Preliminary considerations
The so-called “legislative delegation” implies that the Legislative Branch could authorize the Executive Branch to take on legislative powers. However, it is not possible to ignore that there is a difference between a delegation to create a law and another for the Executive Branch, in its administrative function, to determine issues for the execution of a law. The latter is admitted, while the former is expressly prohibited by the National Constitution, in its art. 76, taking into account the exception on matters of administration and emergencies, with the limitations that the same article expresses.
Therefore, proper delegation is the case of attribution granted for the direct formation of a law (prohibited), and improper delegation is that which only grants powers to dictate administrative acts in the implementation of a law, in accordance with the guidelines established by the same Legislative Power. (Allowed)
Constitutional determinations
Based on the concepts briefly explained, in an attempt to be didactic, what the Constitution itself determines fully clarifies the limits of the Executive Branch, avoiding an undue expansion of its powers. And this is not only from what arises from art. 76, but from 99, which establishes the powers of the Executive Branch, first in its paragraph 2 that frames the regulations of the laws in order not to deteriorate the spirit of the same, while in its paragraph 3 it expressly prohibits it from issuing provisions of a legislative nature, with the exception of the Decrees of Necessity and Urgency on which the Supreme Court of Justice of the Nation has already issued a ruling, specifying the limitation in this sense. The most mentioned ruling in this regard is that of “Consumidores Argentinos c/ EN –PEN- Dto. 558/02 –law 20.091 s/ amparo law 16.986”, in which the unconstitutionality of decree 558/02 of March 27, 2002 that modified law 20.091 of insurance entities was declared. There, it was determined that “The text of the National Constitution does not allow for a discretionary choice between the sanction of a law or the faster imposition of certain material contents by means of a decree.”, and furthermore, that “The powers to issue a DNU are admitted under conditions of rigorous exceptionality to limit and not to expand the presidential system” (recitals 1 to 10). Reference was also made to another ruling known as Verrochi, specifying the following requirements as parameters: 1) that it is impossible to enact the law through the ordinary procedure provided for by the Constitution, that is to say, that the chambers of Congress cannot meet due to circumstances of force majeure that prevent it, as would occur in the case of war actions or natural disasters that prevented their meeting or the transfer of legislators to the Federal Capital; or 2) that the situation requiring a legislative solution is so urgent that it must be resolved immediately, within a period incompatible with that required by the normal processing of laws (consideration 9). Judgments 322:1726, “Verrocchi”.
Thus, at least three basic requirements for delegated decrees emerge clearly within the framework of art. 76 of the CN, namely: 1) That it deals with matters of public administration or emergency, 2) The specification of a specific period for such power and 3) That such delegation is within the limitations that the Legislative Power itself establishes. Which means that, within the framework of arts. 76 and 99 of the CN, there is no room for doubt about the general principle that directly prohibits in one case and limits, in others, the legislative powers of the Executive Power, including the precise considerations in which the situations delegated by the Legislative Power may occur, in clear determination of the limitation of presidentialism.
final consideration
As mentioned ut-supra, The harmonious application of arts. 76 and 99, paragraphs 2 and 3 of the National Constitution, leaves no room for doubt regarding the limitation in the matter of delegation of legislative powers that the Congress of the Nation can grant to the National Executive Branch, thus preserving the correct division of Powers that is already argued from the beginning of the constitutional text in its art. 1, regarding the adoption of the representative, republican and federal system; this being, moreover, a stone clause of our Fundamental Law.
In view of this, the rules issued in the area of customs and international trade must necessarily have the solidity of the principle of legality, with those delegated being subordinated, in accordance with the guidelines that the National Constitution itself expressly determines, plus the expressions of reasons of the Constituents, the Doctrine and Jurisprudence, as enriching guidelines for such an important subject, which also implies the necessary legal security that is so often demanded.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.