I. Introduction

Scholars agree that in Argentina there has been a permanent economic emergency for virtually one century. In 1922, the Argentine Supreme Court in the Ercolano case recognized broad police power and, in particular, emergency police power. Since then, branches of government have issued many economic and social emergency regulations. Resorting to the doctrine of emergency, far from being exceptional, has virtually become the regulation. The importance of the danger entailed by this endemic situation lies in that economic emergency regulations, as any other exceptional concept, have two key elements: on the one hand, they allow for the restriction of individual rights, especially economic liberties; on the other hand, they increase the powers of one of the branches of government, namely, the Executive. This is why the use of emergency powers must be subject to clear and specific requirements to be valid, and these requirements must be met by the bodies with the authority to declare the emergency. But reality shows that these requirements have not been met in constitutional practice and, at the same time, courts have been excessively deferential to the measures adopted by the branches of government.

My purpose in this article is to study the birth of the doctrine of economic emergency in Argentina and its evolution in the cases decided by the Argentine Supreme Court. Unlike the state of siege, which had been included in the original version of the Argentine Constitution, the concept of economic emergency has had no constitutional regulation, and its contents have been outlined by the decisions of the Argentine Supreme Court. I also elaborate on the multiple regulatory mechanisms to tackle economic crises. The declaration of economic emergency is the faculty of the Argentine Congress, in principle. Throughout decades, the Executive has been adopting a more important role, so declarations of emergency were made via the legislative powers of the president -in particular, legislative delegation and decrees of “necessity and urgency”-. In addition, I will pay special attention to the requirements for economic emergency regulations to be valid, including the actual existence of a state of emergency, a public interest, that the measure be reasonable, and the provisional nature of the emergency. While these requirements have been outlined by the Argentine Supreme Court very early in time, the truth is that no appropriate judicial review over economic emergency regulations has been exercised. Because of this, I will propose some guidelines for an effective judicial review of this topic and, ultimately, to put an end to the endless emergency.

II. The Doctrine of Economic Emergency in Argentina

Constitutional law draws a dividing line between normal situations and exceptional situations. Constitutions establish a set of mechanisms regulating certain situations which are considered to be normal and foreseeable. But there are certain extraordinary situations for which standard constitutional resources may not be sufficient. In fact, the Constitution establishes a given project in connection with a normal and foreseeable situation, but it may suddenly be confronted with a different situation, which had not been foreseen, so it may be faced with the impossibility of ensuring its own effectiveness. As a response to this crisis situation, many constitutions incorporate an alternative way of organizing power which entails the provisional denial of the original constitutional order.¹ Therefore, in the exceptional scenarios when the general regulation established in the constitution cannot be applied, exceptional measures need to be adopted. But to apply these measures the new situation must really be rare and, thus, be limited in time.²

The Argentine Constitution has not been alien to these issues, so exceptional mechanisms have been included in it to tackle exceptional situations, outside the normal periods which the Constitution is intended to govern in a usual and permanent manner. While the gamut of emergencies is extremely varied, three categories may be identified:³ war, domestic disorder, and economic crisis. Up to the constitutional reform of 1994, the Argentine Constitution had regulated only one exceptional mechanism -the state of siege-. Section 23⁴ establishes this mechanism in the event of war (actually, “foreign attack”), and “domestic disorder”.

On the contrary, unlike the state of siege, economic emergency in the beginning had no place in the formal Constitution, but it was part of customary constitutional law, which produced a series of regulations -mainly court-made in nature- in connection with the conditions and limits of the emergency law stated in the laws and decrees that had declared and applied it.⁵ After the 1994 constitutional reform, two additional types of exceptional mechanisms were admitted: legislative delegation and decrees of necessity and urgency,⁶ both of which include economic emergency. Section 76⁷ of the Argentine Constitution refers to “public emergency” to admit, under exceptional circumstances, the legislative delegation to the Executive “with a specified term for their exercise and according to the delegating conditions established by Congress”, and Section 99(3)⁸ sets forth that the Executive may issue decrees on grounds of necessity and urgency only “when due to exceptional circumstances the ordinary procedures provided for under this Constitution for the enactment of laws are impossible to be followed, and when regulations do not involve criminal issues, taxation, electoral matters, or the system of political parties”.

