Permanent Economic Emergency in Argentina and its Constitutional Implications

There is broad consensus among legal scholars about the existence of a permanent economic emergency in Argentina. This article examines the origin of the doctrine of economic emergency and its evolution in the Argentine Supreme Court of Justice decisions. Various regulatory devices implemented to face the economic crises are analyzed, and it is emphasized that the declaration of a state of emergency has not been made only by means of Congress formal legislation, but through the legislative powers of the President. The requirements for the validity of regulations of emergency are set forth in this article, including the actual existence of a state of emergency, a public interest, that the measure be reasonable, and the provisional nature of the emergency. Considering that courts have not exerted proper judicial review over the regulations of emergency, guideli¬nes to implement adequate judicial review over the subject at issue are presented. It is stated that the declaration of economic emergency and the factual circumstances underlying such declaration is a question subject to judicial review. In exercising the judicial review about this issue, two dimensions may be considered. First, timing, and, second, the correlation that must exist between a regulation —law, legislative delegation, or a decree of necessity and urgency— and the emergency situation it is intended to fight against. Finally, specific features of judicial review depending on the type of regulation that has declared the emergency are studied.

LIBERAL FREEDOM, THE SEPARATION OF POWERS, AND THE ADMINISTRATIVE STATE

Contemporary critiques of the administrative state are closely bound up with the distinctively American doctrine that republican freedom requires that the legislative, executive, and judicial powers be exercised by separate and distinct branches of government. The burden of this essay is to argue that legislative delegation and judicial deference to the administrative state are necessary, or at least highly desirable, features of a democratic separation of powers regime. I begin by examining the historical and conceptual roots of the separation of powers doctrine, paying particular attention to the unique way in which it was adapted to fit the American case. I then examine three concerns that the resulting constitutional system raises about the republican freedom of those who are subject to it—which I call the accountability, legitimacy, and stability concerns—and argue that the administrative state is a useful, albeit imperfect, tool for reducing the unavoidable tension between these concerns. The thrust of this discussion is to push us away from “in principle” objections to the administrative state, and back toward the kinds of prudential considerations that are associated with ordinary liberal politics. More importantly, the aim of the essay is to encourage sober reflection on the real dangers that face the American constitutional system under current circumstances.

Expanding Horizons

This chapter focuses on four interconnected topics that can lead us to envision the dynamic development of comparative administrative law now and in the future. It first discusses behavioural insights into administrative procedure and judicial review, which may broaden perspectives on rationality review. Next, the chapter addresses the desk-level operations of bureaucratic administration and calls for greater attention to how cultural differences—especially in the shadow of colonialism—have perhaps transformed or reinvented administrative law doctrines infused with the characteristics of locality. The chapter then deals with the complexity of institutions through the eyes of comparative administrative law. Finally, the chapter shifts to a future-oriented discussion about potential conflict and collaboration between governmental use of artificial intelligence and such traditional administrative law doctrines as legislative delegation and judicial deference.

What Makes Policy Complex?

One of the most crucial decisions faced by legislators is whether to delegate authority to the executive or not. Previous research on the motives of delegation finds that authority is more likely to be delegated to the executive when policy is complex. However, policy complexity is not directly observable and the search for a reasonable proxy constitutes a major challenge for scholars. This article presents a concise and measurable definition of policy complexity based on a policy's textual sophistication and its ties to other rules and regulations. Using crowdsourcing and a pairwise comparison framework it is shown that the proposed defining features are crucial for humans' understanding of policy text. The proposed definition is then operationalized using a large corpus of European Union rules and is shown to outperform alternative operationalizations of policy complexity in predicting the level of legislative delegation to member states' national administrations and the European Commission, respectively.

The Limits of Legislative Delegation: Emergency Law in Hong Kong

The anti-Extradition Bill saga has sparked widespread protests in Hong Kong. In a bid to quench the increasingly violent protests, the Hong Kong Government has resorted to the use of emergency legislation—the Emergency Regulations Ordinance. This use was adjudged unconstitutional by the Hong Kong Court of First Instance in Kwok Wing Hang v. Chief Executive in Council. In light of this background, this article explores the interaction between emergency law and the limits of legislative delegation under the separation of powers in Hong Kong. There are three parts to this article. First, an analytical overview of the powers given under the Ordinance will be made. Second, it will be contended that the Ordinance contravenes two limits on legislative delegation under Hong Kong’s separation of powers. The first contravention is the Ordinance allows the Chief Executive in Council to amend or suspend primary legislation. The second contravention is the Ordinance excessively empowers the Chief Executive in Council to enact subordinate legislation. The decision in Kwok is therefore correct. Third, it will be contended that the court in Kwok has rightly refused to apply a remedial interpretation to the Ordinance.

Constitutional Legal Relations and State Legal Relations: Peculiarities of the Methods of Implementation

The article investigates constitutional legal relations and state legal relations as legal relations united by the common subject of legal regulation and different in purposes and methods of legal regulation. Constitutional legal relations are considered as relations aimed at building the rule of law state, recognition, observance and protection of human rights and freedoms. State-legal relations are aimed primarily at the implementation of public interests. The author concludes that the result of formation of legal relations is significantly influenced by the applied methods of legal regulation. Constitutional legal relations are formed on the basis of the application of such methods as: 1) restriction of interference of public authorities in regulation of human rights and freedoms; 2) self-regulation on issues of own competence of constituent entities of the Russian Federation and bodies of local self-government; 3) the contractual method of regulation on matters falling within the joint competence; 4) delegation of exclusive powers to the lower level of public authority. State-legal relations differ due to the application of the following methods: 1) detailed regulation and restriction of human rights and freedoms in order to realize public interests; 2) legislative delegation of powers on issues of joint jurisdiction; 3) redistribution of powers in favor of the higher level of public authority.The development of constitutional and state-legal relations in modern legal reality is possible only in the context of competition of applied methods of legal regulation. The constitutional norm enforced mainly by state-legal methods is implemented in state-legal relations and excludes the construction of constitutional legal relations. The prevalence of state-legal methods can lead to the construction of pseudo-parallel constitutional legal relations, i.e. legal relations that do not affect the existing legal reality. On the contrary, the preferential application of constitutional and legal methods can be considered as a guarantee of impossibility of abuse of state legal methods in the process of enforcement of public interests.

Legislative Delegation, the Unitary Presidency, and the Legitimacy of the Administrative State

This essay focuses on the relationship between non-delegation doctrine and so-called unitary executive theory. It argues that, if the Supreme Court were to embrace unitary executive theory without, as is highly unlikely, tightening up on the non-delegation doctrine, the result would be a constitutional disaster in terms of reduced executive branch legal and political accountability. Increasing the legitimacy of the administrative state ought to involve more, not fewer mechanisms that subject the exercise of presidential power to effective checks and balances.

Greece

The chapter traces Greece’s traditional focus on conventional notions of administrative accountability through legislative delegation and the involvement of the Council of State as a consultative and judicial body. The pattern of state-society relations in the country has also been described as statist. The EU public consultation mandates were therefore transposed into an institutional environment which, like France, was not particularly hospitable to the idea of open public involvement in policymaking. Nevertheless, the Greek case is distinctive. The chapter assesses the transformative impact of EU law against the specific background of the twin challenge facing Greece: weak administrative capacity and an underdeveloped civil society. The case illustrates that the introduction of participatory processes is a necessary but not always a sufficient condition for the new accountability paradigm to take strong roots. It may, however, helpfully turn the spotlight on structural deficiencies and the need for institutional reform.