On 4 May 2021, the Supreme Court of Justice of the Nation (the “CSJ”) upheld the claim of the Government of the Autonomous City of Buenos Aires against the National State, which ordered the suspension of face-to-face classes through the Decree of Necessity and Urgency N° 241/2021 (the “DNU”).
The Government of the Autonomous City of Buenos Aires had asked the CSJ to declare the unconstitutionality of Article N° 2 of the DNU that suspended face-to-face classes in the metropolitan area (AMBA) for two weeks, and to order a precautionary measure to suspend the effects of this article of the DNU.
Rationale of the CSJ:
- The article in question violated the autonomy of the City of Buenos Aires and implies a federal intervention in which the National State attributes powers to itself over local competences, in health and education.
- The issue should be dealt in the Congress and not through a DNU, as it is not in recess and can deal with urgent matters (Article N° 99 inc.3 of the National Constitution).
- The City of Buenos Aires and the provinces may regulate the opening of schools in accordance with the provisions of the National Education Law N° 26.206 and Resolution N° 387/21 of the Federal Education Council, prioritising the opening and resumption of face-to-face classes in a staggered manner.
- The National State can regulate the exercise of the right to education concurrently with the provinces, but it cannot replace them or decide autonomously to deviate from the legal regime in force (Law 26.206).
- The epidemiological, scientific and empirical data presented prove to be insufficient for the drastic decision of the National State to trample on the autonomy of the City.
Beyond ratifying the status of the City of Buenos Aires at the level of a province or a federated city, the Court holds that the National State delineates the basis of education, but must respect provincial and local particularities. “It corresponds to the Autonomous City of Buenos Aires –as well as to the provinces- the power to decide on the ways to promote and ensure the education of its inhabitants”, the CJS stated in its resolution.