Gabriel Morini 
The mega-decree issued by Javier Milei’s administration began seeing a string of judiciary challenges only hours after it was announced. The most relevant development was the first court presentation, given that it landed in a place the libertarian government has scant access to, the strategic Federal Litigation Court.
The City Law Observatory, Claudio Lozano, “Cachorro” Godoy, and Rodolfo Aguilar filed the presentation, requesting the court rule the decree unconstitutional for violating the separation of powers and the constitution. Prosecutor Miguel Ángel Gilligan received the case, and judge Esteban Furnari will oversee. Both of them have a background that should worry the government, which fears a court order more than the reactivation of a Bicameral Commission that has never rejected a decree of necessity and urgency (DNU). Since its creation in 2006, the procedure has never managed to block a DNU with a majority in both Houses.
But the main feature of this DNU is that different sectors can target multiple aspects of it in court. And in multiple jurisdictions. This means that a blurred constitutionality check may end up dismantling its content — depending on who is behind any specific law suit — and legitimacy. This goes without even mentioning the DNU’s format, which specialists in constitutional law from all sides agree is its most vulnerable point.
But there are still other complexities. The apparent “mistake” of failing to establish its immediate validity seems like a sophisticated tactic. Without a corrective decree of implementation, the law requires that 8 calendar days pass since its publication to be automatically in force, which brings the date to December 29.
As a precautionary measure, you need to demonstrate a specific effect that does not occur until the “case” is determined. That leaves one last business day of the year to take action, prior to the judiciary’s summer recess. Beyond the fact that validation of non-working days can be requested, this would delay its processing to January, and, more importantly, it leaves everything within the funnel of the appointed recess authorities.
Given the importance of the matter, the DNU’s fate remains in the hands of the Supreme Court. Horacio Rosatti will continue working throughout January, joined in the first week by Carlos Rosenkrantz and Ricardo Lorenzetti between January 1 and 5. The lawsuit(s) will not necessarily be centralized in the Administrative Litigation Court, a place that Treasury Prosecution Office head Rodolfo Barra knows very well. However, his office acknowledges that they had little to do with the technical language of the decree, which leaves unusual gaps.
In this framework, the most specific precedent of the Court dates back to 2010, when the highest court unanimously ruled that DNUs “were established to mitigate presidentialism and that, therefore, their use by the Executive Branch should be limited.” That ruling declared the unconstitutional nature of Decree 558/02 from 2002 that modified Law 20,091 on insurance entities. Only Lorenzetti and Juan Carlos Maqueda remain from that court, and the case involved consumer relations, an issue present in the current mega DNU.
But we must not rule out that presentations may come through labor law or the multi-jurisdictional courts of the interior. The core of the precedent, however, is that “the principle that organizes power is the separation of roles as well as reciprocal control.” It should also be noted that “judges can control the existence of a state of necessity and urgency, which is not the same as mere political convenience.”
Another precedent signed by the late Justice Enrique Petracchi — in his vote on the “Verrocchi” case — stated that if the Bicameral Commission hasn’t been formed, the decree cannot be ruled. But at the end of the ruling, he sets another relevant topic: a DNU that deals with an urgent situation cannot be meant to permanently modify the contents of a law.
These are the issues of a debate that has only just begun.
