France’s parliament passed a migration bill limiting birthright citizenship, but on Thursday the Constitutional Court struck down parts of the law. Some pro-government figures call this a good compromise — recklessly relying on judges to correct MPs’ votes.

French president Emmanuel Macron at a ceremony commemorating the Armistice of 1918 on November 11, 2023, in Paris, France. (Christian Liewig / Corbis / Getty Images)

Immigrant activists and their allies in France have gained some rare breathing room. On Thursday the Constitutional Council, the body tasked with checking the constitutionality of bills passed in parliament, threw out some of the most draconian measures in President Emmanuel Macron’s latest immigration law. The legislation was the main event in domestic politics for much of last fall, only being approved in parliament thanks to the help of the right-wing opposition parties. The support of the far-right Rassemblement National was decisive for the adoption of the government’s bill, with Marine Le Pen claiming an “ideological victory” on her fetish subject.

Her party had good reason to celebrate. The legislation in its full form checked off many items on the nationalist wish list, marking a dramatic acceleration in the assault on foreigners in France. Among the parts that the Constitution Council threw out this week were an attack on the principle of birthright citizenship that ended automatic citizenship rights for children born to non-nationals on French soil, restrictions on family regroupment (regularized immigrants being joined by relatives), the privileging of citizens for access to social rights and benefits, the creation of a specific offense for extralegal presence in France, and the holding of annual parliamentary votes on visa deliverance quotas — in effect an immigration budget ceiling, well-crafted for the far right. The decision likewise blocks the attempt to bar undocumented immigrants from emergency housing support, or a new requirement that non–European Union students pay a large financial guarantee, which would only be returned upon their leaving France or securing a job contract.

Thursday’s decision does not officially kill the new law. Although it can be sent back in its entirety for reworking by parliament, Macron’s government has opted to promulgate the legislation in its more truncated form. Its surviving elements include the expansion of deportation conditions, a lengthening of the time for holding foreigners in special detention prisons, and new visa criteria demanding “respect for republican values.”

The legislation in its full form checked off many items on the nationalist wish list, marking a dramatic acceleration in the assault on foreigners in France.

Normally on the retreat, demonstrators gathered in central Paris on Thursday afternoon greeted the decision with cautious relief. Celebrating what La France Insoumise calls the rejection of “the most rancid and shameful elements of the law,” civil society organizations, rights activists and the entire left-wing opposition in parliament are still calling for the full repeal of the legislation.

Bizarrely enough, figures in Macron’s fragile government are also trying to declare a small victory, claiming that the Constitutional Council preserved the measures that it had pushed for, while throwing out what had been included for the sake of winning right-wing support. The law’s lead sponsor, hard-line interior minister Gérald Darmanin, survived a cabinet shake-up that saw the ouster of Prime Minister Élisabeth Borne earlier this month. On X, he wrote that the ruling “validates the entirety of the government’s bill: never has a law provided so many tools for expelling delinquents or been so strict on the integration of foreigners.”

Judicial Overreach?

But the French right may be set to benefit most from this latest turn in the saga of Macron’s immigration reform — even though they nominally have the most to complain about in the latest ruling. This decision will pour fuel on the fire of right-wing anger over the alleged infringements on parliamentary sovereignty by unelected judges. Following their peers in places like Israel, Hungary, and Poland, the French right is eager to entrench their calls for changing the country’s fundamental law in order to free political majorities from the constraints of judicial oversight and liberal safeguards.

“Three out of four French people want to drastically reinforce our borders,” establishment right-wing daily Le Figaro blasted in its January 26 editorial on the ruling. “The wise men [a moniker for the council’s judges] are preventing it, and our governors are refusing to hold a referendum. Should the will of the majority stop where that of the judges begins?” A January 23 op-ed by conservative jurist Guillaume Drago, also for Le Figaro, regretted that the current constitution leaves lawmakers “constrained, corseted and prevented from modifying legislation that everyone knows is extraordinarily favorable to foreigners, in that it confers on them fundamental rights and freedoms.”

There is a great deal of exaggeration here. In fact, the January 25 decision was characteristically restrained: many of the items that were censured were done so on procedural grounds, as unauthorized riders that diverted too far from the purpose of the legislation. This means that that they could resurface in later bills pending a substantive ruling. But what the Right really wants is a head-on confrontation with constitutional precedent that claims to seek a balance between the rights of foreigners and the expedients of raison d’état — a confrontation that would tip the scales entirely in the latter’s favor.

The Right likes to cite surveys suggesting that upwards of 70 percent of voters can be said to support the proposed legislation — a fact that is not all that surprising in the current media climate, though immigration still ranks behind other public priorities like purchasing power, health care and social protection. It claims that the French’s thirst for stiffer immigration legislation is being paralyzed by proceduralist eggheads and other forms of “human-rights-ism.” This critique is what’s driving the undertow of illiberalism across Europe. Its goal is to entirely insulate majoritarian sovereignty from judicial oversight and enshrine the supremacy of national law over interference from the European Court of Human Rights and treaties like the European Convention on Human Rights.

What the Right really wants is a head-on confrontation with constitutional precedent that claims to seek a balance between the rights of foreigners and the expedients of raison d’état.

“This very broad censure, both in form and content, underlines the fact that only a reform of the Constitution will make it possible to respond to the migration challenges that are hitting our country so hard,” complained the Rassemblement National in its press release on the decision. Leaders of the old center-right Républicains, meanwhile, are demanding that parliament take up a new law to reintroduce the censured measures, with Éric Ciotti lambasting what he called the “small caste governing the country and depriving the French of their sovereignty.”

Critiques like these have been building for some time in France. One of the LePenists’ old bumper-sticker policy planks seeks to enact a principle of “national preference,” or rather generalize it across all spheres of society. In reality, the law has long allowed for ample distinctions between citizens and alien nationals. Back in 1997, protofascist firebrand Éric Zemmour’s second book took the title the Judges’ Coup d’État — a broadside against a justice system allegedly undermining national mores and popular sovereignty. Although they were ultimately sidelined from parliamentary negotiations last fall, the Right’s many demands included referendums on immigration and changing the constitution — calls that this decision will only stoke.

There should, in truth, never have been a majority for this law in the first place. Were Macron serious about blocking the far right, he would never have engineered parliamentary approval and respectability for a LePenist immigration package bound to run afoul of the constitution — which key figures in the government openly recognized in late December, leading to a public rebuke from the court’s president, Laurent Fabius. The adults in the room have drawn fresh discredit upon themselves — and handed another symbolic victory to people who want to bury them.

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