Taming the Prince: Bringing Presidential Emergency Powers Under Law in Colombia

22 Pages Posted: 24 Oct 2018

See all articles by Andrea Scoseria Katz

Andrea Scoseria Katz

Washington University in St. Louis - School of Law

Date Written: Fall 2018

Abstract

Can courts check presidential power exercised in a crisis — and should they? The case of Colombia, which recently turned on its head a history of presidential overreach and judicial rubber-stamping, provides an answer in the affirmative. As in much of Latin America, throughout Colombia’s post-independence history, bloodshed fueled authoritarian tendencies, with presidents exploiting the need for “order” to centralize power. One critical weapon in the presidential toolkit was the power to declare a state of emergency. During the twentieth century, these decrees became a routine pretext for the President to govern unilaterally, acquiesced to by the legislature and rarely challenged by the courts.

That pattern has since come to an end. Since 1992, the Constitutional Court has proven an unexpectedly strong counterweight to presidential power, especially in its strict review of presidential emergency decrees. Under a model of substantive judicial review, the Constitutional Court has taken for itself the authority to review the factual basis giving rise to a crisis, and the adequacy of the President’s rationale for declaring it. Decrees that, as in the past, attempted to manufacture a crisis or which would exceed the President’s constitutional powers have been struck down. This paper discusses some of the Court’s successes in that ambit, and argues for the portability of this model to other national contexts.

Keywords: Presidential Power, States of Emergency, Colombia, Colombian Constitutional Court, Judicial Review

Suggested Citation

Katz, Andrea Scoseria, Taming the Prince: Bringing Presidential Emergency Powers Under Law in Colombia (Fall 2018). Available at SSRN: https://ssrn.com/abstract=3258631 or http://dx.doi.org/10.2139/ssrn.3258631

Andrea Scoseria Katz (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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