Authors have established a similarity between the state of siege and economic emergency, because just like the political state of siege, established under Section 23 of the Constitution, strongly limits rights with personal content, economic emergency entails an “economic state of siege”, given that the regulations declaring the economic emergency strongly restrict rights with economic content.⁹

After having mentioned the constitutional regulations which are the basis for economic emergency nowadays, now I want to elaborate on the origins of this mechanism in Argentina. Emergency in the economic and social arena has been connected from the beginning with the concept of police power, which was born in American law,¹⁰ and it has been alleged that it is “famously broad and equally famously vague”.¹¹ While the Argentine Constitution, like the American Constitution, has no specific provision regarding police power, the existence of a police power has been asserted since the inception of constitutionalism, both by courts and by scholars. But it must also be noted that there are constitutional provisions which are the regulatory basis for the police power, such as Sections 14¹² and 28,¹³ mentioning the restriction of rights and guarantees.¹⁴ Police power is generally defined as the prerogative that the Government has to regulate or limit the exercise of individual rights to ensure certain purposes, with the resulting effect of limiting individual rights to make such concrete purposes effective. There is a narrow conception of the police power, including safety, public health, or morality,¹⁵ and a broad and plenary conception, conceived in the United States, adding well-being.¹⁶ The emergency police power is contained in the second conception.

In connection with the recognition of the exercise of the broad police power, the Argentine Supreme Court has closely followed the American Supreme Court, and there even are authors who have propounded that the Argentine Supreme Court has seen the American Supreme Court as an authority.¹⁷ Scholars have stated that Argentina has experienced the same change in court opinions as the one that has taken place in the United States. At the outset, the model chosen entailed a broad protection of private property and contractual relationships -the Lochner ¹⁸ case is an example-. Afterwards, the depression of the 1930s forced the adoption of emergency measures, so the age of non-interventionism started to decline rapidly with the judgments in the Home Building and Loan Association v. Blaisdell,¹⁹Nebbia v. New York,²⁰ and West Coast Hotel v. Parrish ²¹ cases.²²

Similarly, in Argentina at a first stage there was a “liberal” conception, favoring the effective validity of the law to the detriment of the lawmaker’s regulation powers; the landmark case is Hileret.²³ At the second stage, this interpretation changed, with the idea that certain regulations, which were more or less intense, of economic rights were not inconsistent with the Constitution. This stage begins with Ercolano,²⁴ in which a regulation limiting the prices for urban leases was validated. The trend was consolidated in Avico,²⁵ affirming an extension in mortgage payment terms. Finally, the trend became established, first, in Cine Callao,²⁶ admitting a law requiring owners of cinemas to include live performances, and then in Peralta,²⁷ in which a decree limited the repayment of term deposits, paying the remainder with public debt bonds. Because of the deep economic crisis in Argentina by the end of 2001, the Argentine Supreme Court handed down decisions like Smith,²⁸San Luis,²⁹ and Tobar ³⁰ which could have led to think that there was going to be a change in the case law which broadly admitted limitations to economic liberties. In the end, the Argentine Supreme Court ratified the measures to tackle the 2001 crisis in Bustos ³¹ and Massa,³² so it can be said that the Court continued with the line of broad deference to economic regulations.

The Argentine Supreme Court clearly referred to the emergency police power in Russo,³³ where it repeated its prior doctrine on this matter.³⁴ In that case, the Court clarified that it had abandoned the restrictive doctrine adopted in old decisions, and that it came to embrace a broad and full notion of the police power, one of whose elements is emergency. The Court established that an emergency situation is a factual requirement, i.e. the existence of crisis or serious social turmoil, and that given the need to face the damage or risks created as a result of this emergency situation and to erase or mitigate its effects, the regulatory power of the Congress is broader and deeper and entails that the Government is more involved in regulating rights. The Court said that in those cases there is an intensification of government power and that mechanisms or procedures which would otherwise not be valid are actually valid. “It is not that the emergency gives rise to a new power-it simply authorizes the exercise of an already existing power with more energy. Extraordinary events… require extraordinary remedies”.

Some authors have highlighted that the doctrine of emergency ceased to be justified in the exercise of the emergency police power, and the matter was to be analyzed in light of the state of necessity,³⁵ as some started to make express reference to the fact that the steps taken were necessary to ensure the “continuity and survival” of national union.³⁶ Sagüés has made a very accurate analysis of this issue and has clearly stated that emergency law is a chapter of the necessity law, albeit subject to different requirements.³⁷

Later on, the doctrine of economic emergency has been clearly explained by the Argentine Supreme Court in Risolía de Ocampo:³⁸

When a situation of crisis or public necessity requires the adoption of measures to protect general interests, it is possible, without violating or eliminating any guarantees protecting economic rights, to delay, within reasonable limits, the performance of obligations stemming from acquired rights. It is not about recognizing degrees of omnipotence to the lawmaker or excluding the lawmaker from judicial review, but about not depriving the Government from any government measures deemed to be useful to bring relief to the community. Therefore, if a regulation is passed based on necessity reasons which does not deprive individuals from the economic benefits legitimately recognized or does not ignore the individuals’ ownership over such benefits, but only provisionally limits the receipt of the benefits or restricts their use, there is no violation of Section 17 of the Constitution. This would just amount to a limitation imposed based on the need to mitigate or overcome a crisis situation. The Argentine constitutional system does not have any absolute rights and all rights are subordinated to the laws regulating the exercise thereof.

