THE SUPPOSITORY CHAINSAW

MILEI'S PERONISM
THE PERONIST DYNAMIC IN HIS REFORMS

MANUEL HINDS
2 ENE 2024

WHAT IS PERONISM?

Argentina's new president, Javier Milei, campaigned urging Argentines to

destroy Peronism, which he rightly accused of having been a curse for
Argentina. He aimed at two of Peronism’s characteristics: its dismal
economic policies and its organization in a clientelist network that has
maintained political power for almost a century. But he never gave
prominence to a third characteristic—the annulment of democracy
Peronism achieved by governing through executive decrees that
concentrated total power in the hands of the president. Looking back, it
makes sense that Milei did not attack that part of Peronism because it is the
one he has copied: the most essential characteristic, the concentration of
power in caudillos like Juan Domingo Perón, Eva Perón, Isabel Perón, and
the Kirchners.

In this vein, at the end of December, Milei sent Congress a National

Emergency Decree (DNU) that would transfer the legislative branch to the
executive (i.e., himself) for two years, extendable for two more years,
which would make him, personally, president and congress for his entire
period. At the same event, the president began to exercise legislative
prerogatives with an omnibus law, which among other things repealed in
whole or in part 30 laws with 300 changes.[1]

This DNU would remain in force only if Congress approves it and if the
Supreme Court of Justice does not strike it down. But the repealed laws
remain repealed. To reinstate them, Congress would have to re-approve
them, which would be easy for Congress. But the actions taken on the
amended legislation in the omnibus law are already creating acquired
rights, so that, for example, if one of the amended laws facilitates the
privatization of a company and the company is privatized, it is privatized.
Many libertarians, including the president, think this is a wonderful
opportunity, for example, to make contracts within labor laws that have
profoundly weakened the right to strike. These contracts are protected
against strikes at those points touched by the omnibus law. Those, however,
are short-sighted people who think either that democracy is over in
Argentina or that people will never vote for someone who will use the same
vehicle (DNU) to repeal all the reforms that Milei is making. Worse, they
fail to realize that by doing this, Milei is opening the door for a Marxist
president to nationalize the entire productive capacity of the country in a
couple of weeks.

No one seems to think that with these actions Milei is destroying the checks
and balances that are essential for liberal democracy. That destruction is a
tyrannical act because it puts the will of one person above that of the entire
country, but it is worse than that because it sets in motion a dynamic that
tends to make the autocracy bigger and bigger.

Milei, who says he loves freedom more than anything, is paving the way for
the country to walk toward serfdom. In the name of freedom, he is trying to
concentrate power on himself, which he will then use to restrict the freedom
of Argentines. Many of the short-sighted will say that he would never use
those powers to satisfy his lust for power. But why should he want these
powers if not to force his ideas and vanity on others?

Anton Chekhov, the Russian storyteller, advised that if you start a story by
saying that there is a rifle hanging on a wall, that rifle should be fired
before the end of the story or removed from the wall because it would be
useless to have it hanging there. Similarly, if a politician hangs a rifle on his
wall at the beginning of his term, it is because he intends to use it. He's
already started using it. There is no doubt that he will continue to use it.

Ironically, by saying that he is destroying Peronism, Milei is retaining its

most destructive component. The concentration of power is what has made
possible his capture of power for so many decades through its client group.
If Milei were to remove all the laws that Peronism has established but
maintain the concentration of power, the source of evil remains, and
Peronism or something worse will return or be born.

Like everything in Argentina, the reality is more complicated than what is

seen at first glance in the discussion of the previous paragraphs. But the
conclusions of this discussion remain after delving into five questions that
one can ask on this subject: Regardless of the way in which they are being
done, are the reforms proposed by Milei advisable? Are they constitutional?
Is it smart to do them this way? Do the right or the left have all the answers
to make it positive to remove the inputs of one of the two? Is the
Argentinian right wing hypocritical when saying that it is in favor of
individual rights while, at the first opportunity, it is trying to impose its
opinions and interests on others in a clear abuse of power?

ARE THE REFORMS ADVISABLE?

Symptomatically, this is the topic that has been most discussed in Argentina
and Latin America in general. Those on the right tend to support the Milei
reforms because they believe they correspond to their ideology, and those
on the left think the other way around. None of them, who normally define
themselves as democrats, stop to think that the way Milei is doing it is
undemocratic.

We should not fall into that temptation in this article. This is the least
important thing at the moment. The important thing is to maintain the
institutional structure of liberal democracy, not to give all the power to one
person to do what he wants.
IS THE DNU CONSTITUTIONAL?

With the cynicism that spreads in Argentina after nearly a century of

Peronist and anti-Peronist abuses, many Argentines say that the DNU is a
perfectly constitutional instrument that all Argentine presidents have used.
This assertion is true, but it hides a false representation of what is the DNU
that Milei is sending to Congress, which goes far beyond the DNUs
approved by the Constitution.

