Special organic laws and presidential vetoes

The total or partial veto of a law approved by Argentina’s Congress is a constitutional prerogative attributed to the President whose main effect is to prevent it from being promulgated and transformed into applicable law. This should never be used as a tool for conflict but only understood as an exceptional instrument permitting evidently unconstitutional situations in approved laws to be corrected.

In general, Argentina’s Constitution attributes to Congress the prerogative of approving laws primarily aiming at guaranteeing fundamental and human rights, requiring for their approval an absolute majority of those members of the lower house Chamber of Deputies and the upper house Senate who are present.

The Constitution provides for the exceptional approval of special organic laws requiring greater majorities. 

Let’s take a look at two examples: Article 99.3 of the Constitution referring to the regulation of the ulterior political control exerted by Congress on the legislative attributes of the Executive Branch (DNU emergency decrees, delegated decrees and decrees partially promulgating laws) establishes that “a special law approved by an absolute majority of the totality of the members of each House will regulate the procedure and scope of Congress intervention”; Article 114 of the Constitution regulating the Council of Magistrates requires “a special law approved by an absolute majority of the totality of the members of each House.”

From a merely formal perspective, all the laws approved by Congress (in general with an absolute majority of the members present but an extra majority for the special organic laws) are subject to being vetoed by the Executive Branch without distinction or in “equal conditions.”

A different focus seems to emerge if we adopt an outlook substantially sustained by republican principles of government (including the separation of powers). In such case, when a special organic law is at stake, the presidential prerogative of veto is significantly reduced, resulting in a stronger argument needed to justify the inhibition of bills approved by the Congress. In other words, when a president resolves to veto a special organic law, they are obliged to present a constitutional argument which is more rational than when vetoing ordinary legislation.

Let us return to Article 99.3 of the Constitution. Law 26,122, which regulates the ulterior political control exerted by Congress on the legislative prerogatives of the Executive Branch (including DNU emergency decrees), currently contains several articles which, contrary to the Constitution, permit the head of the Executive Branch to govern while totally ignoring Congress. 

The approval of a law aimed at amending Law 26,122, with the effects of boosting republican principles of government and complying with the mandate of the Constituent Assembly regarding the exercise legislative prerogatives being exceptional on pain of being absolutely quashed, would acquire an organic republican epistemic status which would substantially limit the Executive Branch’s capacity to veto. 

A veto in this context would constitute an objective weakening of the institutional order and the democratic system. 

In addition to the constitutional control of a veto of these characteristics, the presumption of this being unconstitutional should be adopted from a starting-point based on respect for republican principles of government, the prohibition of extraordinary powers over all three branches of government, an interdict to ban autocracy and a guarantee of the separation of powers which absolutely quashes the constitutional status of the exercise of legislative prerogatives by the Executive Branch.

Special organic laws and presidential vetoes, an issue to be borne in mind which will shortly be transformed into an intense republican debate possibly defining the constitutional strength of the Argentine democratic system.

* Andrés Gil Domínguez, Law doctorate (UBA), is a professor of constitutional law (UBA-NLPam).