¿Does the Constitucional Control by the judicial brunch over the legislative brunch is an (in)direct control over the executive brunch? An approach from Haberma´s theory ¿El Control de Constitucionalidad del Poder Judicial sobre el Poder Legislativo es un control (in)directo sobre el Poder Ejecutivo? Una aproximación desde la teoría de Habermas

Abstract

The article explores an unusual theme concerning the relationship between the three branches of government in the Argentine Republic. Particularly, it focuses on the checks and balances between them, and how directly and indirectly they interact when one controls the other.

The singularity of this article is that it is based on Habermas’s “Theory of Facticity and Value”. Through it, the question arose of whether when the Judicial Branch declares unconstitutional a  law from the Legislative Branch, it is not also affecting the Executive Branch at the same time, taking into account that the Executive Branch could have regulated that law, thereby giving its “approval”.

Our interest is to show how declarations of unconstitutionality by the Judicial Branch not only affect the Legislative Branch, but also the Executive Branch in their parliamentarian faculties (according to theArgentine Constitution) which go from validating a law by its promulgation  (generally though a regulatory decree) to the exceptional faculties to legislate that the Legislative Branch has delegated, or to the initiative to present bills to Congress  that might become laws. To this purpose, we make use of the Argentine case and its presidential system.