The justiciability of the Guarantee Clause: Argentina and the United States between Thayer and J.H Ely

This Article examines the recurrent topic on Argentine and American constitutional law of how courts should act when deciding cases based on the Guarantee Clause. This constitutional provision was considered a non-justiciable political questionm but in recent cases the Supreme Court has argued that the court can decide when subnational entities are failing in their duty to uphold a republican form of government. At times when the United States’ Supreme Court has opened its doors to hear cases based on this clause, we argue that Federal courts should redefine i. what a republican form of government is; ii. when the republican form of government dies; iii. why should the courts intervene; and iv. how should the Courts intervene.

We argue, based on the Argentine case law and the American scholar literature on the topic, that judges should implement a procedural judicial review based on Ely’s theory and thus prevent an authoritarian decay in the subnational sphere.