The grandchildren and the civil servant (Gabriel Albiac in El Debate)

Spain's Supreme Court has not invalidated the grandchildren law or any other law: it has struck down two sections of the regulation that implemented it, specifically the one that deemed all those who left Spain between 1936 and 1953 to be political exiles. The confusion between law and regulation is at the heart of the matter.

The scene is an old one. Alfonso XIII was on the throne when **Álvaro de Figueroa**, Count of Romanones, declared before Congress: "You make the laws and leave the regulations to me." The phrase is repeated because it remains true: a law only truly exists through the protocols that apply it. And whoever drafts those protocols holds a power that is rarely acknowledged in public.

## What the Supreme Court decided, and what it did not

Two rulings by the Administrative Chamber of the **Supreme Court** have struck down two sections of the regulation implementing what is known as the grandchildren law. They have not touched the law. No Spanish court can invalidate a law passed by Parliament: that would be a breach of duty. What was at issue was the text that determines who qualifies and who does not.

According to critics, that regulation named beneficiaries the law does not list. And it established that, "by default," all those who had left Spain between **1936** and **1953** would be considered political exiles. The law spoke of political expatriation. The regulation extended the concept to anyone who had left in those years, for whatever reason.

## Emigrating out of hunger is not going into exile for political reasons

The forties and fifties were times of extreme economic hardship. Those who could seek survival abroad did so, and survived in dire conditions. It was a sad, economic epic, not a political one. No more and no less respectable than political exile, but different. The law passed by Parliament spoke of political expatriation, and applying that "by default" to economic emigration was a leap the regulation took on its own.

There lies the crux. Not in an alleged rebellion of judges against the legislator, but in whether a civil servant can expand by decree the universe of beneficiaries a law does not list. The Supreme Court's answer, in these two cases, has been no.

## The narrative of a clash of powers

On that technical distinction, a far more profitable narrative has been built: that the **Supreme Court** had struck down a law of Parliament, which would be a flagrant transgression of the separation of powers. It is the thesis that the Prime Minister, **Pedro Sánchez**, and his media machine repeat to intensify their offensive against judicial independence.

The operation is clever in two ways. It harvests votes among those who feel wronged in their rights, and it discredits the only counterpower that worries an Executive with part of its leadership facing the courts. All it takes is to instill the certainty that the Supreme Court has abusa Parliament's authority. What peine is inverted: the power that strikes appears as the one struck.

## The civil servant and the regulation

The regulation is not signed by a judge or a member of parliament. It is drafted by an appointed official, serving the boss who pays them. Hence the title of the matter: the grandchildren and the civil servant. The law is made by the representatives; the detail that decides concrete cases is written by someone nobody elected.

That is not a Spanish anomaly. It is the normal functioning of any administration, and that is why it matters. When the regulation contradicts the law, the citizen has no way of knowing it without a lawyer. And when the Government turns that contradiction into a clash of powers, the citizen can no longer distinguish between the rule that was passed and the paper that applies it.

This article describes an ongoing legal and political conflict. It does not constitute legal advice.