The scope of Article 99, paragraph 2 of the National Constitution in the face of regulations that expand exclusion scenarios not foreseen by the legislator.
Introduction
According to our constitutional system, the formation and sanctioning of laws involves the National Congress and also the Executive Branch, which, although it does not have the power to legislate, holds the administrative power to regulate the laws sanctioned by the National Congress; that is, it establishes operational rules for the practical application of the law, to determine the way in which a right will be exercised or the obligations that the law itself has determined will be fulfilled.
Specifically, our National Constitution refers to this in art. 99 (Powers of the Executive Branch) paragraph 2, declaring: “2. It issues the instructions and regulations necessary for the execution of the laws of the Nation, taking care not to alter its spirit with regulatory exceptions”We will first analyze some rulings of the Supreme Court of Justice of the Nation, both regarding excess and absence in the regulation.
Active Power
This power to act, that is, to issue the Regulatory Decree, vested in the Executive Branch, empowers it to impose requirements for compliance with the law, provided that such regulations do not modify or alter the law, not only in its text but also in its purpose. In other words, the regulations must respect the spirit of the law; therefore, the regulations themselves must reasonably serve its purpose. (1)
The Supreme Court of Justice of the Nation has held that when a regulatory provision ignores or unreasonably restricts rights granted by the regulated law itself, or when it subverts its spirit and purpose, it contravenes the normative hierarchy and thus constitutes an excess in the exercise of the powers that the Constitution itself grants to the Executive Branch.(2)
Therefore, a regulatory provision issued for this purpose as a consequence of the enacted law will only be valid to the extent that it conforms to the letter and spirit of said law. In this regard, the Court has also indicated that the conformity a decree must have with the law does not consist of a textual coincidence between the two provisions, but rather a coincidence of spirit. (3)
This makes it clear that the power held by the Executive Branch under Article 99, paragraph 2 of the National Constitution can establish details but, in no case, can it alter its spirit through regulatory exceptions, much less repeal legal norms or remove rights and guarantees that arise from the text, spirit and purpose of the law.
For example, in a matter related to the export of hydrocarbons, the Court determined that once the Executive Branch has the authority to regulate the conditions under which the export of hydrocarbons would be authorized, the existence of a regulatory excess should be sought in the eventual alteration of the principles established by law.(4)
Absence of a provision in the Regulations
It is possible that there may be a lack of regulation. In such a case, the Court has indicated that the lack of regulation effectively deprives the enacted law of its legal effect, preventing the legitimate exercise of a right, as it constitutes an omission by the public authority in fulfilling a mandate arising from the very law that should have been regulated. This is because regulation is a constitutional duty enshrined in Article 99, paragraph 2 of the National Constitution.
In such a case, it would be appropriate to order the Executive Branch to issue the omitted regulations. (5)
It should also be borne in mind that an omission may be grounds for effective judicial protection when it directly and immediately infringes upon a right, whether individual or collective, since constitutional vulnerability arises both when one does what the Constitution itself prohibits and when one omits what it mandates. This is especially true when regulations are essential for the proper exercise of rights and obligations.
Consequently, this lack of regulation clearly implies a denial of the constitutional exercise of a right established by law.
Argentine Constitutional System
In the Argentine constitutional system, the dualism between law and regulation has been adopted, as established in Article 99, paragraphs 1 and 2 of the National Constitution. This allows for effective judicial protection by granting the possibility of judicial challenge to the general administrative acts of the Public Administration; in this case, regarding regulations, whether these are excessive or absent, which evidently results in the deprivation of the effects that the legislator intended when enacting the law.
