Milei’s decree has landed in court. Now what? 

Legal challenges to the president’s controversial decree have descended into forum shopping as the government, plaintiffs, and the courts fight over jurisdiction

The pieces are spread across the board. The game is on. And for now, there’s no clear winner. The government’s strategy has been to channel all legal complaints against President Javier Milei’s vast decree of necessity and urgency (DNU) into the strategic forum of the Federal Administrative Litigation Court. The process has been hindered by the stay order suspending its chapter on labor, but if they handle that well, it could prove to be little more than a bump in the road. 

It was the National Labor Court, via a split decision by its Appeals Chamber, that erected the first judicial barrier to the DNU. The ruling declared open season: ever since the DNU was announced, its most likely fate has been death by a thousand cuts — in the form of different stay orders — because of the sheer number of issues it affects and the judicial entry points offered by its weaker aspects. 

It remains to be seen whether some of the legal complaints admitted during the judicial recess will follow the same path and take out other chapters of the decree. We should pay particular attention to the Federal Commercial and Civil court, where the healthcare chapter has been challenged, and San Juan province, where the judicial recess is being interrupted to rule on a protective writ against the decree. Other complaints are flying below the radar for the moment.

What happens now will depend on technicalities, interpretation and precedents. For now, those who believe the decree is on indefinite hold — which would be a political loss for the government — are just as confident as the Treasury Attorney General‘s office, led by Rodolfo Barra, who aims to establish the full validity of the DNU. Depending on how the pieces are played, either strategy could prevail. 

Like playing Grandma’s Footsteps

The Supreme Court has warned that, even in light of this week’s developments, they do not plan to analyze La Rioja province’s case against the DNU until the judicial recess is over. It’s like a game of Grandma’s Footsteps: everyone makes strides forwards as soon as the court turns its back. That’s the political race in Congress, but also in other courts. 

The real issue here is that a court stay order can only be challenged by petitioning the Supreme Court. But the stay order on Milei’s attempted labor reforms is an issue in its own right, in addition to the fight for jurisdiction between Labor and Litigation. The latter is eager to be the sole decision-maker on an issue that is so sensitive for the Executive. Until the labor court announced its stay, the Federal Administrative Litigation Court was inclined to follow the Supreme Court’s lead and wait until the end of the judicial recess. 

Labor court judges Alejandro Sudera and Andrea García Vior did not rule on the underlying legal issue, nor on legal competence. Despite the demands of the Litigation court and the prosecutor there, they did not send the case there, either. The dissenting opinion of the labor court’s third judge, María Dora Gonzalez, argued for doing this.

The shifting chessboard

The Labor Chamber’s stance is that one cannot petition against a stay order if the order involves the right to food, as it does in this case. If Barra wants to have it suspended, he’ll have to go to the supreme court. If the Litigation forum wants to “absorb” the case, they could, but they would have to interrupt the summer recess and revoke the stay, on the argument that the labor court does not have competence on the case.

The court’s view is that admitting an extraordinary petition would suspend various precedents, introducing a further complication. There could also be a change of recess judges. These developments might not be considered by the same judges who ruled on the stay, so the chessboard could shift again. 

With all the pieces on the board, there’s still the issue of competence, the injunction itself, and now the debate around the stay and the government’s response. Nothing here gives us any reason to expect a simple solution, let alone a definitive ruling.  

Originally published in / Translated by Agustín Mango


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