Reflections on Macron’s use of 49-3

By the time the National Assembly was called to order on March 16, 2023, the deputies knew that the government was going to use Article 49-3 to declare that the government would assume the responsibility for passing the retirement bill–meaning that they would declare it “passed” without debate or vote, and that a vote of censure would be their only means of expressing themselves; the deputies are working on that measure now.  The moment P.M. Elisabeth Borne was called to the podium, La France Insoumise and other members began singing La Marseillaise. 

Re-elected less than a year ago, Macron has, one hopes only for the moment, sabotaged his own second and final term.  In the tense Élysée conference on March 15, at 9:57 p.m. (the precise time suggests the news came from someone within the meeting), he raised the idea of going to a vote, then dissolving the National Assembly immediately if it failed, and calling for new elections, which constitutionally he can do.[1] It would likely be a mistake; Conservative Jacques Chirac’s decision to do so in 1997 saddled him with a new Socialist Party majority and the Socialist leader Lionel Jospin as prime minister for the next five years.  If indeed it is Macron’s intention to call for new elections to the National Assembly, then the use of 49-3 has pre-empted an on-the-record vote of this issue–a boon for candidates of his own party, but probably not much of one.  What platform do his candidates run on?

And what does yesterday’s session do to Macron’s cabinet, and particularly to Elisabeth Borne?  It is hard to see how she and many in her cabinet can survive.  According to Le Figaro and another talkative insider (or perhaps the same one), Macron, at 2:10 p.m. on the 16th of March (and after the Senate had passed the bill) stated to his cabinet of Ministers: “[It would be to] my benefit and [according to] my political will to go to the vote.  Among all of you, I am not the one who is risking his place and his seat.  But I consider that the financial and economic risks are too great for the state.  That is the reason why I am accepting your request to engage your own responsibility on this text” (that is, 49.3).[2]  That sounds a little monarchical; and he was perhaps underestimating his own vulnerability, particularly In terms of whether he could continue to be an effective leader.   And what of the vulnerability of his party?  Has it lost its raison d’être?  Where is the “Left” in Macron’s “Both Left and Right?”  

The next test of Macron’s party, Renaissance, may come during the 2024 European elections.  Marine Le Pen’s Rassemblement National (RN) got the highest percentage of the vote in the 2019 elections, with Macron’s party coming in second, just under a percentage point behind. The RN deputies have not been hurt by this pension fight, in which they were staunchly opposed, but less vocal and chaotic than La France Insoumise.  A French EU delegation dominated by a pro-Putin/pro-Russia/anti-NATO RN would be damaging to the unity of the European Union.

So are there any procedural steps that can be taken?

The Conseil Constitutionnel will probably be asked to take up the issue.  They would not judge the 49-3 procedure–which is in the constitution–but they might determine whether the use of this procedure, or of Article 47-1 (which truncated the debate) was a justified use, given the subject matter; and they would be able to look at each separate article of the law, to determine whether any violate existing law, and to nullify not the law but a particular article.  Headed currently by Laurent Fabius, a leading Socialist Party member for decades, the Council’s purpose is to examine the constitutionality of laws and certain regulations. 

They also supervise the handling of referendums, according to the RIP process.

The RIP, or Referendum d’initiative partagée, is article 11 of the constitution.[3]. It began as an initiative of the President (only) to call for a vote of the public on a particular issue in defined categories; the clause that includes “the economic, social, or environmental policy of the nation” would likely cover the issues relating to pensions.  This article was redefined by Sarkozy in 2008 to make it more “popular,” by including the voices of citizens–but also to make it so complicated that it would be unlikely ever to be used.[4]  A further complication is that an RIP cannot be directed against a law that has been in force for less than a year.

Macron and Borne made a number of missteps along the way, beginning with their failure to make the case for the necessity of the reform.  The reasons put forward had largely to do with the coming bankruptcy of pension funds, because of the demographic shifts–the mass retirement of baby boomers, coupled with a smaller number of people in active employment.  Added to that was the European Union restraint that prevents member state debt from amounting to more than 3% of the GDP (in France, the PIB).  If the state bailed out the pension funds, it would be costly and would boost the total debt beyond acceptable levels.  

If the French spoke English, the argument would go a little something like this:

But this argument has become a little threadbare with overuse.  And in France, in the face of bailouts or tax credits or outright gifts to corporations, in the face of gross and growing disparities in income, leisure, and wealth, there are those who wonder why it has to be the very neediest who pay.

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Header image from Shutterstock.

[1] Claire Gatinois and Ivanne Trippenbach, “Retraites Emmanuel Macron fait pression pour trouver une majorité après un conclave à l’Élysée,” Le Monde, March 16, 2023.  https://www.lemonde.fr/politique/article/2023/03/16/retraites-apres-un-conclave-a-l-elysee-emmanuel-macron-fait-pression-pour-trouver-une-majorite_6165652_823448.html

[2] François-Xavier Bourmaud and Wally Bordas, “Tension à l’Élysée, coups d’éclat et 49.3 à l’Assemblée . . . (sic) Les coulisses d’une folle journée politique,” Le Figaro, March 17, 2023. https://www.lefigaro.fr/politique/tension-a-l-elysee-coups-d-eclat-et-49-3-a-l-assemblee-les-coulisses-d-une-folle-journee-politique-20230316

[3] https://www.conseil-constitutionnel.fr/en/constitution-of-4-october-1958, The Constitution of the Fifth Republic in English; see article 11.

[4] Ronan Planchon, “‘Le référendum d’initiative partagée est conçu pour ne jamais être utilisé,’” Le Figaro, March 17, 2023.  https://www.lefigaro.fr/vox/politique/le-referendum-d-initiative-partagee-est-concu-pour-ne-jamais-etre-utilise-20230316