Since the terrorist attacks in Paris (November 13, 2015) and the decision taken by the President of the French Republic François Hollande to use article 16 of the Constitution of 1958, sharp criticisms were leveled at the use of emergency powers. Many Academics have criticised the monopoly of the President, the lack of collaboration between the institutions and the lack of judicial review. For some of them even in a democratic State there might still be a risk of gradually slipping towards dictatorship.
Dictatorship can be defined as an arbitrary and coercive political system, in which all the powers are held by one individual. The power is not shared, nobody has the ability to control or punish the acts of the dictator and civil liberties are no longer guaranteed.
In this sense dictatorship is a regime of confusion of powers and is thus opposed to democracy, in which the fundamental principle of the “separation of powers”, defined by Montesquieu, applies. According to Montesquieu the power must be divided into three functions: “the executive, the legislature and the judiciary”, to prevent any abuse.
The issue of the risk of a dictatorship in favour of the Executive remains even in a number of States which are regarded as democratic such as Germany, the United States and France. The fear is that the executive, by lawful means, absorbs the powers of the other institutions.
In this sense the controversial German legal theoretician, Carl Schmitt, who had strong ties with the Nazi regime, talked about the development of “semi-constitutional dictatorship” which by granting “essential powers” to the Head of the executive allows him to “break free from the shackles of liberal democracy”. These semi-constitutional dictatorships are more likely to appear during a serious crisis.
Thus in modern democracies a new risk has appeared: the risk of lawfully producing a dictator.
It is worth focusing first on the form of the Executive in these three States. The French Republic is based on the Constitution of the 4th October 1958 which established a Parliamentary system (even if some Academic believed it has become a semi-Presidential system due to political practice). The French executive is “two-headed”, there are a President of the Republic and a Prime Minister. In practice it appears clearly, that, except in time of “cohabitation”, the President dominates the executive function even if he has to share some powers with his Prime Minister.
Germany is characterised by a rationalised Parliamentary regime established by the Basic Law which came into effect on the 23th of May 1949. At the head of the German executive power are a President who has a symbolic role, and a Chancellor who truly holds the executive power.
Finally, the United States has a Presidential regime established by the Constitution ratified the 21th of June 1788 and has at the Head of its executive power a President, who is the only one allowed to exercise the executive function (US constitution article 2 section 1).
The three States have a different way of applying the principle of Montesquieu. If in France and Germany prevails a “weak separation of power”, which involves a collaboration of executive and legislative powers and the existence of mutual means of exerting pressure. The United States opted for a “strict separation of power”, the powers do not directly collaborate but there are some encroaches and checks and balances.
These States are a priori democratic, but democracy can degenerate into dictatorship if there are no sufficient constitutional safeguards. One of the major historical examples is Napoléon, who gained his power by using lawful means.
Thus are France, Germany and the United States sufficiently protected through constitutional safeguards to prevent the rise of a lawfully-produced dictator?
Even in peacetime the Head of the executive power seems to enjoy an impressive amount of powers (I), the Executive is strengthened and reached its climax during a crisis or a state of emergency where its powers are greatly extended (II), nevertheless the Constitutions of France, Germany and the United States all try to set boundaries to prevent the rise of a Dictator (III).
I- The risk of a concentration of power in the hands of the Executive in peacetime
The history of each State affects its constitutional organisation:
France has been marked by strong instabilities due to a weak executive power during the 3rd and 4th Republics, therefore the 1958 Constitution strengthens the role of the President, turning him into the “clef de voûte” of the institutions. The President gained in legitimacy though the direct universal suffrage (since the referendum of the 28th October 1982). The Prime Minister himself is simply appointed by the President and the President has, in practice, the last word, this is even more true since the cut of the Presidential term from 7 to 5 years (see Article 6 of the French constitution), which allows to avoid cases of “cohabitation”.
The French President has the classic features of the Head of State, but he also cumulates the functions of a Head of government. Therefore the French President is not a President with mostly symbolic powers like in Germany.
Surprisingly if the President must get all his acts countersigned and is unaccountable (article 19), unlike the government (article 20 and 49), he still has the power to dissolve the National Assembly. This is a real « royal dissolution » according to Prévost-Paradol, the President can discretionary use the Article 12. Furthermore there is an absolute lack of judicial review.
