## Facts

- In 1994, Argentina reformed its Constitution to strengthen separation of powers and limit presidential lawmaking, allowing “decrees of necessity and urgency” (DNUs) only as an exceptional mechanism subject to strict conditions.
- In 2002, during a severe economic crisis, Congress enacted Law 25.561, declaring a public emergency and adopting economic measures.
- While the emergency was in effect, President Eduardo Duhalde issued DNU 558/02, which amended Insurance Law 20.091.
- The decree sought to let the Superintendent of Insurance exempt certain insurers from ordinary regulatory requirements so they could obtain bank credit and other benefits more easily in the crisis context.
- Consumidores Argentinos, a consumer advocacy association, filed an amparo action in federal court seeking a declaration that DNU 558/02 was unconstitutional.
- The federal court of first instance granted relief and held the decree unconstitutional insofar as it modified provisions of Law 20.091.
- The federal contentious-administrative appellate court affirmed, reasoning that a DNU is valid only if ordinary legislative action is impossible or if the needed response time is incompatible with the legislative process.
- The National Government (Estado Nacional / Poder Ejecutivo Nacional) filed an extraordinary appeal to the Supreme Court.
- In the Supreme Court proceeding, Attorney General Laura M. Monti issued an opinion stating that Law 25.561 was too broad and generic to justify DNU 558/02 and that the decree should be struck down.
- The government argued that the economic crisis affected the insurance market and that it was more convenient and urgent for the President to act outside Congress’s normal process.

## Issues

1. Whether DNU 558/02 satisfied the constitutional preconditions for a decree of necessity and urgency under Article 99(3), including exceptional circumstances and the impossibility (or time-incompatibility) of using ordinary legislative procedures.
2. Whether Law 25.561’s public-emergency framework and any delegation it contained authorized the Executive to amend the insurance regulatory regime set by Law 20.091, consistent with Article 76’s limits on legislative delegation.
3. Whether courts may examine the factual and legal basis asserted to justify a DNU, or must defer to the Executive’s assessment of necessity and urgency.

## Decision

- The Supreme Court rejected the National Government’s extraordinary appeal and affirmed the lower courts’ judgment declaring DNU 558/02 unconstitutional insofar as it amended Law 20.091.
- The Court held that DNUs are exceptional and that the government did not show the constitutionally required conditions for bypassing Congress; the record did not establish that ordinary legislation was impossible or that the situation required action within a timeframe incompatible with legislative procedures.
- The Court agreed that the decree did not function as a narrow, temporary emergency measure; it operated as a set of lasting regulatory changes to a statutory scheme enacted by Congress.
- The Court concluded that Law 25.561 did not provide a sufficient legal basis to amend the insurance regime by executive decree; the emergency statute was framed in broad terms and did not specifically authorize restructuring the regulatory rules for insurers under Law 20.091.
- The Court confirmed that judicial review includes checking whether the asserted “necessity and urgency” has support in the circumstances, especially when the Executive claims authority to exercise legislative functions.
- The Court accepted the view that congressional inaction after issuance does not cure a decree’s constitutional defects and does not bar the Judiciary from determining whether the Executive acted within constitutional limits.

## Legal Principles

- Under the post-1994 constitutional design, presidential DNUs are a narrowly limited exception to the rule that Congress makes laws; they require strict satisfaction of Article 99(3).
- A DNU is constitutionally permissible only when ordinary lawmaking is impossible or when the urgency of the situation makes waiting for the legislative process incompatible with the needed response time.
- Courts may review both the legal sufficiency and the factual foundation of the Executive’s claim of necessity and urgency; the existence of an emergency is not immune from judicial control.
- Legislative delegation under Article 76 must be confined to defined matters, within the bases set by Congress, and within the limits Congress establishes; a generic emergency statute is not enough to authorize permanent statutory redesign in unrelated regulatory areas.
- Congress’s failure to act on a decree does not validate an otherwise unconstitutional exercise of executive lawmaking authority.

## Conclusion

The Supreme Court of Argentina affirmed an amparo judgment striking down DNU 558/02 because the Executive failed to meet the Constitution’s strict conditions for legislating by emergency decree and could not rely on Law 25.561’s broad emergency language to justify permanent amendments to the insurance regulatory framework in Law 20.091.


Consumidores Argentinos v. Estado Nacional, sub nom. Poder Ejecutivo Nacional, Id SAIJ: FA10985614 (2010)