It is the nuclear option of French parliamentarism: the last resort to a legislative initiative stuck in the National Assembly and considered a priority by the Government. The Prime Minister, Édouard Philippe, has wielded this week the possibility of imposing the controversial pension reform by decree. Philippe would thus avoid the systematic blockade with which the radical leftist opposition tries to derail a central project for President Emmanuel Macron. The risk, for Macron and Philippe, is that this route will turn the spirits back on the street after the December and January demonstrations.
There is nothing decided, but both the president and his prime minister have sent signals that, if the filibusterism of La Francia Insumisa (LFI) by Jean-Luc Mélenchon continues, they will consider it legitimate to avail themselves of article 49 paragraph 3 of the Constitution. This article allows the prime minister to impose a law without vote in the chamber of deputies. The only way that the National Assembly has to stop it is by means of a motion of censure that makes the Government fall. With 49.3, the Government ties its fate to a law.
By enjoying a comfortable parliamentary majority, the hypothetical motion of censure would have no chance of winning, and the approval of the health reform would be guaranteed. The problem, for Macron and Philippe, would be the cost of dodging the natural legislative process. The most recent experience is that of the socialist president François Hollande. Its prime minister between 2014 and 2016, Manuel Valls, resorted to 49.3 to impose the so-called Macron law of economic liberalization - the president was then its Minister of Economy - and the El-Khomri law on labor reform. The demonstrations, some with violent drifts, marked Valls' mandate and 49.3 has since been associated with the image of an impotent executive power before the legislature and prone to ordination and command rather than parliamentary deliberation.
"When it comes to assuming my responsibilities, I do it without hesitation and I use the entire Constitution and nothing but the Constitution, but I repeat: the entire Constitution," Philippe said Tuesday, during the government control session, in response to the question from an opposition deputy. He knows that, if he applies 49.3, Macron can see his popularity eroded and his opponents will be charged with reasons to protest again.
"They want to prepare public opinion for the idea of 49.3," denounced Mélenchon last week. "We have an authoritarian president: authoritarianism methods spread."
In the V Republic, founded in 1958, it has been resorted 86 times to 49.3. The first minister who used it most was the socialist Michel Rocard. In the case of pension reform, the Government's argument is that, without 49.3, there will be no way to approve the project in the short or medium term due to the obstructionism of Mélenchon and the rest of the opposition, which have introduced more than 40,000 amendments
The result is a debate at a snail's pace whose end is not glimpsed and Macron's growing impatience. The president believes that the reform - electoral promise and masterpiece of his program to transform France - must be approved as it is. It overcame the transport strike that began in early December and ended in mid-January, and the periodic demonstrations - each time less crowded - failed to achieve the withdrawal of the law. Count on the French, although the reform does not excite them, they begin to tire.
Before, Philippe must convince the parliamentary majority itself, where some deputies are reluctant to an option that relegates the legislature and can rekindle the protests. And to persuade the public opinion that Mélenchon's supplies - 18 of 577 - are to blame, with its systematic blockade, of leading the Government to the decree. Another risk is losing the support of the first French union, the moderate CFDT, which is in favor of reform but distrusts the unilateral way. And a technical problem: after the last constitutional amendment, 49.3 can only be used once each parliamentary course, and the pension reform is broken down into two laws. How and when will the second one be adopted, which concerns the future financing of the system? The reform contemplates the merger of the 42 current pension schemes into a single system and a new calculation method.
The parliamentary mess, and the possible coup of the Executive, occurs two weeks after the first round of the municipal elections in which LREM prepares to fit a painful defeat. And two years after the presidential elections: some macronista deputies have recalled these days that the recourse to the decree was a drag on Hollande and contributed to his unpopularity and, finally, to his decision not to appear again in 2017. It is the curse of the 49.3: as his predecessor, it will cost Macron to get rid of her.