Some Academics detect in some of the powers of the French President a confusion of powers. Indeed the Government has the power to initiate legislation, and it must be noted that most of the statutes voted each year emanate from the executive. There is a “real monopoly on the initiative of the bills by the government”. In addition the “fait majoritaire” leads to the confusion of powers in favour of one single party. On the contrary the President of the United Stated is often confronted to a reluctant Congress, and the Chancellor in Germany often has to rely on coalition of several political parties which limits the risks.
The German Basic law has developed on a historical model completely opposed to the French one because of Nazism. Indeed the constitution of 1949 succeeded to the Weimar Republic. From 1930 to 1933 Germany had a permanent executive using the emergency power to legislate outside the Bundestag.
There is a distrust towards the executive, which clearly appears in the Basic Law, the government comes last in the German constitution, in Part 6, section 62, whereas in France the President comes first, it is a symbolic evidence of the desire to avoid a “high-powered executive”.
This distrust has even influenced the election of the Chancellor; he is appointed by the President and elected by the Bundestag. The Chancellor must also take an oath and respect the constitution (article 64 of the Basic Law)
The Chancellor is the Head of the Federal Government. The federal Chancellor just like the French Executive sets the broad orientations of the Policy of the Nation (article 65) but as opposed to the French President, he is accountable before the Bundestag and thus can be dismissed (see article 67). The Chancellor like the French President can dissolve the Bundestag if it rejects his vote of no-confidence (article 68). It is clear that the Chancellor shares, at least symbolically, the executive power with the Federal President.
The Chancellor, however, is not subject to term limits unlike his counterparts (article 54 of the Basic Law), Angela Merkel has been Chancellor for 10 years. The French President can only be elected twice consecutively, and the American President only twice in his life.
This absence of term limits is often regarded as an “important risk for development of a dictatorship”. Besides it is very difficult to dismiss the German Chancellor due to the “rationalisation”, indeed to do so the Bundestag must find a substitute very quickly (article 67).
The Federal government can also, with the help of the Bundesrat, issue “statutory instruments” so be able to legislate (see article 80 of the Basic law), which looks like the system of the ordonnances in the French constitution (article 38 of the French Constitution). This does not exist in the Unites States, where only the Congress has the power to legislate (Article 1, Section 1 of the US Constitution).
The United States Constitution was inspired by the ideas of Enlightenment and Montesquieu, thus prevails a strict separation of powers with distrust vis-à-vis the federal executive. If the separation is not absolute, it is clearly difficult for a power to absorb the other.
The US President as in France has a great legitimacy due to the way he is elected (article 2 section 1). He also combines the functions of Head of State with the functions of Head of Government. In the US Constitution, unlike Germany and France, the President appears truly as the only figure of the Executive, the powers of the Vice-President and of a possible Government are never mentioned.
The President is the commander in chief of the Army and Navy of the United States (article 2 section 2), and decides whether to use armed forces. However, permission to use armed forces for a long period must be given by Congress. The War Powers Act of the 24th October 1973 requires the President to report to Congress any long-term military commitment within 48 hours, otherwise the troops will be withdrawn in the next 60 days.
The President also has the power to enter into treaties with the approval of 2/3ofthe senate (See article 2 section 2).
The US President has the monopoly over the executive function, but he cannot introduce a bill in Congress. Nevertheless the problem is that American Presidents developed the practice of vetoes and pocket vetoes, becoming somehow a “co-legislator” (See article 1 section 7). This system has lead to drifts, Roosevelt used the “veto power” 635 times. Furthermore another type of veto was almost going to be created in “financial matters” but it was deemed unconstitutional by the Supreme Court.
If the President is in practice helped by Governmental Agencies, the Cabinet, the Bureau and the White House Office, in the Constitution he is truly alone at the head of the executive power, unlike the German Chancellor and the French President.
II- The risk of an uncontrolled increase of the powers of the Executive in times of crisis
“A state of emergency is a state of executive governance that by definition undermines the constitutional balance of powers in a Democracy; it can empower national executives with the tools to lift their countries out of crises”
Crisis management imposes emergency powers, these broader powers entrusted to the executive can be found in different forms in the three States. These powers are inspired by the temporary Dictatorship of the Roman Republic, which vested to one man all the powers for a limited period of time.