While the decisions of the Argentine Supreme Court have admitted the restriction of rights with economic content based on the doctrine of economic emergency, the truth is that it has established certain requirements for the validity of the regulations entailing any such restriction. The different requirements ensuring that exercising the power of emergency is valid were systematically discussed by the Supreme Court in 1934, in the Avico ³⁹ case, which drew on the American precedent Home Building and Loan Association v. Blaisdell.⁴⁰ While these requirements have been thought for a specific case, there can be no doubt that they are useful as a guiding standard for other decisions.⁴¹ These requirements are: (1) that there be an emergency requiring the exercise of exceptional powers to protect the key interests of the society; (2) that the law be aimed at satisfying a legitimate interest and not to benefit a particular group of individuals; (3) that the remedy applied be proportionate and justified in light of the emergency; (4) that the term under the law be reasonable and do not harm any of the parties; and (5) that the law be valid for a provisional period, limited to the emergency which caused it. While these guidelines are clear to outline the contour of the constitutionality of an emergency measure, the courts have admitted the validity of many regulations which did not comply with the requirements mentioned at all.

III. Normative Mechanisms to Declare Economic Emergency

There are different types of legal regulations which may be used to establish more intense limits to the exercise of rights based on the existence of economic emergency. In principle, the Congress is the branch of government which has the power to declare the situation of economic emergency. Under Section 76 of the Constitution, the Congress also has the power to delegate to the Executive any powers required to put an end to economic emergency. In the event there is economic emergency and the requirements for necessity and urgency are met, the Executive may use the power under Section 99(3) of the Constitution and issue a decree of necessity and urgency.⁴²

At the beginning, the Supreme Court accepted the stricter regulation of personal rights, especially property rights and the right to enter into contracts, and the Congress passed laws regulating those matters in the exercise of the police power. The Congress passed these laws based on the current wording of Section 75(18),⁴³ the so-called “progress clause” and Section 14, stating that rights are exercised in consistency with the laws regulating their exercise. In connection with the interpretation of the first of the precepts mentioned, it has been said the Supreme Court transitioned from admitting an increasing intervention of the Government on economic and social matters, based on the need to secure the general welfare and progress, to validate the remedies designed by the Legislature to solve any sectorial or general crisis.⁴⁴

In many decisions, the Argentine Supreme Court affirmed the constitutionality of multiple regulations passed in exercise of the emergency police power, such as the regulation of urban lease prices,⁴⁵ the extension of mortgage payment terms and the reduction of interest rates,⁴⁶ the stay of evictions,⁴⁷ maximum prices in first-need products and goods,⁴⁸ and the obligation to hire certain persons due to unemployment in a given industry,⁴⁹ among many others.

There are two other normative instruments to tackle economic emergency, i.e. the legislative powers of the president: legislative delegation and decrees of necessity and urgency. As both normative devices had been used frequently, even if they were not expressly included in the Constitution, the constitutional reform incorporated them with the purpose of limiting them. Actually, during the constitutional debates in 1994, it was highlighted that one of the purposes of the reform was to generate a new balance in the operation of the three classic branches of Government -the Executive, the Legislature, and the Judiciary- and, therefore, to mitigate the presidential system, to strengthen the role of the Congress, and to attain more independence for the Judiciary. On that issue, the Supreme Court has noted that with firm and explicit wording the Argentine Constitution imposes a limitation on the president as a general regulation to pass provisions which are legislative in nature, whether on the president’s own motion (Section 99[3]) or by virtue of a delegation made by the Congress (Section 76). Both sections, after establishing the principle, also state the conditions or limits under which the president is exceptionally empowered to exercise legislative functions. The wording of the constitutional text (Sections 99[3] and 76) unambiguously reflects the decision taken by the 1994 Constitutional Convention of, on the one hand, maintaining the general principle against the exercise of legislative powers by the president as a standard practice and, on the other hand, to introduce more details about the exceptional conditions under which that may take place. The definition of the general regulation and the exceptional cases in the same constitutional text, as well as the procedure ultimately adopted to ensure the proper operation of both, is the correlation of two basic purposes of the constitutional deliberation: the mitigation of presidentialism and the more effective operation of the federal government.⁵⁰

As explained, while legislative delegation had not been included in the 1994 constitutional reform which incorporated article 76 mentioned above, such device was admitted in the constitutional practice even if it had not been expressly provided for. Anyway, the delegations were based on Section 99(2) of the Constitution, establishing that the Executive “issues the instructions and regulations necessary for the enforcement of the laws of the nation, without altering their spirit with regulatory exceptions”. These regulations are known as enforcement decrees or decrees regulating laws, and are based on Section 16 of the 1812 Cadiz Constitution. The president issues any such decrees when the application of the laws so requires, considering how accurate they were as enacted by the Congress. A minority portion of authors considered that legislative delegation was based on the doctrine of the implicit powers of the Congress, under the old Section 67(28) of the Constitution, now Section 75(32).⁵¹ At the same time, there are authors who claim that there are two spheres of legislative delegation in Argentina: a general sphere, including any delegations made to any bodies other than the Executive, based on Section 75 (32); and another specific sphere, which is the one expressly and strictly regulated under Section 76 with the purpose of controlling and mitigating presidential power.⁵²

