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.

Federalism, state autonomy and gender violence in Argentina

Federalism is attractive because it offers an analytic and a history of practices demonstrating the capacity to sustain toleration within polities of plural legal norms. Although it has been argued that federalism way favors the protection of rights and multiculturalism, it finds problems in the application of laws that establishes minimum levels of rights.

In 2009, the Argentine national congress passed a law that address the violence suffered by women. In effect, the law was enacted as a matter of public order and specifically establishes minimum levels of protection for women victims of gender-based violence.
Some provinces resist the application of this type of law, meaning that its implementationin certain jurisdictions is stressed and fuzzy, causing severe situations of inequality between people living in different provinces. We conclude that the federalism is not enough to satisfy the needs of vulnerable groups, demanding articulation between the national State and local units.

The Passing of Dual Federalism and what it means today – The Argentine case.

This paper analyses the case for marbled-cake federalism implied in the passing of the dual federalism and the emergence of the cooperative federalism. In this framing, the concurrence of powers can increase fragmentation and inconsistency of criteria, and the Argentine Supreme Court decisions were looking for the proper way to adjudicate disagreements and clashes among the Federal State and the Provinces.

Even with a lack of grand unified theory, and in a minimalistic way, we see that the Court tries to balance three aspects: (1) the consideration of the rights perspective as a constitutional boundary, (2) the purposive -and efficiency oriented- frame of a federalism of complementation on the basis of the “federal loyalty”, and (3) the weighing of the pactum foederis as a customizable device with the concept of a federalism by contract based on intergovernmental agreements on disputed issues.

The shipwreck of the argentine federalism

Argentine federalism, as it was thought and argued for 140 years, has been shipwrecked. Its historical federalism responded to a categorical model where the barriers of the federal and the provincial were not only well established but also they provided certainty and they limited conflicts.

This has changed as the constitutional reforms of 1994 has not only made variations that directly affect Argentine federalism, but also carried out one of the most emblematic reforms that generate a resounding echo in the federal system.

The inclusion of human rights treaties with constitutional hierarchy impacted on what the provinces can and must do within their exclusive powers, since they find in this normative recognition a deep and extensive limit to their actions. These reforms would become the iceberg that damaged the institutional ship, and lead to the need to rethink federalism in light of the new constitutional commitments and moving from a provincial point of view to a citizen one.