The approval or annulment of the legislative decrees by the Constitutional Court depends, in principle, on the court recognizing the urgent need to take the measures provided for therein. There is currently a great debate in the guarantee authority on this issue, since the assessment of these two circumstances – whether a particular decision is necessary and also urgent – can involve more or less subjective judgments. In general, the court avoids assuming the role of the government itself in assessing both requirements. That is, the judgments do not usually directly assess whether the two circumstances mentioned above occurred in each of the cases analyzed, but rather the analysis refers to an adequate justification of the reasons on which the government assesses the urgency and necessity had to. If the argument was valid in this regard, the legislative decree in question has a good chance of being adopted, and if not, it is very likely that it will be annulled.
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In the case of the omnibus decree approved by Congress, for which the leader of the PP, Alberto Núñez Feijóo, has announced an appeal to the Constitutional Court, sources from the court itself believe that, in the event of a final challenge, it would be subject to a lawsuit for detailed analysis of each individual measure . In this context, attention is drawn to the variety of decisions considered, including, for example, efficiency and digitalization measures, as well as others related to public functions or patronage. And all this within the framework of commitments with the European Union (EU) to receive the fourth aid disbursement worth 10 billion euros. Without prejudging the forecast of a possible appeal against this collective law decree, the sources consulted considered the thesis of urgent needs in the context of the level of the above-mentioned European funds and their use for policies of high public interest to be very defensible. The same sources considered the same criterion to be applicable to the measures taken in response to the consequences of the wars in Ukraine and Gaza, for example due to their economic impact and the extension of the same impact to broad social sectors equally affected by inflation .
During the time of Mariano Rajoy (PP) in government, important legislative decrees were passed that helped to open this debate on the origin of the approval or repeal of the measures that included them. A clear example of this was the decree that denied access to public healthcare to immigrants who had not legalized their stay in Spain. The conservative majority in the Constitutional Court at the time supported this demand, which motivated opposition and individual voting against the progressive minority.
The opposite already happened with the government of Pedro Sánchez (PSOE), when, for example, various legislative decrees were examined that the executive tried to justify in the context of the health alarm. Then the conservative part of the court favored the annulment of some decrees – for example the one that annulled the appointment of Pablo Iglesias to the management body of the National Intelligence Center (CNI), while the progressive part denied that the President of the Government has the task of to assemble its teams and the leadership of organizations that could be crucial in emergency, health or other situations. In another similar debate, the Constitutional Court split when it came to the inclusion of reciprocity of officials in one ministry or another, an issue on which the progressive minority defended the full autonomy of the government, in this case without the need for one to justify an urgent need.
A legislative decree for which a decision to repeal was first prepared and then adopted, given the different criteria between conservatives and progressives, was the Law on the Right to Equality, which extended paternity leave to make it equal to maternity leave. The debate over the appeal began when there was still a conservative majority on the court, and the speaker from this area, Alfredo Montoya, proposed the repeal of the rule. But the matter was pending for a while when Montoya fell ill and had to leave court after a year to better pursue his treatment. The change of speakers put the case in the hands of the current President of the Constitutional Court, Cándido Conde-Pumpido, a progressive faction, when this sector already represented the majority in the court that favored the legislative decree.
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In this case, as in others from the most recent phase of the Constitutional Law, the approval of the Decree-Law was based on the urgent need for the measure adopted, especially – and this nuance is important – in the context of the impact and social consequences of the pandemic, especially in the most economically disadvantaged sectors. In this sense, the current progressive majority of the Constitutional Court defends that the urgent need for the measures and their justification by the government must be analyzed taking into account the relevant economic and social context.
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