Thus, when a law is enacted, a framework is established for issues that may have general or specific scope, depending on the subject matter of the enacted law, to whom it is directed, and the legislator's intent in enacting it—that is, its purpose. This is done with the idea of maintaining a balance in the respective functions of the branches of government. In this sense, the Executive Branch is empowered to issue regulations, such as implementing a law, as well as to establish regulations in its capacity as the highest-ranking body of the Public Administration. In both cases, this is done within the constitutional framework and without altering rights and guarantees enshrined in the laws, nor those related to constitutional and conventional guarantees. It is for this reason that regulations and
Therefore, a Regulatory Decree of a Law is subject to judicial review, as long as there is someone who has been legitimately affected in a certain and imminent way in their rights or when an administrative claim has been initiated and exhausted.
When the implementation of a pragmatic law requires subsequent regulations for its effectiveness, those regulations become secondary norms that cannot impose burdens or obligations, nor arbitrarily exclude sectors or agencies of the public administration in cases where laws are intended to govern them. It can be argued, and rightly so, that the Executive Branch has a reserve of authority regarding regulations governing the administrative sphere. However, these are specific internal norms within its hierarchical structure, but they do not extend to the regulation of a law to the point of distorting its essence and purpose; even in the case of the Law of
Administrative Procedures.
Situation
Thus, we arrive at what is stated in the Law of Administrative Procedures and its specific regulations, insofar as it is an operational and pragmatic norm that requires regulatory adaptation for the exercise of the rights arising from the law. Law 19.549 has been amended by Law 27.742 (known as the LAW OF BASES AND STARTING POINTS FOR THE FREEDOM OF ARGENTINIANS).
The very name of the law is significant for the analysis, given that it legislates with the direct aim of strengthening that freedom in the exercise of the rights enshrined therein. In other words, it imposes progressive, not regressive, burdens.
It is worth highlighting that this law has incorporated new principles on administrative procedure listed in the new Article 1 bis. These principles are: 1) Effective administrative protection; 2) Right to be heard; 3) Right to offer evidence; 4) Right to a reasoned decision; 5) Right to a reasonable time frame; 6) Speed; 7) Reasonableness. (among the main principles).
Regarding administrative silence, the law maintains the principle of negative silence, but it is no longer necessary to file a motion for expedited processing for such silence to be considered valid; it is sufficient to count 60 days from the date of the applicant's submission. The novel aspect is that the reform has incorporated the concept of positive silence in cases of authorizations that must be issued by the administration. The same law established a limit for regulations governing the exercise of these rights, specifically stating that positive silence will not apply in cases related to public health, the environment, the provision of public services, and rights over public property. Therefore, the corresponding regulations cannot deviate from these specific parameters when establishing limits regarding positive silence, as doing so would be a clear violation of the text of the law itself, its spirit, and the intent of the legislator.
In line with this, every administrative act can be challenged in court and, specifically, through an expedited amparo action.
Regarding the Regulatory Decree of the Law, 695/2024, it is important to highlight two articles:
ARTICLE 31.- The following is incorporated as article 65 quater of the Regulations of Administrative Procedures, approved by Decree 1759 of April 3, 1972 – TO 2017:
"ARTICLE 65 quater.- Once the period stipulated in section (viii) of subsection g) of Article 1 bis of the Law on Administrative Procedures, or the period established by specific regulations, has elapsed, as well as the conditions provided for by regulation or by law for the granting of the administrative authorization, the silence will be considered to have a positive effect. The interested party may process the registration, issuance of the corresponding certificate or authorization, which
will be granted within a period of no more than FIFTEEN (15) days.
Under no circumstances may the act of authorization imply exceptions or non-compliance with the conditions provided for by regulation or norms, which will be monitored and audited by the competent authorities.”
