The DNU 70 is a rare specimen of its kind. Its field of application is very wide and this, at the same time, is its greatest weakness and strength. Hence the large number of objections (some confusing and poorly explained) that we saw recently in the debate in the Senate. The first group of objections is that it is a Decree of Necessity and Urgency; the second, the solutions it proposes and the third, the infinite number of topics it covers. The reality is that the DNU is as difficult to defend as it is to attack it; At least if we stick to what the Supreme Court says.
We constitutionalists look at the DNU with suspicion: they break the division of powers because they are a law issued by someone who, in theory, cannot do so. The Constitution establishes: “The Executive Branch may not in any case, under penalty of absolute and irreparable nullity, issue provisions of a legislative nature.” He then softens this postulate by saying: “Only when exceptional circumstances make it impossible to follow the ordinary procedures provided for by this Constitution for the sanction of laws (…) may decrees be issued for reasons of necessity and urgency” (art. 99.3).
This wording opens two levels of analysis. One legal and the other political, which the Supreme Court has tried to resolve in a long list of rulings.
What does the Court say? Firstly, the President cannot freely choose between issuing a DNU or proposing a law (according to the “Argentine Consumers” ruling). The DNU is only justified when it is impossible to convene Congress (for example, a natural disaster) or when the situation is so urgent that it requires a solution within a period incompatible with the normal processing of laws (according to the “Verrocchi” ruling). .
Secondly, that the measures established in the DNU are aimed at alleviating a situation “of rigorous exceptionality and urgency” (as stated in “Blanca Azucena Morales”) and, on the other hand, when this situation is such that it puts the normal functioning of the institutions (as stated in “Pino Seberino”).
At this point is where the legal analysis mixes with the political one. And where the Court moves with more caution.
The Court (for example, in “Argentine Association of Insurance Companies”) maintains that judges can verify whether the urgency exists that justifies issuing the DNU; But determining whether the measures it contains are useful to solve the crisis is a political assessment.
Let’s go back to DNU 70. The threat of hyperinflation would seem to justify this path instead of the legislative one and the measures adopted (the DNU expressly says so) are aimed at avoiding it. But the central question is whether this long list of modifications and repeals of laws that it contains are “the solution” to the current crisis.
The idea underlying the DNU is that state intervention is bad, and that it must be dismantled. Its objective would be to free us from a tangle of laws that suffocate the economy. Under this budget it is understood that the DNU deals with issues as heterogeneous as soccer or yerba mate. Now, this responds to a political conviction of President Milei, but if Congress (the majority) considers that this path is incorrect and is convinced that state intervention is good, it could reject the DNU. That is the place of politics.
What space is left for the judges? One that is quite small and at the same time quite broad. They could not declare the DNU unconstitutional arguing that the measures are not appropriate, because it would imply interfering in (political) decisions of the other powers of the State. And this is its strength.
What they can do is analyze whether any of these reforms substantially limit individual rights. And this is its weakness.
This limitation cannot be any but “substantial”: affecting the right with such intensity as to nullify it. What we lawyers call the essential content of rights: laws can limit rights, but not make them disappear.
The problem is that the DNU, in this enormous number of reforms, could affect (substantially, I insist) rights. The strength of the DNU is that (if there is an urgency that justifies its issuance) it can only be rejected by Congress; and the judges, due to what was previously stated, could not advance on that path. On the other hand, the weakness of the DNU is in the details: perhaps, at some point, a very specific reform to a law affects (substantially!) individual rights and there the judges could issue a ruling.
The author is a professor at the Faculty of Law of the Austral University. Author of the disclosure account @supremadefallo
Source: Ambito
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