On this aspect, the Argentine Supreme Court issued the Delfino ⁵³ leading case, in 1927, establishing that there was a key difference between the delegation of power to make the law and to grant certain authority to the Executive or an administrative body, so as to “fill up the details” needed for the execution of such authority. Later, the Argentine Supreme Court went further to state that the regulation should be beyond the details of the law. In Prattico,⁵⁴ it admitted the constitutionality of a decree which had established a minimum rise in salaries given the emergency situation that prevailed at that time, as the “legislative policy” had been “clearly established”. Afterwards, the Supreme Court recognized that its decisions had admitted the delegation of legislative powers beyond the regulatory power in the current wording of Section 99(2) of the Argentine Constitution, such delegation being subject to the limits of Section 28 of the Constitution, i.e. reasonableness.⁵⁵ The admission of legislative delegation to the Executive has deepened in time, being admitted with increasingly broader standards. In Cocchia,⁵⁶ the Court affirmed the validity of a decree amending a port activity collective bargaining agreement, as it observed the “legality block”. In connection with this first stage before the constitutional reform, Sagüés has clearly said that in the Argentine Supreme Court there was a solid jurisprudential trend that “based on puns and normative costumes, consents to actual delegations of congressional powers to the president, covered by the blanket of the exercise of regulatory powers”.⁵⁷

As it was standard practice to make delegations, the 1994 constitutional reform admitted the legislative delegation and subjected it to multiple requirements. The Constitution states that “legislative delegation to the Executive is forbidden except for certain matters in connection with administration or public emergency, with a fixed term for its exercise and within the basis for the delegation established by the Congress”. What we see here is that the Constitution establishes a general principle forbidding the delegation to the Executive and, subsequently, establishes the exceptions that may be admitted. For the delegation to be valid, three basic requirements must be met: that the delegation be limited to administration or public emergency matters; that the decrees be issued within the term set for their exercise; and that the decrees adjust to the delegation basis established by the Congress. Section 100(12) adds a fourth requirement-that any such decrees be affirmed by the Chief of the Ministerial Cabinet and subject to the control by the Argentine Permanent Bicameral Committee. Especially in connection with the term “public emergency”, authors have criticized that its meaning is not clear,⁵⁸ as resorting to public emergency is “no limit to the Argentine institutional reality”.⁵⁹ The term “public emergency” is an indeterminate legal concept, and it may cover multiple types of emergencies, such as natural, political, military, administrative, but also economic and social emergencies.

But it cannot be said that the guidelines in the Constitution have been useful to limit the way in which the legislative delegation has been used. Law No. 25561 was enacted to tackle the 2001 crisis and, under the provisions of Section 76 of the Constitution, declared the public emergency on social, economic, financial, and foreign exchange grounds, and delegated to the Executive various powers for two years. However, such regulation has been extended nine times and has been valid until December 2017, even when the declaration of social emergency was extended to December 2019. It is a problem that the regulation has been in force during an extremely long period, but authors have also highlighted that the delegated powers were dangerously close to the prohibition under Section 29,⁶⁰ providing that the Congress cannot give all public power to the Executive.⁶¹

Another mechanism used to tackle economic emergency is the decree of necessity and urgency. As explained, this mechanism had not been included in the Constitution until the 1994 constitutional reform. It may be said that decrees of necessity and urgency were forbidden in the beginning. Afterwards, they were admitted, but only as an exception. Their use in practice, however, is regular. The Executive used this tool in the past, for example, in the creation of the “Austral” currency in 1985 with the purpose of tackling the economic crisis in the country at that time.⁶² Another example: in 1990 a decree was issued ordering the repayment of term deposits and the surplus was paid with external bonds.⁶³ Both decrees were affirmed by the Supreme Court. In Peralta, the Supreme Court held that the decree was constitutional because of the “serious social risk” situation and the “generalized economic turmoil”. The constitutional reform incorporated Section 99(3) with the purpose of regulating these decrees so that their use was limited. First, a general prohibition against their use was provided for -“the Executive Power shall in no event issue provisions of legislative nature”-, and it admitted issuing a decree based on necessity and urgency “only when due to exceptional circumstances the ordinary procedures established under this Constitution for the enactment of laws are impossible to be followed, and when regulations do not involve criminal issues, taxation, electoral matters, or the system of political parties”. The Constitution also set forth a procedure for the ratification of those decrees by the Congress. In such procedure the Permanent Bicameral Committee must be involved, and next the matter must be treated by each of the houses of the Congress, the House of Representatives, and the Senate. However, authors have seriously criticized this regulation: “[t]he way in which the Argentinian constitution regulates emergency decrees is probably one of the worst in Latin America” because “nothing in the constitution deters the president from using emergency powers in an unjustified way if he has the required majorities in one of the houses of congress”.⁶⁴ Sagüés also considers that the drafting of the section is faulty, as it is an incomplete regulation, which does not design the final procedure of decrees of necessity and urgency.⁶⁵