Article 93, paragraph 3, of the Constitution begins:

"The Executive Power may not, under penalty of absolute and irremediable
nullity, issue provisions of a legislative nature."

Immediately afterwards, it sets an exception with the following words:

"Only when exceptional circumstances make it impossible to follow the

ordinary procedures provided for by this Constitution for the enactment of
laws, and it is not a question of norms that regulate criminal, tax, electoral
matters or the regime of political parties, may decrees be issued for reasons
of necessity and urgency, which shall be decided by general agreement of
ministers who must countersign them. together with the Chief of the
Cabinet of Ministers." [2]

Milei's DNU does not meet these requirements, read in perfect Spanish and
by prominent Argentine constitutional lawyers such as Daniel Sabsay.[3] No
constitutional lawyers, except those in the government, say that Milei's
DNU is constitutional. There is no exceptional circumstance that makes it
impossible to follow the procedures provided for by the Constitution for the
enactment of laws, which refer to physical impediments for congressmen to
meet, such as those caused by wars, earthquakes, floods, and plagues. So
much so that Congress, which is in recess, will meet to discuss the DNU.
But more fundamentally, the legislative interventions that the second part of
paragraph 3 of Article 99 approves are very specific things. They do not
include radical changes to the country's economic and political system—
which is precisely what Milei is trying to make.

That the use of DNUs to carry out broad and fundamental reforms is not
constitutional is confirmed because the issue has already been discussed
before by the Supreme Court, which said that it was not in a discussion that
was the reason for the constitutional reform of 1994, which was the one that
wrote paragraph 3 of Article 99. The DNUs had existed since the 1930s
without specifying their boundaries and the Peronists had been using this
vacuum to impose reforms with abuse of power. In 1994, the issue was
discussed, the limits were set, and the Constitution was amended. Now,
Mile wants to remove the limits that were imposed on the Peronists.

There are people who argue that the spirit of decree-based governments is
based on Roman law and that this should be incorporated into the doctrine
in order to interpret Article 99, paragraph 3. Certainly, the Romans had an
institution called the dictatorship to deal with critical situations. But this
institution was more limited than what the Argentine Constitution allows.
The concentration of power that Milei would be achieving with the DNU
would be much greater than that of the dictators in Rome. To begin with,
dictators were appointed by one of two consuls who had been elected by the
people, who in turn were under the power of the Senate. The consuls
continued to run the state while the dictator solved the concrete problem
(called the cause) that had been given to them to solve within the existing
laws and under the general control of the consuls. In addition, the problem
to be solved had to be concrete and specific—such as, for example,
defeating Hannibal when he invaded Italy. And they could not take
measures that would affect the rights of the Roman people.[4]

Of course, the final word rests with Argentina's Supreme Court. However,
the views of constitutionalists are very clear that the use of DNUs for
Milei's purposes is unconstitutional.

IS IT A SMART MOVE?
Aside from whether it's constitutional, it's important to ask whether it's
smart to make reforms this way if the goal is to make them sustainable.
There is no point in doing them if, in a rebound of voters' preferences, the
opposition wins presidential elections in the future and uses the same
methods to undo everything Milei has done and imposes some exotic
doctrine such as communism in a few days.

The problem in making sustainable what Milei says he wants would not
come only from the Peronists and the communists or the opposition, but
from Milei's own supposed ranks. Of course, there will be investors who
are dazzled by the possibility of turning Argentina into a libertarian
paradise in a month, but most investors are much colder than this, and what
they will think is that nothing seems more unsafe to invest in than a country
that can turn its legal order around in a month by following the will and
ambiguous promises of a single man—ambiguous because he speaks of
liberty but acts to concentrate power in the manner of a Chekov rifle. After
reflecting for a while, they would think that this has been the curse of
Argentina, that the fragility of its institutions is the cause of its fall from
being one of the richest countries in the world to being a country full of
poverty now, and that if Milei uses that weakness again to make the
changes he wants, he will not destroy Peronism but strengthen its spirit.

Argentina is not going to develop a solid liberal democracy with these

tricks, and without a functioning liberal democracy capitalism is not going
to work well either—it is always going to be adjusted or eliminated by new
tricks.

In fact, one of the strategies that the Peronists could take in response to
Milei's moves could be to approve the DNU, thereby gaining two major
strategic advantages. The first is to give him all the rope so that Milei hangs
himself because the battle to pass the laws is nothing compared to those that
would come once they have been passed only by Milei. Just imagine a
storm in which all the lightning strikes at one point. And the bolts of
lightning generated by reforms that take away all social benefits at the same
time would be very numerous. After a while, all the problems, those that
came from the Peronists and those from Milei, will be blamed on Milei.

The second advantage would be to open the way for them to win the
elections at the end of Milei's term and apply the same measure, the DNU,
to end everything Milei has done.

DO THE RIGHT OR THE LEFT HAVE ALL THE

ANSWERS?

