It would take a multi-volume monograph just to address the constitutional fit of the twisted use that all Governments have made of the Decree-Law figure. This instrument represents a breach of the principle of separation of powers by giving the executive the capacity to legislate immediately. An exception included in art. 86 of the Constitution, which begins its wording by requiring as a basis a: “case of urgent and extraordinary necessity”. This formula, no matter how much the Constitutional Court (TC) has consolidated it again and again as a limit with legal value, has never been imposed on the political interests of the moment. In other words, the Government in power – be it PSOE or PP – has used this figure at its convenience and no one, not even the TC itself, has stopped them.
Apart from this discussion, which is considered so lost that it barely leaves the academic sphere, the focus of unconstitutionality again points to the Government's attempt to approve a new 'Maricarmen decree' taking advantage of the fact that in the Permanent Deputation they do have a majority that they did not have in the already dissolved Congress. Thus, the question of "extreme and urgent necessity" is revisited, which if it is already ordinarily required, much more so when it comes to the Permanent Deputation, a body not designed to legislate but to give permanence and continuity to the Cortes Generales in periods of dissolution. Put another way, and in purity, nothing that can wait more than two months should be able to be validated by the Permanent Deputation.
Sources close to the Government recall that there have been precedents of Decree-Laws submitted to the Permanent Deputation, and that the current housing situation can be considered of "extreme and urgent necessity." However, this is difficult to sustain at a legal level since the housing problem in Spain has been notorious and manifest for some time, especially since the COVID-19 pandemic. Trying to legislate now by urgent means something that has been reproached to the Government for years does not generate a very convincing argumentative substrate about the unpostponable need for that Decree-Law.
Furthermore, this is a case with a very marked idiosyncrasy. The Decree-Law that the Government seeks to validate intends to emulate the very one that Congress already rejected just a few days ago and which led, thanks to organized social movements, to the decision to call elections. Again, this appearance of causality between the repeal of the Decree and the dissolution of the Cortes, followed by this attempt at validation before the Permanent Deputation, does not generate a solid argument in favor of the constitutional fit of this movement.
The Constitutional Court has the monopoly to rule on the constitutionality of this maneuver, although little is expected from it in this matter. The TC has been excessively permissive with these issues and has not been able to protect another key constitutional principle in this matter: the legal certainty of thousands of tenants, who see how fundamental legislation for their lives is tossed around in the BOE, with periods of validity of hours to later be repealed and, eventually, re-approved without the guarantee that the next Government arising from the polls next month will maintain the measures. The tenants of this country need security, guaranteeing legislation, and recognition of rights with a vocation for permanence. As negative as the absence of legislation is shoddy and unguaranteed legislation.
