Wednesday, July 13, 2011

Why Has the French Parliament, but not the American Congress, Voted on the Libyan Intervention?

Bruce Ackerman

As Americans increasingly allow their president to break free of constitutional checks, the French are moving in precisely the opposite direction. The Constitution of 1958 created a presidency that gave DeGaulle truly extraordinary powers. Article 16 gave the president unchecked authority to declare an emergency and assert unlimited power for as long as he thought appropriate. And Article 35 authorized him to commit military forces abroad, without ever gaining parliamentary approval.

But a generation onward, the French have engaged in a sweeping reappraisal of their Gaullist inheritance, leading to fundamental constitutional revisions. In 2010, Article 16 was dramatically revised to impose strict time limits on the president’s emergency powers. After 60 days, it is now up to the Constitutional Council to determine whether the emergency conditions invoked by the president still apply; and if they do remain applicable, the Council is authorized to reconsider the matter later.

Similarly, Article 35 was amended in 2008 to require parliamentary approval of military “interventions” within four months of their initiation. Since the constitutional time-clock was running out on the Libyan operation, the government submitted its military operation for legislative approval – and both chambers voted their approval yesterday. Nobody suggested that France’s involvement did not amount to an “intervention” since it was only supplying a minority share of the entire NATO force.

The contrast with our own case is sobering – especially since the draftsmen of the French constitutional revisions looked to American sources in their own work. France’s new approach to military interventions bears an obvious resemblance to our War Powers Act. And my own proposal for a time-limited “emergency constitution” served as one of the models in the French revision of Article 16.

I offer up the French example as an antidote to the pessimists among us who discount the possibility of constructive reform through framework legislation – most notably, Eric Posner and Adrian Vermeule, whose recent book, The Executive Unbound, dismisses the effective limitation of executive power as politically impossible. Why then have the French managed it, especially when the Gaullist legacy bulks so large in their constitutional tradition?

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