ARTICLE 32.- The following is incorporated as Article 65 quinques of the Regulation of Administrative Procedures, Decree 1759/72 – TO 2017:
“ARTICLE 65 quinques. – Exclusion of tacit approval. Tacit approval, as defined in subsection b) of Article 10 of the Law of Administrative Procedures, shall not apply to the specific cases determined by the NATIONAL EXECUTIVE BRANCH, upon request of the CHIEF OF CABINET OF MINISTERS, with a reasoned report from the competent areas.” (6)
Let us bear in mind that this is an executive regulation, that is, one whose purpose is to facilitate the application of the law being regulated, regulating the details necessary for its application in accordance with the purposes determined by the legislator, as Marienhoff has also maintained. (7) In this sense, Article 65 “quinqués” which denies the right to silence in a positive sense, is absolutely contrary to the text of Article 10 of the Law of Administrative Procedures (amended by the Bases Law) and clearly contradicts the purpose of the rule and the spirit of the title of the law itself, in reference to freedom, granting the Chief of the Cabinet of Ministers a regulatory power over administrative bodies and these in his own way, outside the relevant regulatory framework and all reasonableness.
Suppose a foreign trade operator requests an administrative authorization essential to complete an export transaction. After the sixty (60) days stipulated by Law 19.549, as amended, the silence constitutes tacit approval. The interested party invokes this right and requests the issuance of the corresponding certificate. However, the administrative authority responds that the procedure is excluded from the tacit approval regime by virtue of a provision issued under Article 65 quinques of Decree
695/2024.
The result is immediate: the operation is paralyzed, the international contract is frustrated, economic penalties are generated, and the right to engage in lawful industry and the right of ownership are directly affected.
This is not a mere difference of interpretation, but the regulatory neutralization of a right expressly recognized by the legislator.
Thus, the State itself, protected by a manifest irregularity that it interprets as its own power, causes serious harm by violating provisions over which it lacks legal, constitutional and conventional authority.
Synthesis
As established in Article 99, paragraph 2 of our Constitution, this provision must be interpreted in a prohibitive sense; that is, it does not represent an indiscriminate or arbitrary power granted to the Executive Branch to define legal terms, fill legal gaps, or restrict rights, thereby violating the spirit of the law. This means that regulations must comply with the terms of the law and its purpose, in accordance with the will of the legislature. This is the interpretation established by legal scholars.(8)
Consequently, given the proliferation of different enforcement authorities for various purposes arising from regulations, these authorities end up incorporating requirements or denying rights in open contradiction with the law, since they issue regulations under the umbrella of autonomous entities, without such power having been legislatively delegated to the Executive Branch and from it to the relevant bodies, in line with the law that has been enacted.
In a context where different enforcement authorities issue regulations under the auspices of entities or bodies with functional autonomy, the risk of incorporating requirements or exclusions not provided for by law increases. When such regulations exceed the enabling legal framework and operate as mechanisms for indirectly restricting legally recognized rights, the problem ceases to be merely administrative and acquires a constitutional dimension.
The regulatory power provided for in Article 99, paragraph 2 of the National Constitution does not constitute authorization to redefine the scope of the law or to create exceptions not foreseen by the legislature. Its function is instrumental: to make the rule operational, not to reformulate it.
When regulations become a discretionary filter that neutralizes expressly enshrined rights—as happens when broad exclusions from tacit approval are permitted beyond the limits set by law—the republican balance is disrupted. The Executive Branch ceases to enforce the law and, in effect, becomes a negative legislator.
In that scenario, effective judicial protection is not just another procedural option, but a constitutional requirement intended to restore normative supremacy and preserve the will of the legislator against regulatory expansions without sufficient legal basis.
Notes and references
1 (Judgments: 308:1897; 313:433; 327:5002
2 (Judgments: 322:1318; 318:1707)
3 (Rulings: 322:752)
4 Rulings: 323:2395
5 (Rulings: 344:3011)
6 Decree 695/2024
7. MARIENHOFF, Miguel S., “Treatise on administrative law”, Ed. Abeledo Perrot, Buenos Aires, 1965, vol. I, p.240, citing Fallos 241:396.
8 GORDILLO, Agustín, “Treatise on Administrative Law. General Part”, Ed. FDA, Buenos Aires, 2009, vol. 1, p.
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The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
