an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Why Has the French Parliament, but not the American Congress, Voted on the Libyan Intervention?
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? Posted
by Bruce Ackerman [link]