Executive Legislative Power: Decrees and Delegated Authority

Understanding Executive Legislative Power

The Executive Council (EC) is granted legislative power, enabling it to create rules in the form of subordinate legislation. These rules possess both active and passive force compared to those issued by other state powers. The Government (CG) shares legislative power with the Autonomous Community (AC) legislatures.

Types of Government Legislative Measures

While not laws in the formal sense (as they are not dictated by the legislative organ), two primary types of government legislative measures possess the full force of law and are binding:

1. Delegated Legislative Decrees (Decreto Legislativo)

A Delegated Legislative Decree is a government legislative measure containing rules with the force of law, granted by Parliament. This power is exercised when the Executive Council (EC) allows the Government (CG) to make rules with the force of law, delegated by an Enabling Law, under specific assumptions and limitations.

Enabling Law Requirements

An Enabling Law (Ley de Bases or Ley de Delegación) requires:

• Formal legislative powers granted by law.
• Expressed, not implied, delegations.
• Explicit delegation to the government.
• Specific subject matter.
• A defined period for exercise.
• Authority that is exhausted once used.

Classes of Enabling Laws

• Basic Law (Ley de Bases): Articulated texts for specific subject formation, requiring full parliamentary approval.
• Ordinary Law (Ley Ordinaria): Used for consolidating several legal texts into one (e.g., a consolidated text).

Limits on Delegation

Delegated legislation cannot affect areas governed by:

• Organic Laws (LO).
• Harmonization laws.
• Budgetary functions.

Effects of Delegated Decrees

Delegated Legislative Decrees are adopted by government regulation with the force of law, effective from their publication until repealed.

Control Mechanisms

Control involves a double constitutionality review of the legislative act itself and the government's exercise of legislative power based on the received empowerment. Three subjects can exercise this control:

• The Government (CG)
• The Constitutional Court (TC)
• Parliament

2. Decree-Laws (Decreto Ley)

A Decree-Law is a temporary legislative provision issued by the government in cases of urgent and extraordinary necessity. The government exercises this power on its own authority, which derives directly from the Constitution, without requiring prior delegation.

Conditions for Issuance

Decree-Laws are issued in situations of urgent and extraordinary necessity, such as:

• Cases where government targets must be met.
• Difficult circumstances requiring immediate regulatory action.
• Economic conditions demanding a rapid response.

Scope Limitations

Decree-Laws cannot affect:

• The basic order of state institutions.
• Fundamental rights, duties, and freedoms of citizens.
• The Autonomous Community (CA) regime.
• General election law.

Provisional Validity

Decree-Laws have a provisional validity of 30 days after promulgation, during which they must be ratified by Parliament to remain in force.