IV. Consequences of Economic Emergency and Permanent Economic Emergency

Economic emergency in Argentina, far from being an exceptional situation, is normal and standard. Virtually all authors agree on this point. Authors specializing in constitutional law,⁶⁶ administrative law⁶⁷ and other areas⁶⁸ agree that Argentina suffers from permanent emergency, and have proposed putting an end to it, as the effects of such emergency are devastating.⁶⁹ It has been claimed that emergency is an everyday reality, and that the exceptional law has become standard practice,⁷⁰ so the concept of “emergency” has been used and abused.⁷¹

The specific issue with this matter is that economic emergency, like some other exceptional mechanisms, has two distinct features: certain prerogatives of power are increased, reinforcing a given body of power; and they create a restriction on individual liberties, rights, and guarantees, especially economic liberties.⁷² Article 16 of the 1789 Declaration of the Rights of Man and of the Citizen provides that “[a] society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all”. Economic emergency precisely undermines these two aspects. On the one hand, serious restrictions of these rights have been admitted throughout decades, which significantly harms the rights recognized under the Constitution. On the other hand, the principle of the separation of powers has been affected, as economic and social crises have given rise to more demands from the Government, and the Executive has adopted a key role in the adoption of measures to tackle the economic emergency.⁷³ Actually, the limitation on economic liberties, mainly the right to property and the liberty to enter into contracts, was made by passing laws. Afterwards, the limitations took effect mainly through decrees of necessity and urgency, and legislative delegation. Along this line, it has been highlighted that economic emergency alters institutional roles: “This is made for the Executive, as it is the only body that makes it on time. The Legislature affirms the measure. Sometimes, the Judiciary amends its effects”.⁷⁴ That is why authors are right in pointing that the state of emergency is inversely proportional to the rule of law.⁷⁵ When the Executive resorts to the doctrine of economic emergency, legal uncertainty grows exponentially in the rule of law.⁷⁶ While the Argentine Constitution is a rigid constitution, in Bryce’s terms,⁷⁷ as a result of Argentina’s “endemic” economic emergency, we have come to have a flexible Constitution system, which may be modified at the Congress’s or the Executive’s discretion.⁷⁸ It has been said that the doctrine of economic emergency has been systematically repeated to justify the submission of the Constitution to political powers.⁷⁹

Another matter that needs to be considered in connection with the evolution of the doctrine of economic emergency in Argentina is that since the Ercolano case, which recognized the emergency police power, and its deeper discussion in Avico, emergency cases usually had to do with social or economic and social emergency, or cases in which the society was affected, but the matter was not extended to the Government itself.

In many decisions the Argentine Supreme Court declared the constitutionality of many regulations passed in exercising the emergency policy;⁸⁰ extension of lease contracts, i.e. stay of the lessor’s right to obtain the delivery of the leased property and a reduction in lease payments agreed upon by the parties;⁸¹ extension of mortgage payment terms, i.e. stay of “any legal remedies or actions against debtors”;⁸² stay of evictions;⁸³ maximum prices for first-need products or goods,⁸⁴ among other matters. After that line of court decisions -the Peralta case may be considered square one- the emergency police power was extended also to the emergency affecting the Government itself, especially considering public deficit. Also, as we have already seen, a large number of powers of various types were granted upon the Executive. In other cases, the Argentine Supreme Court validated the system to fix salary increases by the Executive and, therefore, the abrogation of conventional rules regulating wages;⁸⁵ the limitation of the repayment of term deposits, paying the excess with external bonds;⁸⁶ the consolidation of the Argentine Government’s debts;⁸⁷ the reduction in public employees’s salaries,⁸⁸ and when the salary decrease ceased, the return of a certain percentage of the discounted sums with the delivery of public securities;⁸⁹ the staying of the enforcement of court judgments and arbitral awards ordering the payment of a sum of money entered against the Argentine Government⁹⁰ and the “pesification” of public debt bonds issued by the Argentine Government in U.S. dollars,⁹¹ among others.

V. Judicial Review of Economic Emergency

The existence of a continued application of economic emergency regulations would not have been possible without the deference of the courts. Throughout decades, the Argentine Supreme Court has tolerated the measures adopted by the branches of government based on economic emergency, admitting in some cases clear violations of rights protected under the Constitution, even if the requirements for the declaration of the emergency were not met.

