In his own words, La Libertad Avanza’s (LLA’s) Javier Milei wants to take a motosierra (chainsaw) to the federal government. Dollarizing the economy, dissolving the Central Bank and privatizing public healthcare and schools are just a few of the leading presidential candidate’s most outlandish proposals. But while he managed to gather nearly 30% of the vote in the August primaries and may yet become the next president of Argentina, there’s no guarantee that he’ll be able to carry out these radical reforms. 

If Milei wins in the October 22 general elections (or the probable November 19 run-off) LLA would not have a majority in Congress, meaning he would lack the number of deputies and senators required to pass laws without the support of other coalitions. Milei will also lack gubernatorial support in the provinces — another key factor in his ability to govern the country.

LLA’s governor candidates have not won any provincial elections so far, and are not expected to win in the provinces that have yet to vote.

If Milei earns the same percentage of votes as he did in the primaries, he would enter office with around 40 deputies and 8 senators. For comparison, the ruling coalition, Unión por la Patria (UxP), currently has 118 out of 257 seats in the Chamber of Deputies and 31 out of 72 seats in the Senate. Juntos por el Cambio (JxC), which has been the main opposition during the Fernández administration, has 116 deputies and also 31 senators.

In the national Congress, sessions need a quorum of half of the seats plus one to start. That’s 129 in the lower chamber and 37 in the Senate. Coalitions with a majority in both houses can easily pass laws, because they only need their own legislators to attend the session to get the necessary votes. None of the coalitions currently have a majority in Congress, and it will likely stay that way after December 10, when the new elected legislators will take over.

Provincial governors

Argentina is a federal country, so while the central national government makes decisions for the entire population, provinces are autonomous. They have their own constitution, laws and government powers (executive, legislative and judicial). Provincial laws are not allowed to clash with national laws (although provinces sometimes disregard this restriction), and are subject to other limitations. However, governors often dispute decisions made by the national government if it affects their interests, and may pressure presidents.

No matter how much he rails against la casta, a derogatory term for Argentina’s political establishment, Milei will have to negotiate with the major political parties if he hopes to legislate. 

“The moderation in Milei’s proposals, if not voluntary, will be forced on him by the country’s institutions,” political analyst Lara Goyburu told the Herald.

Could Milei govern with Juntos por el Cambio?

The final vote count in August’s primaries showed that Milei, LLA’s lone presidential candidate, received 29.9% of the vote, JxC received 28%, and UxP 27.3%.

Only a third of senate seats are up for election, so most will remain in the hands of UxP and JxC, with the potential inclusion of eight LLA senators. However, the Chamber of Deputies will be a challenge for whoever wins the presidential elections. More than half of the seats are up for election, and if the PASO results are repeated, they will be split roughly into thirds, according to Goyburu.

“The three coalitions will be able to block each other’s decisions,” Goyburu explained. “Ideally, this would generate compromise. But it could also lead to paralysis.”

If Milei is elected president, his deputies will need to reach a consensus with another coalition in Congress. The most likely candidate is JxC, which shares many of its free-market principles, although its orientation is more center-right than far-right.

“They will find it easier [to reach agreements] in anything regarding state spending cuts, but not of the sort that has helped LLA earn votes,” Goyburu continued.

Many of the economic, political and social reforms Milei has promised “require Congressional approval, because that’s what the Constitution says,” she added. “LLA is noticing there are institutional and federal limits to their proposals.”

But not following through on his disruptive agenda could backfire, the political analyst warned. 

“When you win by promising rupture, the frustration that can be created in a society [if you fail to deliver] can be even greater than it was previously,” she said. “They can reach agreements in Congress, but the base agreement they have with society could break.”

Could Milei rule by decree?

If Milei fails to find consensus in Congress for his polarizing policies, could he push them through via presidential decree? The National Constitution limits use of this measure to prevent abuse, but it’s possible, according to Diego Morales, head of the legal team at human rights nonprofit, the Center for Legal and Social Studies (CELS, by its Spanish acronym). “It would be on the edge of democratic debate,” he said. 

“Ruling by decree is not that easy. The Constitution bans presidents from legislating except in extremely urgent or exceptional situations that can’t wait to pass through Congress,” Morales added. These require presidential decrees known as “Decrees of Necessity and Urgency” (Decretos de Necesidad y Urgencia, or DNUs). They were regularly used by President Alberto Fernández during the COVID-19 pandemic to enforce and renew lockdowns.

By law, the executive power must alert Congress within the next 10 days after the decree is published in Argentina’s Official Bulletin. A special commission with members of both chambers then has to analyze its language and vote on whether it’s valid. The Senate and the Chamber of Deputies then have to vote to approve it or not. Both chambers must reject a decree for it to be annulled.

DNUs are explicitly banned for criminal, tax and electoral issues, as well as changes to the framework for political parties. That means Milei would be unable to use them for key policy proposals like eliminating or lowering taxes and lifting all export duties, as well as legalizing the sale of arms and human organs — which would mean changing criminal laws.

Referendums

Milei has also said that, if elected president, he would hold a referendum on whether abortion should remain legal. Abortion was legalized by Argentina’s Congress in December 2020. The legalization procedure established several changes to the 1921 Criminal Code.

In Argentina, Congress can present bills to launch binding referendums. If Congress approves the referendum, it proceeds to a compulsory plebiscite among the general population. If they approve it, the bill automatically becomes a law.

Presidents (and Congress) can also launch non-binding referendums for citizens to express their opinion on certain matters. 

Experts argue about whether the abortion law could be put to a binding referendum or not, since it deals with criminal law. The Constitution doesn’t explicitly place restrictions on the topics that can be put to referendum. However, article 39 of the Constitution says that “matters related to constitutional reforms, international treaties, taxes, budgets and criminal law cannot be subjected to popular initiative,” referring to bills presented by citizens.

Specialists have argued that this also applies to referendums: for example, late constitutional attorney Germán Bidart Campos said in his book Sistemas Jurídicos Comparados that “it is logical to assume that the five issues that cannot be subject to popular initiative cannot be put to referendum either.” 

The Supreme Court has not ruled on this issue to clarify the law yet. In any case, the bill would need major support from both chambers for the referendum to happen.

It seems unlikely, then, that Milei would try to rule by DNU or referendums, as most of his proposals would require Congressional approval. That means careful negotiation is his best  — and perhaps only — chance of legally enacting his agenda. But whether the libertarian firebrand is capable of compromise remains, at the very least, an open question.

Cover photo credit: Mariano Fuchila/Ámbito