It’s the Constitution, stupid

General view of dozens of containers in the Commercial Port of the city of Buenos Aires (Argentina), in a file photo. EFE / Demian Alday Estévez

I read with surprise that the Minister of National Security, Aníbal Fernández, a polirubro of the “political body” that has been one of the many leaders who gave his contribution to destroy our beloved country (He was Chief of Cabinet, Minister of the Interior, Minister of Justice, Minister of Production, etc.) gives us an explanation on the interpretation of the Constitution, in reference to export and import rights (Art. 75 inc. 1 of the Basic Charter), which more closely resembles the powers displayed by the Delphic oracle than the measured and careful reasoning of a legal professional.

But, beyond all subjective appreciation, I will focus on some questions that the Minister of Security surely does not understand or understand (“he who covers a lot, does little pressure” says the wise saying):

1.- The Minister of Security says: “For now, export rights are established by the National Executive Power, based on a permanent authorization contained in Article 755 of the Customs Code.” It would be interesting to know why the Minister defends so strongly Law No. 22,415, enacted on March 2, 1981, put into effect in accordance with Article 5 of the Statute for the National Reorganization Process (the 1976-83 Dictatorship) .

2.- The Minister of Security maintains that “administrative acts of general scope are a power exercised by the President of the Nation by constitutional mandate (doctrine of the Delfino case)” (Art. 99 inc. 2). Here, the Minister of Security commits a serious mistake, since the Supreme Court says that “… Congress cannot delegate to the Executive Branch or to another department of the Administration, any of the attributions or powers that have been expressly or implicitly conferred. This is a principle uniformly admitted as essential for the maintenance and integrity of the government system adopted by the Constitution… ”, to conclude, the Highest Court says that the Executive Power can issue instructions and regulations for the execution of laws as long as it does not alter their spirit (Case: Delfino y Cía.). And here another error of the Minister of Security is observed, since the Executive is exercising a “permanent authorization” in legislation that violates the powers established in the Constitution for the National Congress.

3.- The Minister of Security observes that “the Executive Power can continue modifying export duties with legal basis in Article 755 of the Customs Code. This norm was ratified by Congress upon ratification of the Argentine Legal Digest ”. The serious ignorance of the current Constitution by an official of the Nation, is a warning sign, since it subordinates a constituent mandate (1853) to a law inferior to our fundamental text.

In this sense, it is pertinent to do a little history. In 1853 the Constitutional Convention considered that legislating on export and import rights was a power of Congress. Later in 1860, in a rich and healthy debate between Riestra, Sarmiento and Vélez Sarsfield, the latter said: “We are not dealing with a question of finance, but a constitutional question: what power should Congress have, nothing more” to conclude ” The Constitution does nothing but establish the public powers of a State and the rights of individuals and peoples ”, an issue that seems to be not on the horizon of the Minister of Security.

Once again, the Supreme Court established in the case “Camaronera Patagónica SA v. Ministry of Economy and other s / protection ”, that only Congress has the powers to set taxes, therefore, that Congress recovers its own powers, it will never be controversial, the economy will not be compromised and it will be highlight legal certainty (all concerns that the Minister of Security exposes in his note).

Therefore, I ask the Minister, given that the solution to our problems is in the Constitution, that we respect it, comply with its mandate, honor the powers of each of the powers as established by our founding fathers since 1853 and that he deal with the matter that makes up your portfolio, which is nothing more and nothing less than “security”, an issue that affects millions of Argentines day after day.

If there is a call to extraordinary sessions of Congress by the Executive Power, the issue of export and import rights, in addition to the agreement with the IMF, should be an unavoidable part of the agenda that the President sends.

Let us take advantage of the fall in the 2022 Budget so that Congress ends the anomaly of decades of delegating to the Executive the setting of export and import rights in clear violation of Art 76 of the Constitution and thus comply with the first attribution that the Constitution gives Congress (Art. 75 inc. 1) which is to establish export and import rights.

Congress should pass a law that sets a schedule for the gradual elimination of export duties (it is ridiculous to charge a tax for selling things to the world) in four years (the duration of a presidential term) financed with a 25% reduction in taxes. money transfers by coparticipation to the Provinces (those that put the most on the coparticipation bag, are those where the agriculture pays the most export duties) which, in turn, should lower their spending by 15% at once and last four years or approximately 4% cumulative annually for four years.


Export duties remain unscathed on the horizon

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