Both the right and the left think they have all the answers to the questions
of development, and in this, they are both wrong. There is no sustainable,
developed society that is formed with inputs from only one of the two.
Reality is so complex that not only opinions but realities look different
depending on the point of view. In order to achieve balance and progress, it
is necessary to act in all the different dimensions that different observers
derive from reality. All developed countries are based on liberal
democracy, which arises from this inclusion of realities and opinions. In the
design of the reforms that need to be carried out in Argentina, it is essential
to use the intellectual and real resources of both the left and the right. It's
not just to get votes. It is also to design better policies.

Countries that designed their policies with only the ideas of one ideological
side in mind—such as Nazi Germany and the Soviet Union—led their
countries to horrific tragedies and then to great poverty. Instead, liberal
democracy led to the creation of the world's most developed societies, each
with a different ideological flavor—from the United States to the Nordic
countries, all equal in being based on democracy and individual rights, all
different in the ways in which they achieved their social cohesion. Now
Argentina is in a position to show that it has learned. If it hasn't, it doesn’t
have a future other than changing sides every few years, with each change
going to extremes.

IS THE LATIN AMERICAN RIGHT HYPOCRITICAL?

This is Argentina's moment of truth. This is the moment when you can
abandon the path of shortcuts, which is the path of Peronism, and opt for
the institutions of liberal democracy, which seem slower but are effective in
achieving development, freedom, and the rights of the individual. This is
the time for those in power and all Argentines to review history and see that
those who have ruled by executive decree throughout history have led their
countries to economic failure and great tragedies, recently in the 20th
century—such as the emperors of the Second Reich and the presidents and
chancellors of the Weimar Republic, the Tsars of Russia, the emperors of
Austria, the Nazis and the Communists—and in antiquity, like in Rome
itself. When two dictators, Sulla and Julius Caesar, broke the institutionality
of dictatorship and turned it into an instrument of total power, they led
Rome to the bloodiest of its civil wars and then to the loss of democracy
and the final collapse of the empire.

Milei has threatened Congress that if it does not approve his DNU, he will
hold a referendum to change the Constitution in the Chilean way. This is
what Milei should do whether he gets approved or not. Chile did the right
thing and it came out very well. Chilean governments of the left and right
now have the certainty of knowing very clearly what the people want and
have opened the way for a society without fundamental conflicts. That
stability is essential for the balance of society in the future.

Argentina will not have that advantage if Milei makes his reforms by taking
the shortcut of executive decrees. If he does so, no one, not even himself,
will have the security that the country needs to get out of its imbalance once
and for all. On the contrary, if forced, his reforms will raise the spirits of an
opposition that will do the same as him but in reverse.

This is the moment of truth for the Argentine and Latin American right. Is it
really democratic, or does it just want to do away with social laws, good
and bad at the same time, at all costs? Do they really believe in liberal
democracy, which is based on taking into account everyone in government,
those who think like us and those who don't? Do they really believe that
stability and progress are linked to the development of democratic
institutions rather than to giving total command to a single person?

Milei, his collaborators, and the Argentine right now hold the country's
destiny in their hands. They should not miss this opportunity believing that
they are going to solve in 15 days or a month the problems that Argentina
has accumulated for an entire century. It is better to take the path of Chile,
and be consistent with the ideology of true liberalism, which has to do with
how power is handled in a way that respects individual rights, which
include freedom of thought and respect for diversity.

Argentina now faces this challenge, but it is common to all of Latin

America. Throughout history, the region has abandoned institutions in favor
of charismatic leaders who offer shortcuts to the right and the left. Many
people think that the world is divided into the good and the bad guys, with
each of them defined by how close their ideology is to theirs. Those who
think this way will end up equally badly because the world will continue to
be diverse, and there are only two ways to handle diversity: with respect for
opinions and interests different from our own or with bloody tyrannies that
do not manage diversity, but try to eliminate it with violence. To achieve
stability and progress, we need to unite all of us who believe in the first
option, both on the left and the right, and work for a democratic order that
is the only one that can stop the advance of tyrannies.

--------

Manuel Hinds is a fellow at the Institute for Applied Economics, Global

Health, and the Study of Business Enterprise at Johns Hopkins University.
He shared the Manhattan Institute's 2010 Hayek Prize. He is the author of
four books, the latest of which is In Defense of Liberal Democracy: What
We Need to Do to Heal a Divided America. Their website is
manuelhinds.com
[1]
The full text of the DNU announced by Javier Milei on Thursday,
December 21, 2023, La Nación, https://www.lanacion.com.ar/politica/el-
texto-completo-del-dnu-que-anuncio-javier-milei-nid21122023/
[2]
See the Constitution of the Argentine
Nation: https://www.oas.org/dil/esp/constitucion_de_la_nacion_argentina.p
df
[3]
Television statements by Daniel Sabsay, Argentinian constitutionalist,
[4]
Theodor Mommsen, The History of Rome: From the Foundations of the
City to the Rule of Julius Caesar, e-artnow, 2018, Kindle Edition.