It is interesting to differentiate the Constitutions of France and Germany, which provide emergency powers to the Head of the Executive, from the US Constitutions which remains silent on this point.
In France this system is based on Article 16 and its implementing legislation of April 3rd, 1955, recently amended the 21th of November 2015. This procedure has been described as a “real temporary dictatorship” (Prosper Weil Pouyaud), and has experienced abuses since its very first use in 1961. In 1961 this article was used for the first time to stop the “putsch des généraux” but even though the problem was solved in April, President De Gaulle continued to use article 16 till September.
The state of emergency in France is declared by the President alone. To declare the state of emergency the President must establish a « serious and immediate threat”, but he is the only one allowed to assess the situation, and as the Conseil d’Etat recently recalled: he has a “wide margin of appreciation”.
Furthermore France has refused to suffer from any international tutelage, indeed when the French Government ratified the International Covenant on Civil and Political Rights (December 16, 1966); it formulated a reservation on paragraph 1 of Article 4 of the Treaty. This article allows States to take derogating measures “to the extent strictly required by the exigencies of the situation”. It clearly shows that France did not want set news boundaries to the discretionary power owned by its President.
In Germany the system is quite different, indeed the Basic Law was written after the abuse of article 48 of the constitution of Weimar which has lead to more than “250 Presidential suspensions of rights”.
It is the article 115a and the following articles which govern the “state of defence”. Several conditions must be respected, especially there must be an aggression of the federal territory. If the decision to declare the state of defence must be made quickly there will be a Joint Committee See (article 115a). In Germany the Bundestag with consent of the Bundesrat, on a request of the Federal Government, can declare the state of defence. So unlike France, there truly are many institutions involved in the process which allows to avoid discretionary decisions.
However there are safeguards provided by both constitutions. In France the Parliament cannot be dissolved, and there must be consultation of the Conseil constitutionnel. Since the constitutional amendment of July 23th, 2008 (which was based on the proposal 11 of the Commission Balladur, See report of October 29th, 2007), the opposition has the possibility to ask to the Conseil constitutionnel to perform a Judicial Review, this Judicial Review may only be performed by the Conseil constitutionnel, it is indeed outside the field of competence of the Conseil d’Etat.
Nevertheless the French President is still the only one taking decisions, there is no official collaboration with the other institutions. The French Parliament is powerless and passive, unlike the Bundestag, indeed the role of the French Parliament is not defined by the Constitution, and the Conseil constitutionnel refused to define it (See decision of the 14th September 1961). The only way the Parliament could stop the President would be through the system of the High Court (French impeachment, see article 89 of the Constitution). In Germany the Bundestag has an active role throughout the state of defence, even if the Basic Law allows the transfer of the power of commandment of armed forces in favour of the Chancellor, the President is not acting alone.
In addition, in France, an amendment to the constitution is not prohibited during the use of emergency powers (except in the case where the territory of the Republic is affected, see article 89). In Germany the Basic Law is protected, it may not be modified, amended, suspended (See article 115 e of the Basic Law), as well as the Federal Constitutional Court, it is impossible to modify or suspend its status (See article 115g).
In the United States things are different because no emergency expanded powers are provided by the Constitution.
However the US has already experienced periods of crisis. Like in France in 1961 and in Germany in 1930, the United States experienced a period of crisis with a « constitutional dictatorship » under President Lincoln (between the 15th of April and the 4th of July), at the end of this crisis Congress had no choice but to validate the acts of Lincoln (the 6th of August 1861) despite the breaches of the Constitution.
The US has filled this constitutional gap through « constitutional construction« . Indeed as no emergency powers were explicitly mentioned, these powers were construed from the US Presidential powers used in peacetime.
However, as in France it is only the President who assesses the situation and decides to declare a state of emergency, allowing pressure on the Congress. Indeed if the evaluation of the situation is made by the President alone, once the state of emergency is declared, the Congress has to follow the President due to political pressure, and usually the Congress says yes to all the demands of the President. For example in 2001 with the USA Patriot Act, President Bush declared “I’m the commander, I don’t need to explain”, the President ended up in the position of a lawful dictator, which clearly threatens civil liberties.