This issue has been identified by the Court itself, when it said that the history of its decisions shows an extremely broad approach regarding admissible restrictions,⁹² and that this is an approach requiring correction, as its institutional effects have been devastating, given that the rule of law needs a stable system of regulations at the base and not its disregard due to urgent needs.⁹³ The study of the main decisions by the Argentine Supreme Court regarding the extent to which the right to property may be affected based on economic emergency shows the clear preponderance of an interpretation tolerating broad restrictions.⁹⁴ Authors have said that the review of the reasonableness of economic emergency regulations made by the Argentine Supreme Court has been weak⁹⁵ and shallow.⁹⁶

Historically, courts have been deferent to the measures adopted to tackle economic emergencies.⁹⁷ The deference to such regulations has been so extreme, however, that it has been even said that economic emergency is a covered political matter. Bianchi actually maintains that while economic emergency has not been dealt with by the courts as a non-justiciable political question, the Argentine Supreme Court has never analyzed in depth the real causes of the economic emergency, or the reasonableness of the measures in light of the causes, so the Court has acted as if this matter would have been excluded from judicial review.⁹⁸

In this context, I believe it is appropriate to propose some guidelines for an appropriate judicial review of this matter. First, it is necessary to highlight that the declaration of economic emergency and the factual circumstances underlying such declaration is a question subject to judicial review, and these issues are not non-justiciable political questions.⁹⁹ While the Argentine Supreme Court has admitted that the situation of economic emergency and its declaration are subject to review, I agree with the authors who believe that this issue has been discussed by the Supreme Court as if it were a covered political matter, as the Supreme Court has dogmatically accepted the existence of the emergency as presented by political powers in all instances. My position is that the situation of economic emergency and its declaration through a regulation are a justiciable question. This means that a court has the power to declare that an emergency regulation is unconstitutional when an alleged emergency situation is not such, i.e. when it is false, and therefore may be subject to objection under the Constitution. The consideration of the reality made by the Legislature or, if applicable, the Executive faced with a situation or event considered to be an emergency situation or an event is a justiciable question.

Now, considering the judicial review of economic emergency regulations, one needs to ask whether, in the event of any exceptional circumstances, it is the duty of courts to be more deferent to the measures adopted by the public authorities than during normal times, if it is appropriate to exercise a more intense control or, ultimately, if the judicial review should be as strict during normal times as during exceptional times. Considering the serious excess incurred on this matter during decades, I believe that the judicial review over these regulations should be stricter than during normal times. Not only because the economic emergency admits a higher restriction of economic rights and entails a temporary limitation of the principle of separation of powers, but also because historically there has been abuse by branches of government and scarce judicial review.

2. Two Dimensions in Exercising Judicial Review over Situations of Economic Emergency

In exercising judicial review over situations of economic emergency and its normative declaration, two dimensions may be considered. First, timing, and, second, the correlation that must exist between a regulation -law, legislative delegation, or a decree of necessity and urgency- and the emergency situation it is intended to fight against.

I believe that the time of validity of a regulation may be considered as a factor to establish the scope of the judicial review of an emergency regulation. We need to remember that emergency must be temporal and subject to a brief term, even if this has not been the case of Argentina. Four situations may be identified. First, there is the situation of the scope of the judicial review of the emergency situation at the beginning of the emergency. While the legislative powers of the president must always be interpreted restrictively, in connection with economic emergency formal laws, it may be maintained that at first the courts should be deferential to the regulation adopted and the factual circumstances alleged. This matter has been discussed by Chief Justice Rosenkrantz “more deference should be granted to the government when the emergency has just started than when the emergency has been ongoing for a significant period of time”.¹¹³

The fact that courts should have different approaches does not entail that the branches of government are exempt from justifying their decisions. While at this stage it is not appropriate to demand full evidence by political powers with respect to the emergency situation invoked to resort to the exceptional emergency law, in adopting these measures it is necessary to somehow establish the exceptional situation. It is not enough that the Government dogmatically states that there is an emergency. It is true that economic emergency situations require quick governmental action. But, even when these exceptional circumstances demand an urgent solution, any decisions adopted must be reasoned, and must be based on the factual circumstances they seek to fight against. In light of the loose judicial review historically exercised, it is appropriate to state that in the case of emergency regulations the need for justification is all the more necessary. To start with, the Government must provide arguments for the existence of the factual circumstance of the emergency; in the event of a law, in the message of the bill, in the work in congressional committees, and during the congressional debate. In connection with the legislative powers of the president, in the grounds of the measure, as well as in the file for the measure. This will force the Congress or, if appropriate, the Executive to make a deeper analysis of the existence of the emergency factual circumstance and the measures aimed at fighting against it. This need to provide grounds will somehow result in better analysis of the measures adopted and, therefore, in better regulation.

