The Risks Democracy Is Running
Almost all modern democratic constitutions allow for the sporadic use of the so-called “emergency legislation”. In other words, when a severe crisis unfolds and the danger is imminent, governments can issue legislation that becomes immediately applicable without a preliminary vote from parliament.
Most modern democracies have employed this type of legislation within their constitutional perimeter without necessarily eroding their respective democratic principles. However, some concerning trends have been emerging in Italy and abroad.
Emergency legislation in Italy
Only in cases of extraordinary urgency and necessity does article 77 of the Italian Constitution allow the cabinet to issue decrees having the force of law. They are the so-called decreti-legge, which become immediately applicable after being presented and required to be voted within 60 days. The fast applicability and the short timeframe are meant to enable fast decision-making under dire circumstances when the voice of minorities and the accumulated knowledge of legislatures cannot significantly increase the quality of legislation.
In the first decades after WWI, the Italian cabinets have been largely respectful of the spirit of the constitution. Yet, from the late ‘70s onwards, Italian cabinets have expanded their use of the decreto-legge well beyond their original scope, starting to regulate virtually all policy areas by decree. This trend has continued until today despite multiple attempts by both the Constitutional Court and various Presidents of the Republic to impose self-restraint to the executive. Even well into the 2000s, it is not uncommon for decrees to make up more than 80% of all the legislation presented by cabinets (excluding those sources mentioned in article 72 of the Italian Constitution).
Executive legislation abroad
The tendency of cabinets to make strategic use of executive legislation surely is not an Italian exception. Other European states, such as Spain, make abundant use of the decreto-ley. On the other side of the Atlantic, the phenomenon of “decretismo”, or the abuse of decree legislation in South American countries, has been studied more attentively. Brazil, where decrees are constitutionally regulated similarly to Italy, is one of the examples where governmental decrees have gotten progressively out of hand during both progressive and conservative governments. In Argentina, the liberal use of decrees to overcome the parliamentary opposition became the new normal in the Menem and Kitchener (Nestor) years, and they have been contributing to the wave of protests seen in Buenos Aires this last winter.
Likewise, the US executive branch makes abundant use of presidential decrees to achieve multiple objectives. Recent studies show that even though American voters do not approve of executive legislation on average, they may not sanction an ideologically aligned president (Rogowski, 2021). It has also been found that Presidents allocate disaster funds by decree more generously to swing states. In times of greater political radicalization, this is quite concerning (Reeves, 2011).
Why are executive decrees so common?
There are two main reasons behind the unbridled use of decrees: lack of institutional constraints and the existence of reinforcing incentives. In Italy, the Constitutional Courts have been only partially successful in containing the senseless derailment of executive legislation in the ‘90s. On the other hand, other institutional actors have not been able to influence the behavior of leaders towards a greater adherence to democratic norms. A system of structural incentives is also making the picture more complex. Governments supported by fragmented majorities often survive on delicate compromises. The use of decrees allows them to pursue their policy goals despite the unruliness of some coalition partners. Similarly, when governments enjoy a large and solid majority, they feel emboldened by the strength of the popular mandate. Finally, the ability of governments to set the parliamentary agenda is often limited by disagreements between parliamentary groups. Therefore, decrees are seen as a tool to gain control of the policy agenda.
Should we worry?
Even if current events and the data reported in this article may seem to cloud all optimism, the use (or abuse) of decrees alone will not maim democracy here or anywhere else. It is not because of faulty legislative procedures that other countries have ceased to be first-tier liberal democracies, for the content of legislation is far more impactful than the means through which it is implemented. Nevertheless, the means and ends of policy are seldom unrelated. In times of social conflict, radicalization and inequality, weaker procedures may lower a democracy’s immune system. If anything will ever bring irreparable damage to the Italian democracy, it will not be the decreto-legge. But the democratic norms that we enforce by limiting its use will surely make this country much more resilient.
