Disputed rules of Law in Argentina & US
History is in play when O’Grady judiciously criticises Milei's Supreme Court nomination, and the WSJ judiciously questions a Supreme Court decision..
EXHIBIT 1 from WSJ
Milei’s Supreme Court Misstep: He promised to clean house. So why has he nominated an icon of the old guard? By Mary Anastasia O’Grady, May 19, 2024
Argentina’s President Javier Milei, who calls himself a libertarian, is under attack from the right—again. … It’s about his nomination of Judge Ariel Lijo to fill a vacancy on the five-member Supreme Court.
Legal experts, civic organizations and business groups that otherwise support Mr. Milei’s agenda want the president to withdraw Judge Lijo’s name. Criticisms range from claims that the judge is professionally unqualified to allegations that when a case comes before his court involving the well-connected, he manipulates things to benefit them.
Argentina’s weak rule of law is an impediment to economic development because investors don’t trust the system. Judge Lijo, 55, is part of that system. For 20 years he’s served on the federal criminal-court circuit, which handles investigations as well as trials of organized crime, money laundering, corruption, terrorism and other offenses. The circuit includes 12 judges in Buenos Aires, where the court has earned a reputation for helping politicians and crony capitalists escape accountability.
Hard proof of this isn’t easy to come by. But there’s plenty of circumstantial evidence. One recurring complaint from corruption fighters is that crooked judges paralyze investigations of big fish for years. As to investigating a judge, that’s left up to the other members of the court. …
… On May 7, Será Justicia, a respected nongovernmental organization in Buenos Aires that focuses on the rule of law, presented a 45-page challenge to his nomination. It highlights a 2016 request by the Bar Association of Buenos Aires, Será Justicia and another NGO to audit excessive delays of corruption investigations. Argentina’s Council of Magistrates agreed to conduct the audit and, as Será Justicia reported, there were indeed “great delays in judicial work” as well as “a very low percentage of convictions.” The audit resulted in a complaint against Judge Lijo and a colleague.
Será Justicia’s challenge says that the names linked to cases allegedly delayed by Judge Lijo include former Presidents Cristina Kirchner and Mauricio Macri. “Mr. Lijo seems to be a judge, who after so many years in the office, knows the procedural and legal mechanisms necessary to become a great provider of impunity, camouflaging his actions under a feigned performance in favor of the evolution of the judicial process in question,” the NGO concluded. It also raised questions about unexplained Lijo wealth.
When I asked Judge Lijo in writing last week about such charges, he emphatically denied any impropriety. He said he has never been “sanctioned, warned, nor had any type of disciplinary recommendation.” The “assertions pertaining to my assets and wealth and family relations are false,” he wrote. As to the allegations that he delays cases to protect suspects, he pointed to the complexity of the investigations that come before him, noting many procedural and technical steps and a wide array of players.
But that doesn’t explain his record. The Civic Association for Equality and Justice in Buenos Aires also objects to his nomination. It notes that Judge Lijo “is among the judges most reported to the judicial council, with an average of 1.6 disciplinary complaints per year since he has been a judge (32 total complaints).” Out of “89 corruption cases that were in his charge, 26 remain in the investigation period” and 13 of those have been under investigation for 10 years or more. Out of 89 cases, “he elevated only 14 to oral trial,” the fourth-lowest proportion among his colleagues.
Judge Lijo also was the subject of a money-laundering and corruption investigation, dropped in 2020 for lack of evidence. That decision isn’t public, but to boost the nation’s confidence Judge Lijo could make it so.
Mr. Milei’s intellectual godfather, economist Alberto Benegas Lynch Jr., has expressed concern about the nomination. “It alarms me that a judge has been proposed who appears to be the opposite of Alberdi,” Mr. Benegas Lynch wrote in the newspaper La Nacion in April.
Juan Bautista Alberdi (1810-84) was a classical liberal political theorist who was influential in the development of the country’s 1853 constitution. …
… During the campaign Mr. Milei pledged to run the governing elite out of town. “A different Argentina is impossible with the same old people,” he said. Now he’s nominated a judge to the Supreme Court who epitomizes the status quo. Argentines are justified in their disappointment.
[MH: Social Science Files — Alberdi is a hero of mine and I once impersonated him — “So, now the vultures are circling. And they are not the cute local Condoritos. … The birds come home to roost, and this time the birds are Vultures. The Argentine political elite could stop throwing out carcasses for them to feed on. Le saluda atentamente, Juan Bautista Alberdi”.]
EXHIBIT 2 from WSJ
A Supreme Court Victory for the Administrative State. A 7-2 majority blesses the CFPB’s auto-funding scheme over a dissent.. By The Editorial Board, May 16, 2024
Who says the Supreme Court’s conservatives rule in lock-step? On Thursday a heterodox 7-2 majority upheld the Consumer Financial Protection Bureau’s novel funding scheme (CFPB v. Community Financial Services Assn.). Behold the varieties of Constitutional originalism.
The Court’s majority construed this to mean that executive agencies simply cannot tap the Treasury without Congress’s approval—not a constraint on Congress from funding agencies by a variety of means. “Specifying the source and purpose [of funds for an agency] is all the control the Appropriations Clause requires,” Justice Clarence Thomas writes for the majority…
… Justice Thomas harks back to the struggles between the British Parliament and the King for control over the purse, noting some laws “gave the Crown broad discretion regarding how much to spend within an appropriated sum.”
What’s more, “appropriations of ‘sums not exceeding’ a certain amount were commonplace immediately after the founding.” …
… Not so fast, Justice Samuel Alito writes in a potent dissent joined by Justice Neil Gorsuch that also draws on history. The Constitution’s appropriations clause, Justice Alito notes, was intended to prevent the President from circumventing Congress, as the Crown often did with Parliament.
“Although the Constitution does not require that appropriations be limited to a single year, that was the dominant practice in the years immediately following the adoption of the Constitution,” Justice Alito writes. The CFPB’s funding scheme may share an element or two with other agencies, but it has no direct historical precedent.
“Elements that are safe or tolerable in isolation may be unsafe when combined. In the case of the CFPB, the combination is deadly,” Justice Alito writes. “And it is likewise clear that this assemblage was no accident. Rather, it was carefully designed to give the Bureau maximum unaccountability.” He’s right. Democrats wanted to shield the CFPB from funding discipline. …
… “These may or may not be wise policies, but Congress did not specifically authorize any of them, and if the CFPB’s financing scheme is sustained, Congress cannot control or monitor the CFPB’s use of funds to implement such changes,” the Justice writes.
“It is not an exaggeration to say that the CFPB enjoys a degree of financial autonomy that a Stuart king would envy.”
We agree. …
[MH: Social Science Files will soon be covering the English history segments of the long struggle to create and maintain a functional separation of powers. I previously introduced it thus — “In the 1630s .. it seemed possible that … this particular monarch intended to dispense with parliament altogether. In principle, parliament had broad consultative and legislative roles, but in practical terms its function was to supply the king with finance and lend legitimacy to that transaction. Since no taxes could be raised without agreement of parliament, alternative methods of financing expenditure must rely on the king’s legitimate prerogative powers. Depending on how royal prerogative was interpreted by law courts, it would, therefore, have been feasible for King Charles I to rule alone (he would not need three bodies, not even two).”
My thanks to the Wall Street Journal and conservative Condorito [on the Chilean rather than the Argentine side of the Andes]
Dr Michael G. Heller
