2023-12-22 23:33:03
“Interpreter, (noun): One who allows two people with different languages to understand each other by repeating to each one what the interpreter thinks they have said.”
Ambrose Bierce, Devil’s Dictionary1906.
1. Law as a tool of social regression.
Some interpreted the Constitution in historical cases under the promise of being the authors of a Civil Code for a generation that cannot even think regarding renting under predictable conditions. Not to mention saving to buy your own decent home. Those are the collapse encoders. Other interpreters They prioritized party loyalties, appointment favors, their ideological or religious preferences and their private businesses, being public officials to the letter of the Constitution.. Today the Constitution is interpreted with the chainsaw and that feverish interpretation – similar to the partial and truncated reading of a rich and profound figure like Alberdi – results in the decree 70/2023. A decree that has no precedent in national or international comparative law.
To stop Milei’s megadecree “simply” Law 26,122 can be declared unconstitutional of 2006 promoted by – at that time – Senator Cristina Fernández de Kirchner and faithfully apply Article 82 of the Constitution. The Constitution is clear but it takes courage to comply with it. Article 82 of the National Constitution says: “Article 82: The will of each Chamber must be expressly expressed; “The tacit or fictitious sanction is excluded in all cases.” That is, the silence of Congress cannot be taken as approval of the Decree, any decree. In conclusion: Given the DNU’s control system designed by the Constitution, the megadecree without approval from Congress is unconstitutional.
A new breed of sadistic and decadent children: refounding speeches, destructive actions
Any judge might declare Law 26,122 unconstitutional because contradicts Art. 82 of the Constitution and block the validity and entry into force of the megadecree that does not have the explicit approval of Congress by applying the rule of Art. 82. This might stop the decree en bloc, with a decision that subjects its validity to the National Congress and its Commission. Permanent Bicameral.
I doubt it will happen. The political disorientation and distraction of the protagonists is very high. Responsibility and compliance with the National Constitution is unfortunately a rarity these days. The legalistic rhetoric of the new government is as theoretically strange as its liberalism, its republicanism and its false love for a true patriot like Juan Bautista Alberdi.
2. The deepest keys to the decree are time, indignation and silence.
The most profound keys to Milei’s megadecree are three: I) the time that is passing (48 hours), II) the distraction generated by all the indignation of an impotent and foolish opposition and III) the interpretation of the silence of Congress as a rejection of the decree (Art. 82 of the CN).
The eroticism of death: necropolitics seduce a sadomasochistic society
The megadecree or a set of decrees was a certainty of the Government that began. There can be no political surprise. Its extension may surprise but should not surprise. It was all more than predictable. As we said in this note on May 25, the opportunity had been brewing for years. We literally said: “The expected stabilization of the economy and political unrest may invite us to take advantage of the historic opportunity to redesign Argentine society, to design another federalism and the same political and institutional system from within.”
Alberto Fernández did not have a government plan for his four years in office, there were no initial decrees but rather post-material and identity rhetoric. The Milei Plan included a clearly unconstitutional megadecree but which is already having effects even without having come into force. Milei’s decree has material effects beyond its manifest illegality. Quite the opposite of those who adopt a post-material conception of law and who remain citing articles of the Constitution without having built a Judicial Branch to defend or materially apply that Constitution that they claim is so important to them while in their private practice they work generating – or as judges granting exceptions to respect and compliance with the Law of Laws.
A Constitution without checks and balances at the institutional or rights level is a dead text., decorative, of mere intentions. A Constitution without division of powers more than a Constitution is a trap, a lie.
Those who are left citing articles of the Constitution are those who built a judicial power in which there are no judges to apply – with a very elementary rule of three simple legal – those articles (Art. 29, Art. 76, Art. 82 and Art. 99 paragraph 3, among others) in a sentence. The institutional vacuum in which 40 years of democracy were completed is evident.
Democratic memento mori: we forget that democracies can die
Those same judges who will not declare the Milei Government’s measures unconstitutional also have some incentive to do so. judicial populism, that is, promising that they will stop the Decree in an individual case while the Decree is being applied at a collective level. Advertise that they benefit everyone while benefiting a minority with access to courts. The judicial brake can be important but it is often cosmetic, rhetorical or benefits a few. Remember the decisions on the corralito and asymmetric pesification in 2002/2003.
