The Power and the Money

International law and national constitutions

Many judicial conservatives decry the use of international law, treaties, and precedent to make decisions. They fear that allowing such inputs into decisions will weaken American constitutional norms.

I think they are almost certainly wrong, at least in the case of the United States. But the fear is not crazy.

Consider Bolivia, where Evo Morales is running for re-election in explicit contravention of the national constitution. How did that happen?

Well, in 2017 the SCOPNOB (Supreme Court Of the Pluri-National State Of Bolivia) declared that the constitutional article limiting president re-election is against the constitution. How did that happen? Well, the court decided that term limits contradicted article 23,24  and 29 of the Convención Americana sobre Derechos Humanos.

Relevant portions of the Convención:

Article 23:  Every citizen shall enjoy the following rights and opportunities:

a. to take part in the conduct of public affairs, directly or through freely chosen representatives;

b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and

c. to have access, under general conditions of equality, to the public service of his country.

The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.

Article 29:  Restrictions Regarding Interpretation

No provision of this Convention shall be interpreted as permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein.

In short, the Bolivian court ruled that term limits restricted President Evo Morales’s right to “to have access, under general conditions of equality, to the public service of his country.”

Now, the court also referred to Articles 26 and 28 of the Bolivian constitution, but those are pretty clearly written to allow for term limits. The real kickers were articles 23 and 29 of the American Convention, with article 24 (which parallels the equal protection clause of the 14th Amendment to the U.S. constitution) as a sweetener. 

Realistically, the Bolivian court probably would have ruled the way that it did regardless of the convention. The decision was a political one in a country with weak rule of law. 

But. But. There is a logic behind interpreting the clauses of the American Convention to obviate term limits. It helps that Article 13 of the Bolivian constitution explicitly say that “the rights and duties consecrated in this Constitution shall be interpreted in accordance with the International Human Rights Treaties ratified by Bolivia.” 

And that logic has resulted in the perfectly ridiculous spectacle of a Supreme Court declaring a procedural part of the constitution to be unconstitutional because everyone has a human right to become President. 

Mexico’s democracy is already in bad shape

I am on record as being relatively unworried about the AMLO administration. That is not because I do not think that President López Obrador will make capricious and counterproductive decisions. Rather, it is because I do not think that he will do major damage to Mexico’s institutions. And the reason I do not believe that he will do damage is because Mexico’s governing institutions are already in rather bad shape. It is hard to wreck a car that is already totaled. 

Consider Hungary and Poland. The Hungarian prime minister has been assaulting democracy and the rule of law in his country for almost a decade now. The country’s liberal democracy rating (measured by the Varieties of Democracy project) has declined from around 0.7 (on a scale of 0-1) in 2010 to 0.5 today.

The Polish ruling party has been weakening its country’s institutions for rather less time but with similar success: its rating has crashed from 0.8 in 2015 to 0.6 today. 

But both countries still rank above Mexico, which has hovered around 0.5 since 2000. That is to say, despite a multi-year and sustained assault, the quality of democracy in Hungary and Poland is still no worse than in Mexico.

To make another comparison, in South America only Ecuador and Venezuela rank below Mexico. (Bolivia falls inside the error bars.) Peru, Paraguay, all the same or better.  

Now, that is not to say that democracy and the rule-of-law cannot get worse. They certainly can. But that will not happen because AMLO built a political machine or engaged in populist politics. To get worse than Mexico’s current level AMLO will have to openly assault democratic institutions, in the style of Turkey or Venezuela.

That could happen, but there is no evidence of it yet, not even with the fraudulent electoral consultations or the idiotic cut in top bureaucratic salaries. When it happens, if it happens, you will be able to see it happening ... because Mexico is already on the bottom edge of what you see in normal countries.

The incredible power of the Argentine president

Back in February, I noted that the Argentine president has too much power, which might be a cause of Argentina’s bad governance.

It turns out that I noted the same thing back in 2008. Cristina had just lost a Congressional vote on raising the soybean export tax from 35% to 44%. (Page 16.) I noted that this was a double-sign of political weakness, since her intention had been to bypass Congress altogether and impose the tax using the necessity and urgency clause in Article 99. Street protests forced her to go back to the legislature, where she lost 37-36 in the Senate. 

I interpreted the loss as a sign of her political weakness. I was wrong about that. Despite the export tax mess, and the pension nationalization mess, she managed to win re-election in 2011. Her administration would not collapse under its own weight until the 2015 election. But she would careen from self-inflicted disaster to self-inflicted disaster without the guardrails that keep American presidents from doing likewise, no matter how incompetent or mercurial they may be. (Mostly. In domestic policy, at least.)

But I was right about the danger of Argentine presidential power. I still fear for Argentina, especially in the current economic headwinds. 

Observatorio argentino 38: Who needs checks and balances?

It is astounding to realize just how much power the President of the Argentine Republic possesses. 

This came home to me while I was checking over how President Macri recently tightened the immigration laws. Context: Argentina has a rather liberal immigration regime. (I am surprised even more Venezuelans have not shown up. I guess the limiting factor is that they need a job offer to get a work visa, although there are no limits on such offers.)

Last year, the Macri administration wanted to tighten the law. (See Observatorio Argentino 32.)  The changes were small, but they involved specific clauses in the legislation itself. You can find the original 2004 text here. So they could not be made via simple executive order.