The limits that Congress tried to impose to the President are as weak as the French limits implemented by the amendment of 2008. To limit abuses the Congress passed few Bills, such as the National Emergencies Acts of 1976 which force the President to respect some formalities, but these boundaries are usually deemed as insufficient.
Nevertheless it can still be argued that in the USA there is less risk of dictatorship than in France, indeed in the USA the emergency powers are given by the Congress to the President through statutes (as there is no clear mention of emergency powers in the Constitution), so the US Supreme Court can perform a Judicial Review and strike down those powers. It is not possible in France, the powers are vested by the Constitution and the Judicial Review of the Conseil Constitutionnel is limited to the “emergency standard” set by article 16, but it does not directly control those powers and the decisions taken by the President.
It is interesting to note that in the United States there are also extraordinary powers granted to the President in time of “serious economic crisis” (See The International Emergency Economic Act of 1977). Such powers do not officially exist in France nor in Germany.
Finally Academics do not criticise the increasingly important emergency powers, indeed it is true that in time of an imminent danger those power could be more efficient than the traditional democratic process. Therefore the issue is more in link with the length of the period during which the Head of the Executive is allowed to use these powers. No accurate definition of crisis, state emergency or state of defense has been given. This constitutional loophole allows the Head of the Executive, especially in France and the United States, to be the only one able to assess, on a discretionary basis, the existence of a crisis. Thus the executive might sometimes be able to use these emergency powers longer than necessary.
Nevertheless France, Germany and the United States have all set boundaries in order to avoid abuses during peacetime or times of crisis.
III- The need of boundaries and counter powers against the French, German and American Executives
A first mean of resistance to the risks of dictatorship is the existence of fundamental rights provided with effective protection. In France there are no fundamental rights in the Constitution, the rights are in the “bloc de constitutionnalité”.
Germany is once again modern with a long catalog of fundamental rights in the first part of its Constitution. In the US the list of fundamental rights can be found in the Bill of Rights of 1789 which came into force in 1791 and has been amended several time (article 1: religious freedom , freedom of speech etc,) mostly classic rights, no rights of the 3rd generation in the US Constitution.
Also to avoid the birth of a dictator, it has long been admitted that a democracy must be able to indict the Executive.
The most famous procedure is the American impeachment, which combines the Chamber of representatives and the Senate (See section 3 article 1): the House of Representatives and the Senate have both a role, but only the Senate will try the President, and impeach him if it reaches a 2/3 majority, this procedure has been used for example against the President Andrew Johnson in 1968.
The effects of impeachment, however, are limited, the President can only be dismissed and be prevented from exercising political or civil functions; even if then he can still be tried in front of a traditional jurisdiction (See section 3 article 1 of the US constitution).
A similar procedure exists in France, if the President is irresponsible (See article 67 the President is not accountable for the acts carried out in his official capacity, he can’t be sued, be required to testify etc during his term), there are exceptions.
The First relating to the International Criminal Court (See article 53-2), France ratified the Treaty of Rome establishing the International Criminal Court, this new accountability has been introduced by the constitutional amendment of July 8th, 1999, (See decision of the conseil constitutionnel of January 22, 1999, the immunities of the article 68 need to be amended before the ratification of the treaty).
The second is a political procedure organised by the Parliament convened in High Court (See article 68), the President shall be removed from office in case of breach of his duties patently incompatible with his continuing in office.
It should be noted however that the US impeachment is more effective and more specific than the French procedure. The American President can be impeached in case of Treason, Bribery, or other high Crimes and Misdemeanors (See article 2, section 4, US constitution), it is thus much more specific than the article 68 of the French constitution
In Germany things are a bit different there is no impeachment for the Chancellor but he may however, as said before, be dismissed (article 67 of the Basic Law).
There are other various limitations, such as protection of political parties (See article 4 constitution of 1958; See article 21 Basic Law of 1949) to avoid the emergence of a dictatorship there must be a political opposition. There is also a need for protection of the Members of Parliament (See article 26 of the Constitution of the 5th Republic, See article 47 of the Basic Law, See article 1 section 6 of the US constitution).
Furthermore the three constitutions have a rigid system of constitutional review.