First, considering this requirement to provide grounds, it is questionable that the Argentine Supreme Court has many times said that the situation of economic emergency is public and evident,¹¹⁴ as in court proceedings evident events are exempt from evidence. I believe that it would not be enough to merely admit the situation of economic emergency based on that statement, but that it is appropriate to demand from branches of government more grounds regarding the actual existence of a situation of emergency, and from the courts, a deeper analysis of the matter. That the judges get to know the details of a given situation of emergency is important not only to verify the existence of a true factual circumstance of emergency, but also to establish the end of any such emergency and to review the reasonable relationship between the emergency measure adopted and the emergency situation alleged.

Second, it is necessary to remember that for an emergency law to be valid, it is necessary that it be temporary, i.e. that it be subject to a given term. As the economic emergency is an exceptional situation, it is reasonable to demand that the term be short. It may happen that a regulation intended to tackle the economic emergency is repeatedly extended. In this case, it is appropriate to say that the regulation deserves a higher intensity of judicial review, so the deference to what the political powers have decided decreases. When an emergency measure is extended, further evidence establishing the situation of emergency must be furnished.

Third, it may happen that the economic emergency regulation continues to be extended in time, but afterwards the situation of emergency no longer exists. In the event that the situation of emergency invoked in a given regulation afterwards disappears, it would be appropriate to invalidate the regulation based on the lack of a constitutional cause that justifies its validity, as the powers granted would lack the exceptional circumstances justifying it. This means that the declaration of unconstitutionality after the facts is admitted. The Argentine Supreme Court has admitted the possibility of declaring the unconstitutionality after the facts of a regulation in several cases.¹¹⁵ In connection with the economic and social emergency, the Argentine Supreme Court held in Mango¹¹⁶ that the crisis that had justified a housing emergency law did not exist anymore, so the regulation became unconstitutional.

Fourth, it is necessary to consider the possibility that the emergency regulation is evidently inadequate. It could happen that the emergency regulation be extended for a long period of time, but that the situation of emergency persists. The unreasonableness of the means applied on the basis of inadequacy should be assessed. If the emergency regulation remains valid for a long period and the means applied are not adequate to tackle a given crisis, the review of the reasonableness of the regulation may determine that the measure is not adequate to attain the purpose it seeks. In any case, courts should exercise judicial review with particular care on this matter.

Moreover, I am of the opinion that there must be a relationship of adequacy -or “connection of sense”-, in the wording of the Spanish Constitutional Court, between the emergency measure adopted and the emergency situation invoked.¹¹⁷ In fact, it could happen that measures be adopted which are allegedly aimed at tackling a specific economic emergency situation, but in the absence of proper grounds, the courts may hold that the measures adopted have no adequacy relationship or connection of sense, directly or indirectly, with the specific factual situation that the regulation is intended to face. On this point, it is appropriate to mention the case of Law No. 25561. In 2002, such regulation declared the public emergency on social, economic, administrative, financial, and foreign exchange matters, and delegated the powers included in the law to the Argentine Executive until the end of 2004. The regulation was in force until December 2017. Regardless of whether the means used were adequate to the purpose sought by the regulation, more than fifteen years after it was passed, it is considered that it cannot be validly said that the factual circumstances on which the approval was based continued.

3. Judicial Review of the Existence of an Actual Situation of Economic Emergency

Now, leaving aside any matters relative to the control regarding timing and the adequacy relationship, I want to highlight certain criteria which the courts may adopt to check the existence of an actual situation of economic emergency.

One of the parameters considered to be correct in the judicial review of the situation of economic emergency is taking into account the Government’s own acts. The judicial review of the actual economic emergency situation must not be limited to the verification of the formal declaration of emergency in a given regulation, but it must also consider other regulations -whether laws or decrees- issued by the Government itself, as those regulations may reveal governmental activities which are not consistent with the emergency situation officially declared. This would amount to normative inconsistency. Hence, this would permit to declare the unconstitutionality of such declaration, considering the lack of constitutional cause giving validity to the emergency regulation. This matter has already been discussed in Mango, already cited, in which, faced with housing shortage, leases were extended and owners were deprived from the use and enjoyment of their property. Among other matters, the Argentine Supreme Court has held that the fact that the situation of emergency did not exist anymore could “likely be inferred from the increase in taxes with which branches of government have levied urban properties lately, which would not be consistent with that situation of emergency”. Another normative inconsistency is found in one of the extensions of the Emergency Act, Law No. 25561, and the early payment of the external debt, which was not due yet, with the International Monetary Fund, through decree No. 1599/05 for approximately 10 billion dollars. It was also a contradiction to extend the emergency law and at the same time issue decree No. 2010/09 creating the “Bicentennial Fund for Payment of Debts and Stability”, underscoring that there was an unprecedented accumulation of reserves.¹¹⁸ This shows that with days of difference there were opposing views regarding the existence of a crisis. One can clearly see that there was inconsistency between the economic emergency declared and the reality. Therefore, it would be possible to hold that such declaration was unconstitutional due to the absence of the constitutional cause validating the emergency regulation.

