macron included—have expanded this executive authority dramatically, priming the French political system for abuse by a would-be demagogue.

As president, Le Pen’s first task under Article 8 of the French Constitution would be to appoint a prime minister in charge of forming a new transitional government before two rounds of legislative elections for France’s National Assembly take place in June. If the RN obtains the majority of National Assembly seats in that vote, Le Pen and her administration would be able to govern freely. But the current two-round majority electoral system is unfavorable to the RN as well as small parties, making the chances of a RN majority in parliament low. More likely is that a so-called governing cohabitation is proposed, in which larger parties form a majority and share power with Le Pen.

A potential President Le Pen would have considerable power at her disposal.

However, the French president still has the power to dissolve the National Assembly under Article 12 and call for a referendum under Article 11 of the constitution. The latter provision allows the president, on a recommendation from the government, to submit a referendum of any bill that deals with public powers. Le Pen intends to hold a referendum of this sort to modify the parliamentary voting system into one of proportional representation, with a caveat: Two-thirds of the seats in the assembly would be allocated proportionally, but the last third would be reserved for the party that obtained the most votes overall—a so-called majority bonus. This could give the RN a supermajority

Although the use of Article 11 is considered controversial by legal scholars, it was invoked twice by former French President Charles de Gaulle: in 1962 and 1969. The first vote, which de Gaulle won, allowed the president to be directly elected, a practice that continues to this day. That latter, which he lost, forced his resignation.

If Le Pen is elected on Sunday, the first few weeks of her term will be decisive. Either the RN wins the legislative election, or the new president dissolves the newly elected National Assembly in an attempt to hold a referendum and organize new elections with its provisions.

If Le Pen manages to pass her electoral reform, the stage would be set for her to follow through on her campaign promises. Some of the most far-reaching of these would face judicial scrutiny while others would pass into law somewhat easily. In either case, there would be a ripple effect through French politics, society, and culture whose consequences would be difficult to predict.

Among Le Pen’s most controversial proposals is an amendment to the 1958 constitution to implement national preference designations and prohibit the entry of certain classes of immigrants into France who, according to Le Pen and the far right, are changing the composition and identity of the French people—a reference to the white supremacist “Great Replacement” conspiracy theory. She also plans to legally distinguish between “native-born French” and “others” for access to housing and welfare benefits as well as ban the wearing of the Islamic headscarf in public spaces. Such provisions directly violate constitutional principles, such as equality and due process, as well as the 1789 French Declaration of the Rights of Man and the Citizen.

Previous administrations laid the groundwork for a potential Le Pen takeover by creating legal and rhetorical weapons that she will use to justify an even more palpable restriction of civil liberties in violation not only of the French Constitution but also of international treaties. Indeed, violations and restrictions of civil liberties enacted by presidents of all stripes—mainly aimed at vulnerable populations, such as Muslims, immigrants, and refugees, but also at activists and even journalists—have provided fertile ground for Le Pen to move from discourse to action.

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Since the November 2015 Paris terror attacks, France has been in an ongoing state of emergency, which has become a vehicle of governance unto itself.

The state of emergency officially ended under Macron in 2017 but only after many anti-terrorism measures were incorporated into permanent law through the 2017 Internal Security and the Fight Against Terrorism act. Akin to the Patriot Act in the United States, this legislation includes provisions for surveillance, house arrests, administrative searches, identity checks, and the closure of places of worship. The 2021 Supporting Respect for the Principles of the Republic (the so-called anti-separatism law), which aims to fight but does not legally define “separatism,” continues this pattern.

Le Pen will easily be able to use the anti-separatism law to target associations working on human rights issues. For state-funded charities, a Le Pen presidency is a serious concern, as she will undoubtedly want to cut all funding to associations fighting racism and discrimination, defending the environment, and helping refugees. This could create an unsustainable situation that leads to the closure of many nongovernmental organizations.

Le Pen knows very well that the legislation she intends to implement may be seen as discriminatory and could be rejected by the courts. Here, the Constitutional Council—France’s highest constitutional authority—the Council of State—the highest court of administrative justice—and the Court of Cassation—the highest court of civil and criminal justice—will play a major role as regulators of power. However, Le Pen can bypass the courts and parliament by misusing Article 11 of the French Constitution to take her measures directly to the people via referendums. Although the aforementioned institutions could take a stance on the legality of a referendum, their power to constrain Le Pen will be limited.

Just as in the United States after the presidential election of Donald Trump, France will likely experience an uptick in engagement and protests should Le Pen win. But due to presidential powers granted under a state of emergency, Le Pen will have no problem implementing nationwide curfews, outlawing protests, or putting political opponents under house arrest. On top of that, as president, Le Pen will also have at her disposal the ultimate nuclear weapon of French constitutional law: Article 16, which temporarily gives legislative and judiciary powers to the president if France’s territorial integrity is threatened. Article 16 has been colloquially referred to as “temporary dictatorship.” That’s partially because Article 16’s broad mandate over threats to France’s territorial integrity could be interpreted by a Le Pen administration to include popular protests.

France’s Fifth Republic has too many loopholes.

Before triggering Article 16, the president is required to consult the prime minister, the presidents of the National Assembly, the president of the Senate, and the Constitutional Council as well as to address the nation. Once triggered, Article 16 can theoretically be in place indefinitely, but a 2008 constitutional revision allows legislators to challenge the provisions before the Constitutional Council 30 days after they are put in place. The council will also automatically review the provisions on its own.

Despite these safeguards, Le Pen will still wield enormous power, especially if she gains a parliamentary majority. History has shown us that once the far right wins power, it is very difficult to take it away.

The RN may have become normalized, but it is not a normal party. It is openly racist, carrying an ideology that would affect individuals living on French soil who are deemed “undesirable” due to their skin color, sexual orientation, national origin, or religion. It is a party fascinated by and close to authoritarian regimes, as proven by Le Pen’s proximity to Russian President Vladimir Putin and Hungarian Prime Minister Victor Orban.

France’s Fifth Republic has too many loopholes that Le Pen might exploit to strengthen her authority, and its checks and balances are too fragile to be effective. It is also unclear whether civil servants—or civil society—will have enough influence to keep Le Pen in check. Given France’s revolutionary history, anything is possible.