In other presidential republics, the only option would be to go through Congress. Get the law changed. How hard that is depends on the country. 

An American president needs to be a hella politician. They need to convince a legislator to introduce the legislation; they then need to cajole the Speaker and Majority Leader to bring it to a vote. Even then, under the new 21st Century norms, they need at least 60 senators to vote yes. 

A Mexican president is a little more powerful, but only a little. Under the original wording of Article 71 of the constitution, they could introduce bills straight to the relevant committee. But by itself that gave them only a little more power than an American president. In 2012, however, a constitutional amendment changed Article 71 to give the president the ability to introduce two bills every session that go straight to the floor. Each house then gets 30 days to vote on them; if they don’t hold a vote, then the bill becomes the first item on the agenda in the next session. So congressional leaders can still delay things; and note that if they delay both initiatives the President cannot introduce any in the next session. So even with the additional post-2012 powers, they need to be good legislative politicians if they want to get anything done. 

A Colombian president is more powerful still. She or he can introduce bills and demand that Congress vote on them within 30 days, with no limits. But Colombian presidents are not legislators. They have no direct control over the amendment process. And, of course, Congress can just say no. 

But Argentina? Sweet Mary. Under a 1994 amendment to Article 99 of the constitution, the President can decree pretty much anything. The article is nuts. Read section 3 for yourself:

The Executive Power shall in no event issue provisions of legislative nature, in which case they shall be absolutely and irreparably null and void. Only when due to exceptional circumstances the ordinary procedures foreseen by this Constitution for the enactment of laws are impossible to be followed, and when rules do not refer to criminal issues, taxation, electoral matters, or the system of political parties, he shall issue decrees on grounds of necessity and urgency, which shall be decided by a general agreement of ministers who shall countersign them together with the Chief of Cabinet.

Within the term of ten days, the Chief of Cabinet shall personally submit the decision to the consideration of the Joint Standing Committee of Congress, which shall be composed according to the proportion of the political representation of the parties in each House. Within the term of ten days, this committee shall submit its report to the plenary meeting of each House for its specific consideration and it shall be immediately discussed by both Houses. A special law enacted with the absolute majority of all the members of each House shall regulate the procedure and scope of Congress’s participation.

Yes, that is as crazy as it sounds. Exceptional circumstances are not defined, and every president since 1994 has interpreted the clause to mean that they can make legislative changes to anything they want whenever they want. In theory, the joint standing committee has ten days to vote and then Congress can reject the decree. In practice, the committee often stonewalls or deadlocks and then the decree just goes ahead and becomes law, poof, just like that. 

How the hell did that happen? The 1853 drafters of the constitution did not set out to create an elected dictatorship. But they got an unelected dictatorship in 1930, when the military seized control. The Supreme Court remained in session, though, and it validated the decrees handed down by the junta. In 1947, the Court tried to block a presidential decree ... at which point President Juan Perón impeached all but one of the justices. You won’t be shocked to find that the restaffed Court ruled in Ziella v. Smiriglio:

The decree-laws issued by the de facto government are valued by reason of their origin and since they have the force of law they continue in force even though they have not been ratified by Congress as long as they are not repealed in the only manner in which they may be so, that it is to say, by other laws.

Still, only 15 decrees were issued between 1930 and 1982. When democracy returned for good in 1982, the new civilian presidents were loth to give up the power. Raúl Alfonsín used the power ten more times, mostly for small-bore stuff; his big decree replaced the peso with the austral. 

But Alfonsín was succeeded by Carlos Menem, a Trump before Trump, a Berlusconi before Berlusconi. Menem liked executive power. He started by increasing the size of the Supreme Court from five to nine. He then issued a decree that seized most bank accounts and replaced them with government bonds. People sued. 

But the packed court ruled that President Menem was entirely within his rights as long as Congress did not explicitly repeal the decree with another law. American legal scholars will be amused to know that the Argentine justices cited Home Bldg. & Loan Association v. Blaisdell (1934) as justification for a decision ratifying exactly the sort of thing that Hughes, Cardozo and Brandeis were trying to prevent.

The 1994 constitutional amendment creating the new Article 99 was an attempt to limit the decree power. As such it failed. Menem would go on to issue over 300 decrees. (Note again that before Menem there had been only 25 presidential decrees in the history of the Republic.) Congress would not even bother to create the joint standing committee until 2006. And it remains toothless. 

Consider the immigration reform that started this discussion. What happened after President Macri issued it? Well, the joint standing committee has only 16 members but it could not get everyone to attend. It voted 6-5 to support the decree on February 22, 2017 ... but because there was no majority its recommendation was never reported out. The decree continued as law. In October, a federal judge ruled that it was in fact law even though the whole Congress had never voted. (In this he had ample precedent, although Argentine judges are not formally bound by precedent the way they are in the Anglosphere.) He also ruled that the deportation of criminals was somehow not a criminal matter and thus the reform was kosher under Article 99. 

No matter how you slice it, it is unbelievable that a democratic president has the power to make law unless Congress actively says no. Giving Donald Trump the power of a Mexican or Colombian president would change little; GOP initiatives are hard to pass because they are unpopular. Allowing the President to force votes on them would not help. But giving Donald Trump the power of an Argentine president? Well, that is scary.

And that may be one of the prosaic reasons why Argentina is not particularly well governed. They really ought to do something about that Article 99, I think.