The Argentine Supreme Court has considered other realities to determine the existence of emergency, such as legislative debates, the message accompanying a bill, or even the work at congressional committees.¹¹⁹ The Court also analyzed the content of the grounds of a decree,¹²⁰ the information provided by the Executive in a legal action,¹²¹ or considered the consistency between the declaration of emergency by the Legislature and by the Executive.¹²² All these have been used by the Court in many cases. The Argentine Supreme Court has also considered external information, other than the statements made in the Congress or by the Executive, to decide on the existence of an emergency situation, such as specialized technical reports,¹²³ and the recognition of the emergency situation by different sectors, such as the academia,¹²⁴ among others.

In connection with the temporary validity of emergency regulations, the Argentine Supreme Court has held that emergency regulations must contain a defined term. But the Court has not held that emergency regulations should have a determinate term, but that at times it may happen that while emergency regulations must have a term, this term cannot be established beforehand, because of the features of the emergency. Since its early days, the Argentine Supreme Court has held that emergency regulations must be provisional restrictions,¹²⁵ with temporary validity¹²⁶ or transitory in nature.¹²⁷ Anyway, it has admitted that the provisional nature of the emergency “cannot be fixed beforehand in a precise number of years or months. All that it is possible to reasonably state is that the emergency lasts the same as the causes that have given rise to it”.¹²⁸ While it may be said that this doctrine is still in force, in Tobar ¹²⁹ the Court invalidated a regulation which had admitted a salary reduction for a public employee, as it did not establish that the Government could terminate the emergency measure if the conditions giving rise to it changed.

4. Reasonableness

Finally, leaving aside the matter of the existence of an emergency situation, as well as the judicial review of the temporary duration of emergency regulations, it is essential that the courts analyze the reasonableness of the measures adopted. On this point, the Argentine Supreme Court has highlighted that while the emergency may authorize certain restrictions of some individual rights, admitting a temporary limitation of rights with monetary content, that would never justify the denaturation or elimination of the substance of those rights, as the governmental authority cannot validly run through the limit of the reasonableness of the measure.¹³⁰

The control of reasonableness in the Argentine Constitution stems from the harmonious interaction between two constitutional regulations-Section 14, allowing the Congress to regulate constitutional rights, and Section 28, imposing limits to this regulation, by establishing that any principles, rights, and guarantees recognized under the Constitution cannot be modified by the laws regulating their exercise. That permits to say that a law is reasonable when it has regulated a right without altering its substance.¹³¹ In connection with the power of the Argentine Congress, the doctrine of the Supreme Court has held that Section 28 of the Constitution has categorically provided that the law cannot modify the principles, guarantees, and rights under the Constitution with the pretext of regulating, as it not possible for the Constitution to destroy what it seeks to protect, and it cannot enshrine its denaturation.¹³²

In connection with the development of this principle, authors have tried to delimitate its content.¹³³ But, as I have already stated, the review of the reasonableness of economic emergency regulations has been too weak and excessively deferential to the decisions of the branches of government. Authors have tried to outline with more accuracy the scope of the reasonableness analysis of the regulations mostly restricting rights with economic content, especially in connection with the cost-benefit analysis¹³⁴ or the proportionality principle. The proportionality principle has been widely discussed by foreign authors,¹³⁵ and by Argentine authors.¹³⁶ While its application is not exempt from criticism,¹³⁷ the Argentine Supreme Court has held the possibility of applying this principle. It has maintained that to analyze the constitutional validity of a regulation “it is necessary to assess the reasonableness of regulations in terms of the relationship between the means chosen and the aims sought in connection with their adequacy, necessity, and/or proportionality”.¹³⁸ But the truth is that the Court has not accurately applied this doctrine. Therefore, it is desirable that the Argentine Supreme Court makes an appropriate reasonableness review of emergency regulations applying the proportionality principle in controlling economic emergency regulations¹³⁹ and put an end to an interpretation which is highly deferential to economic emergency regulations, as it is even possible to say that the control of the reasonableness of these regulations has been relinquished in actual practice.

VI. Conclusion

For almost a century, Argentina has been under permanent economic emergency. To face these emergency situations, different types of regulations have been issued. While in principle the declaration of the existence of an economic emergency is the province of the Congress, the truth is that throughout decades the Executive has been having an increasingly prevailing role by issuing delegated decrees, with a delegation by the Congress, or by issuing decrees of necessity and urgency. The Argentine Supreme Court has established certain requirements for economic emergency regulations to be valid. However, as it has been explained, the branches of government have abused these regulations. At the same time, courts have been extremely deferential to the decision of the Congress or the president. This is why a change of the judicial review of economic emergency regulations is imperative. It is also necessary to apply a restrictive interpretation of such regulations, with the purpose of adequately protecting economic liberties and, therefore, making it possible that the Constitution is observed.