Thus Article 89 of the French constitution calls for several institutions and prevents the executive power to act alone .The amendment of the constitution can be initiated by the President based on proposal of the Prime minister , or by the Members of Parliament. Then the amendment can be authorised by referendum (when the initiative comes from the President) or by a 3/5 majority in the “Congress”. So there is clearly a strict protection, which can however be weakened by the “fait majoritaire” allowing one single party to amend the Constitution.
The Article 79 of the German constitution requires the adoption of a statute and rigorous conditions, a 2/3 majority in the Bundestag and in the Bundesrat must be obtained.
Finally the US Constitution provides the possibility of amendment in its Article V. The amendment can be validated by the Congress or by the States. A 2/3 majority in both Houses of Congress or 2/3 of the Legislatures of the States must be obtained to propose amendments to the Constitution. The final ratification of the amendment necessitates ¾ majority.
It appears that Germany and the United States have a protection of democracy that does not exist in France, they have, besides the horizontal separation of powers, a “vertical separation of power” due to their federal organisation.
The constitution is also protected through the existence of an effective Judicial Review. In the US there is a diffuse judicial review, since the decision of 1803 Marbury v Madison. Whereas in France the existence of “a posteriori” Judicial Review is very new (See the “Question prioritaire de constitutionnalité”, article 89 of the French constitution) to strike down the unconstitutional acts. In Germany when the Basic Law is violated it is also the Federal Constitutional Court which performs the judicial review.
Despite of these protections each of these States experienced several constitutional amendments, but some articles cannot be modified: the Eternity Clause. Eternity Clauses may be extremely important protections against “semi-constitutional dictatorship”. For example in Germany the principle of human dignity (article 1 of the Basic Law ), or the federal organisation of the republic (article 20 of the basic Law ); in France for example there is the republican form of government (see article 89 of the French constitution). However these “Eternity Clauses” are not always respected, indeed in Germany article 1 and 20 have both been amended, which is in theory impossible.
France and Germany also enjoys a protection from the European Union and the Council of Europe, they both can be controlled and sanctioned by the European Court of Justice and the European Court of Human Rights.
In all these three democratic States, constitutional provisions are not always respected. However, Germany seems to have enough safeguards, a mandatory collaboration of powers, especially an active role of the Bundestag during crisis to avoid the birth of a lawfully-produced dictator.
However France and the United States are endowed with a particularly strong executive, especially in times of crisis where it becomes almost impossible to stop the President.
Despite all these constitutional safeguards, it seems that a confusion of powers in favour of the Executive is not impossible in these States especially during a Crisis or a State of emergency.
Academics do not say that France or the United States are likely to suffer from a “coup d’état”, or to turn into real dictatorships, but rather they consider that even without clearly violating the Constitution, and without using force, simply by using legal means, the French and the American Presidents have the ability to temporarily transform into “semi-constitutional dictators”.
Pour en savoir plus :
- Louis Fisher Presidential War Power, Kansas University Press, 2013
- Ellen Kennedy, Constitutional Faillure, Durham Duke University Press, 2004
- Raymond Youngs, English, French and German Comparative Law, third edition
- Dictatorship: Its Dangers and Its Design » (2010). Faculty Scholarship Series
 See Balkin, Jack M. and Levinson, Sanford, « Constitutional Dictatorship: Its Dangers and Its Design » (2010)
 See Montesquieu, De l’esprit des lois » XI, 4 , 1748
 See Droit constitutionnel contemporain, Dominique Chagnollaud , Dalloz 7eéd 2015
 See Routledge Handbook of Constitutional Law By Mark Tushnet
 See Amar, Akhil Reed, « On Prosecuting Presidents » (1999). Faculty Scholarship Series
 See Revue , POUVOIRS, 4/2012 n°143, p 113-122 , Julien Boudon
 See Balkin, Jack M. and Levinson, Sanford, « Constitutional Dictatorship: Its Dangers and Its Design
