Argentina’s Senate was last week the scene of an intense debate culminating in a crucial outcome: the approval of the main article of the ‘Ley de Bases’ omnibus bill granting legislative prerogatives – or so-called “superpowers” – to President Javier Milei.
The powers are beyond the scope of those granted to most of his predecessors and the move triggers an important change in this country’s political and legislative panorama. Yet the undefined scope of this exceptional presidential allowance has opened up an uncertain panorama.
With a tight result and amid tension outside Congress, the government chalked up a key triumph for guaranteeing governability in the next few years. After the Upper House vote ended in a 36-36 tie, after a day of marathon negotiations, Vice-President Victoria Villarruel cast her tie-breaking vote in favour of approval.
The move, subject to approval by the lower house, all but gives Milei a green light to rule by decree via delegated legislative prerogatives, functioning with a similar logic to existing emergency decrees of necessity and urgency (DNU).
Even though these extraordinary powers will have to be monitored by Congress, this is a central point for Milei’s agenda, based on policies of economic deregulation and state reform – even though it implies driving a coach and horses through the Constitution.
Milei can now make use of the exceptional legislative prerogatives conceded to him for a year. A person proclaiming himself “Terminator” or “a mole” infiltrating “to destroy the state” from within has acquired ample legislative prerogatives. The panorama is unpredictable to say the least.
Among those questioning the President, Senator Cristina López (Unión por la Patria-Tierra del Fuego) stood out, declaring in her speech to the upper house that Milei “is not psychologically fit” to run the country.
On the basis of the approval of these “superpowers” permitting the Executive Branch to reform without the intervention of Congress, Milei may legislate in “administrative, economic, financial and energy” matters, according to Article 2 of the omnibus bill, which thus enables him to make broad use of these legislative prerogatives but under Congress scrutiny, hopefully working to protect the democratic and constitutional principles which sustain the Argentine political system.
the legislative
prerogatives
obtained by Milei
Even if the President is banned from legislating directly, according to Article 76 of the National Constitution, he may request exceptional attributes to attend to questions of emergency that cannot await the normal legislative process.
“Delegating legislative powers is exceptional and limited, with Congress being able to confer temporarily on the Executive Branch some of the legislative prerogatives which the Constitution grants to the Legislative Branch,” explains noted constitutional lawyer Alfonso Santiago.
Furthermore, Santiago underlines that the Legislative Branch delegates these prerogatives while conserving their ownership of them. The head of state may legislate for the duration of the period of delegation and even repeal it, if he repeals the law authorising it (Ley de Bases) while fixing the scope, duration and conditions of the extraordinary delegation.
Among the grounds justified this exceptional measure, it was underlined that it serves to attend to “the normative demand required by the adequate functioning of contemporary political systems,” which tends not to tie in with the times implied by the ordinary legislative process in Congress.
In the original text of the mega-bill, the libertarian government sought for the legislative delegation to last two years with the option of extending it a further two, a decision that was to be taken by Milei himself.
While the government made concessions when drafting the bill, reducing the period of public emergency from two years to one and the list of areas from 11 to four, its approval aroused diverse debates over the separation of powers and democratic balance.
The June 12 vote in the Senate reflected a marked polarisation with sectors both in favour and against the ‘Ley de Bases’ in general and the article on legislative delegation in particular.
Despite the objections planted by the opposition, led by Unión por la Patria and the Radical Martín Lousteau, who voted in dissidence from his caucus, the determined support of government senators and some independent sectors guaranteed the approval of the article.
How will Milei
use his powers
After arduous negotiations the ruling party reached an agreement whereby Milei’s legislative powers in emergency contexts can be used only for one year and across four areas: administrative, economic, financial and energy.
During the period of delegation by virtue of “public emergency” (Article 1 of the Ley de Bases), the President, with his signature and that of the Cabinet chief, will be able to exercise legislative functions via delegated decrees, always and when there is compliance with what is known as “the bases of delegation” as established by Congress in the bill.
But the President of a minority government – which reached agreements with whom he calls “the political caste” to secure the bill’s passage – will also have restrictions and controls which will remain in legislative hands.
Just as occurs with DNU emergency decrees, the Cabinet chief will have to send a decree to the Bicameral Legislative Commission, where both the procedure and the content, which must be adapted to the Ley de Bases and the stipulated period.
Once the committee ruling is signed, it must go through each legislative chamber for “express treatment” and will become valid unless both chambers reject it.
‘Disguised constitutional reform’
Over and above the controls established by the Argentine constitutional fabric, the delegation of legislative prerogatives to Milei has aroused all kinds of reactions, in particular the ambiguity of Article 2 of the ‘Ley de Bases’ bill as to how the President will make use of that prerogative and what “emergency” will be attached to each decree.
“Nobody has received such ample and indeterminate prerogatives without a concrete link to the emergency or the areas of public administration covered. This permits Milei a disguised constitutional reform,” constitutional lawyer Andrés Gil Domínguez told Perfil.
The expert, who was present during the Senate debate over the issue of delegated prerogatives, warned that the scope of the power to co-legislate which Milei will receive could permit him to go against international treaties with constitutional status, among them the International Covenant on Economic, Social and Cultural Rights, which obliges the Argentine state to intervene to promote human development, including the regulation of markets when necessary or the production of essential goods.
“This is a legislative transfer with a broad and indeterminate base which makes for him legislating, not co-legislating,” he indicated.
Pushback may have to come from the courts. It is the role of the Supreme Court in the final instance to safeguard the constitutional order in the face of any abuse of these legislative prerogatives on the part of the President.
In this case, Gil Domínguez explained that the top tribunal “can only question” the delegated and DNU emergency decrees “when they directly affect a right in concrete, real or particular form.”
“Only in such cases will the [Supreme] Court intervene directly,” he pointed out.
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