In Argentina, presidents make laws and dare Congress to veto

Observatorio argentino 59

In Argentina, the President writes laws and dares Congress to veto. Worse yet, the constitution throws up procedural barriers to make it hard for Congress to veto even if it wants to.

President Milei just issued a sweeping decree that turned economic life on its head. In one fell swoop, he amended or repealed the laws governing rental properties, regulating wholesale markets, establishing price controls, governing supermarkets, and setting industrial policy. He opened up the Argentine airline market. He converted all state enterprises into joint-stock companies, to make them easier to sell. He eliminated all restrictions on foreign land ownership. He eliminated the law allowing the President to ban exports. And he turned labor law upside down.

All without Congress. Just poof, like that.

And it’s perfectly constitutional. Under a 1994 amendment to Article 99 of the constitution, the President can decree pretty much anything. Here is section 3:

The Executive Power shall in no event issue provisions of legislative nature, in which case they shall be absolutely and irreparably null and void. Only when due to exceptional circumstances the ordinary procedures foreseen by this Constitution for the enactment of laws are impossible to be followed, and when rules do not refer to criminal issues, taxation, electoral matters, or the system of political parties, he shall issue decrees on grounds of necessity and urgency, which shall be decided by a general agreement of ministers who shall countersign them together with the Chief of Cabinet.

Within the term of ten days, the Chief of Cabinet shall personally submit the decision to the consideration of the Joint Standing Committee of Congress, which shall be composed according to the proportion of the political representation of the parties in each House. Within the term of ten days, this committee shall submit its report to the plenary meeting of each House for its specific consideration and it shall be immediately discussed by both Houses. A special law enacted with the absolute majority of all the members of each House shall regulate the procedure and scope of Congress’s participation.

In short: since the amendment never defined “exceptional conditions” and the courts have (probably wisely) declined to intrepret the phrase, then the President can decree anything that doesn’t change taxation or the electoral system. In theory, the joint standing committee—selected by the Congressional leadership—can reject the decree.¹ In practice, the joint standing committee often stonewalls or deadlocks, in which case the decree goes ahead and becomes law after ten business days. No congressional vote needed.

Here’s an example. In 2017, President Macri wanted to make it easier to deport undocumented immigrants in the face of the Venezuelan influx. He didn’t think the changes would get through Congress … and he wanted to move fast. So he issued a “necessary and urgent decree.” The decree (text here) went to the joint standing committee on February 22, 2017. The joint standing committee has 16 members, but only 11 showed up to the meeting, and they split 6 to 5. Since nobody got eight votes, it never reported out a recommendation and the decree never went to Congress. In October 2017, a federal judge confirmed that the decree was now law, even though the joint standing committee never issued a recommendation and Congress never voted. In theory, Law 26,122 gives Congress the right to immediately vote if the committee does nothing, but in practice that has never happened.

The current situation

As of right now, the new Congress has not yet appointed a joint standing committee. Not counting holidays, the ten-day clock will run out on January 8th. If Congress hasn’t appointed a joint standing committee by that date, then Chief of Cabinet Nicolás Posse will have nobody to submit the decree to, and following precedent it will become law.

If Congress does manage to appoint a committee—this will be a political decision—it could be a problem since it will be split. Of the eight seats from the Senate, the Peronist “Homeland Union” (Union por la Patria, or U.P.) will get three and the conservative block the remainder.² Of the eight seats from the lower house, however, the U.P. will probably have five, although right now there is a lot of maneuvering going on to try to cut that to four.³

In other words the U.P. will at most get eight seats, which won’t be enough to overturn a decree. (I would give 2:1 odd that they will only wind up with seven.) The joint standing committee won’t slow Milei now. In the future, it might, but I wouldn’t be surprised to see all the shenanigans of recent decades pulled out, such as a failure to be called into session or a mysterious inabilities to achieve a quorum. It takes a lot to stop an Argentine president.⁴

How we got here

How did Argentina wind up with such an all-powerful executive?

Let us tell you a story …

The 1853 drafters of the constitution did not set out to create an elected dictatorship. The original version was modeled explicitly after the U.S. constitution, to the point where the Argentine supreme court used American SCOTUS decisions as precedent.⁵ On paper, the president was hedged around with checks and balances and powers were clearly separated, even if practice could be murkier.

But they got an unelected dictatorship in 1930, when the military seized control. The Supreme Court remained in session, though, and it validated the decrees handed down by the junta. In 1947, the Court tried to block a presidential decree ... at which point President Juan Perón impeached all but one of the justices. You won’t be shocked to find that in Ziella v. Smiriglio, the restaffed Court ruled as follows:

The decree-laws issued by the de facto government are valued by reason of their origin and since they have the force of law they continue in force even though they have not been ratified by Congress as long as they are not repealed in the only manner in which they may be so, that it is to say, by other laws.

In other words, dictatorial decrees were law unless Congress explicitly repealed them.

Still, Argentina’s many unconstitutional governments issued only 15 decrees between 1930 and 1982. When democracy returned for good in 1982, Raúl Alfonsín used the power just ten more times, mostly for small-bore stuff; his only big decree replaced the peso with the austral. 

But Alfonsín was succeeded by Carlos Menem, a Trump before Trump, a Berlusconi before Berlusconi. Menem liked executive power. He started out by increasing the size of the Supreme Court from five to nine. He then issued a decree that seized most bank accounts and replaced them with government bonds.

Angry people sued. 

But the packed court ruled that President Menem was entirely within his rights as long as Congress did not explicitly repeal the decree by passing a new law. American legal scholars will be amused to know that the Argentine justices cited Home Bldg. & Loan Association v. Blaisdell (1934) as justification for a decision ratifying exactly the sort of thing that Justices Hughes, Cardozo and Brandeis were trying to prevent.

The 1994 constitutional amendment creating the new Article 99 was an attempt to limit the decree power. It failed. Menem would go on to issue over 300 decrees. (Remember that before him there had been only 25 presidential decrees in the history of the Republic!) Congress would not even bother to create the joint standing committee until 2006. That is to say, until 2006 there was no legislative check on the president’s decree power.

Since 2006, decrees have gone to the joint standing committee, but it has never overturned a presidential decree. It is possible that the Peronists will manage to peel off one of the center-right parties and block a decree.

But that is not the way to bet.

1. You can find the laws regulating the Joint Standing Committee at this link.

2. Two from the Radical Civic Union and one each from Milei’s Liberty party, Macri’s Federal Proposal party, and another party called Federal Change, which is technically a breakaway Peronist faction but substantively a conservative party.

3. The representatives of four smaller parties are trying to get treated a single block, which would cut a seat from the U.P. (Three of those parties are breakaway Peronist factions, including the aforementioned Federal Change party.) Alternatively—and I am aware that this sounds bizarre—there are three deputies affliated with Milei’s Liberty party but who are technically not members of the Liberty party. If they can be counted as part of Liberty, then it would pick up an extra seat on the joint standing committee at the Peronists’ expense.

4. For the record, I support the Milei decrees so far, with the possible exception of the labor reforms. I haven’t yet read them closely enough.

5. In Gomez v. La Nación (1865) the Argentine supreme court just came out and said that the framers of the Argentine constitution were copying the U.S. magna carta, so American precedents would be useful and interesting but Spanish ones should be completely ignored. The Argentine high court doesn’t treat American decisions as binding, but if refers to them all the time. See Alberto Garay, “Federalism, the Judiciary, and Constitutional Adjudication in Argentina: A Comparison with the U.S. Constitutional Model,” The University of Miami Inter-American Law Review, Vol. 22, No. 2/3 (Spring - Summer, 1991), pp. 161-202