To be effective, the judicial brake must first be categorical and clear like the Constitution itself.ideally from a Supreme Court that has internal tensions. Second, it must be accompanied by a political response that goes beyond political parties and alliances to fix the damage that the decree generated and repair the legislative disaster caused. I doubt even more that all this will happen. The social and political regression is so great that I preferred not to be right. My preferences do not modify reality, the actions of organized people do.
An openly unconstitutional decree has more effect on reality than the Constitution itself, laws passed by Congress or historic judicial rulings that were not executed. That cannot happen if we live in a consolidated rule of law.
The indignation of the defeated is the sign of the times. The political class that might stop the abuses remains as distracted as in all this time in which the political unrest was brewing and growing. The political class allowed this political unrest to ferment, leaven and expand. Today it seems to want to assert itself in its indignation and become a sect to continue with so many years of denial, impotence and abandonment.
Men alone, resentful and without a future: the danger of drinking macho tears
3. Decreeing is like cutting down a tree with a chainsaw.
Once the tree is on the ground it is practically impossible to return to the previous situation. The megadecree destroyed a forest of laws and rights in times of a political class lost in a desert of irresponsibility and a drought of judges who take the Constitution seriously. The Constitution disappeared from political debates with the possibility of generating agreements and future effects years ago. We are facing a notable constitutional decomposition.
The decree says let this be done and it is a legislative act but with direct executive effect. It is said and done. The synthesis of two powers of the State that contradicts the sum of public power prohibited by Art. 29 of the Constitution reformed by the Pact of Olivos of 1993.
Not an article, not a debate, not a tribute, nothing was done in 2023, thirty years following the Pact of Olivos. It is incredible that its harmful effects have not been diagnosed. Its absolute failure in the 2001 crisis and today in 2023 its “good intentions” and very low, very few, positive effects are evident. Given that the Pact did not modify the economic system, this “failure” makes it largely responsible for Argentina’s advance towards an increasingly deep and unpredictable abyss. Milei is the son of the Pact of Olivos as well as many legal studies and cross-party operational agreements that translated into political companies and businesses that were more real and operational than several of the articles of the Constitution reformed in 1994.
The Supreme Court’s public humiliation of the federal system heralds its reorganization
Milei is the son of the structural decisions of the political system in these 40 years of Democracy and 30 years of the Pact of Olivos. Milei precisely connected with majorities that the political system abandoned, brutalized and impoverished.
The hyperpresidentialism that was dormant is back, hibernating but always latent, ready to emerge once more into political action and institutional debate. Presidentialism is always hyperpresidentialism when it is necessary to make shock reforms, impoverish the majority and do business for a few. The 1994 Constitution is the Constitution of delegative democracy, more delegative than democratic. He did not attenuate presidentialism, he made its worst defects and exceptional powers such as decrees of necessity and urgency constitutional.
International Treaties look like constitutional populism in perspective and will increasingly be empty rhetoric and less substantive reality. Except for those that are post-material rights that do not require economic resources from the budget. The status of platforms, acquired by paying or through audiences, will replace the false equality of rights that are increasingly distant, less universal. Rights that are seen as privileges of a few for precarious majorities, excluded from the segments with rights.
Universal history in general and Argentine history in particular has shown that judges are – the vast majority – cruel and vile towards the poor, docile and accommodating towards the powerful and that they are not worthy of swearing by a National Constitution that They are not capable of defending even timidly.
As in the mural by José Clemente Orozco at Dartmouth College in Hannover (New Hampshire), it seems that something new and intense was brewing during all these years. The megadecree is the beginning of something that has – for now – its own political form, its own vitalism and social support. It is very likely that we are facing a fait accompli and without judicial restraint or political return. Let the primacy of the Executive Branch, of its bureaucracy, of its presidential power be demonstrated. In short, the primacy of the chainsaw over weak constitutional brakes on an outrage that affects a society as angry as it is materially harmed today.
Lucas Arrimada is a professor of Constitutional Law and Critical Legal Studies.
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