 See Michel Debré in his speech of 27 august 1958
 See article 5 of the Constitution : He is the guardian of the constitution (article 5), and See article 15 the Commander-in-Chief of Armed forces and presides the National defense councils (Article 15)
 See article 9 and 20 of the Constitution : He is with the government in charge of law enforcement and presides the Council of Ministers, which is in charge of Policy of the Nation
See decision of the 4th June 1988, Conseil constitutionnel : the Conseil constitutionnel refuses to examine the decision to dissolve Parliament
 See La Ve république et la séparationdes pouvoirs, Michel Troper, DROITS 2006/1 n° 42 p33-4
 See L’opposition parlementaire : un contre –pouvoir politique saisi par le droit , Béligh Nabli, POUVOIRS, 2/2010 n°133 p125-141
 Carl Schmitt, revue international de politique comparée, De Boeck supérieur, 2009/1, vol 16
 See How a constitution can safeguard democracy : the german experience” , professor Dr Jutta Limbach
 , See Fromont Michel, « La réforme du fédéralisme allemand de 2006. », Revue française de droit constitutionnel 2/2007 (n° 70) , p. 227-248
 Indeed if ministers are appointed and dismissed by the President, it is based on in Chancellor’s proposal (see Article 64 of the Basic Law)
 See Preventing dictatorship : constitutional safeguards against antidemocratic consolidation of power ; democracy reporting international briefing paper 9, july 2012
See the Supreme Court in the 1974 case Nixon : “the sovereignty has been divided in three” quoted in E.Zoller Grands Arrêts de la Cour suprême des Etats –Unis , p 833
 See Louis Fisher , Presidential War Powers, 2013
 Nevertheless if must be pointed out that a practice allows him to ratify alone “agreements in simplified form” without the approval of the Senate.
 See M Nelson, Guide to Presidency 2nd éd, Washington DC, CQ, 1996 p558-560
 See Clinton v City of New York, 1988
 See Preventing dictatorship : constitutional safeguards against antidemocratic consolidation of power ; democracy reporting international brefiefing paper 9, july 2012 page ; See also S.J Toope, la Dictature constitutionnelle, 2007/10
 See Guillaume Paugam, revue labyrinthe, l’état d’exception : sur un paradoxe d’Agamben
 See La limitation par le droit : le principe de légalité, le droit administratif, paris, puf, 2013
 See article 16 : After a simple consultation of the Prime minister, the Presidents of the two houses of Parliament, and after having informed the population
 See decision of the 27th of January2016, Ligue des droits de l’homme et autres, Conseil d’Etat
 See Rene Berunet, The new German constitution (Joseph Gollomb trans., 1922).
 See Raymond Youngs, English, French and German Comparative Law, 3rd edition
 See Vider l’article 16 de son venin : les pleins Pouvoirs sont ils solubles dans l’état de droit contemporain ? Sébastien Platon , Revue française de droit constitutionnel 2008/5 HS n°2 p 87-116 , PUF
 See decision of the 27th of January2016, Ligue des droits de l’homme et autres
 To the exception to the possibility to suspend the writ of Habeas Corpus in case of rebellion or invasion , See article 1 section9
 Constitution See L’état d’exception : sur un paradox d’ Agamben, Paugam, revue labyrinthe 2004/3 n°19)
 See Balkin, Jack M. and Levinson, Sanford, « Constitutional Dictatorship: Its Dangers and Its Design” (2010)
 See Charlie Savage, Takeover : the Return of the imperial Presidency and the subversion of American democracy 121-22 (2007)
 See Bob Woodward, Bush at War, 2002
 They have been used also by President Obama in 2008, it allows the President to use expanded power for a long period of time and not temporarily
 See décision du 16 juillet 1971of the conseil constitutionnel, liberté d’association
 See article 1 human dignity and See BVerfF, Judgement of 28 May 1993-2BvF 2/90-Rn (1-434) ; article 2 : right to life; article 5 : freedom of speech etc
 See Preventing Dictatorship : Constitutional safeguards against antidemocratic consolidations of power, Briefing Paper 29 July 2012, Democracy Reporting International
 See F Michaut, la procédure d’impeachment aux Etats-Unis, Paris, 2002
 See also Report of Philippe Houillon, député Val d’Oise, for the Constitutional Commission of the National Assembly, 20 déc 2006, rapport n°3537
 See le mauvais usage des spectres , la séparation rigide des pouvoirs, Julien Boudon, revue fr de droit constit , 2009/2 n°78 p 247-267 ; See also Advance introduction to comparative constitutional law, Mark Tushnet, 2014
 See Unconstitutional Constitutional Amendments : A study of the Nature and Limits of Constitutional Amendments Powers, Yaniv Roznai, LSE, 2014