Legislative decrees, excesses of delegation and judicial review: a new approach to a problem that is not really a problem

Abstract

In Spain, the Law of the Constitutional Court, the Law of Administrative Courts and the case-law have all recognized the competence of ordinary courts to review the ultra vires excesses of the Government’s Legislative Decrees, together with that corresponding to the Constitutional Court. However, there is not scholar agreement on the subject: while a majority of authors accept such dual jurisdiction to be shared between the ordinary courts and the Constitutional Court in accordance with the actual legislative and case-law praxis, some authors considering that the Government’s Legislative Decrees have an unconditioned legislative rank allocate that competence of control solely to the Constitutional Court, denying it to the regular courts, who would only be competent to check the correct processing of the delegated governmental legislative regulations. Both scholar positions contain inconsistencies: the mere infra-legislative rank of ultra vires Legislative Decrees, that would support their judicial review by the ordinary courts, only emerges with a final judgement, but it does not at the previous time of their initial sueing, while the theory supporting the Constitutional Court’s monopoly seems to be based upon a contra litteram construction of the plural «Courts» used by Article 82.6 of the Spanish Constitution on the issue. This paper proposes an integrated approach of both doctrinal paradigms, by means of considering the legislative rank of the Government’s Legislative Decrees to be a constitutional fiction conditional on their adjustment to their respective Parliament’s Act of Delegation, and by attributing a substantial value to the plural «Courts» employed in the aforementioned constitutional provision, in accordance with the actual legislative and case-law practice, all of which would constitute an exception to the concentrated nature of the Spanish model of judicial review of primary legislation.