Regulatory Gaps and Constitutional Tensions in the Power of Administrative Forced Intervention and Takeover by the National Health Superintendence in Colombia

Abstract

This article analyzes the power of compulsory administrative intervention and takeover exercised by the National Health Superintendency (SuperSalud) in Colombia, which derives from the authority granted at the legal level, under the pretext of guaranteeing the continuity and quality of essential public health services. However, its application to State Social Enterprises (ESE) has revealed regulatory gaps, as it has been supplemented by the Organic Statute of the Financial System (EOSF), which was designed for a context other than health. Based on the question, “What constitutional tensions arise from the forced administrative intervention and takeover of ESEs in the Colombian health system?”, the research conducts a regulatory and jurisprudential review, studying the legal nature of SuperSalud's functions, the absence of a special intervention regime in the health sector, and the implications of this gap in relation to the principles of necessity, reasonableness, and proportionality. The findings show that the lack of specific regulation creates tensions with the constitutional principles that underpin the social rule of law, affecting the legal certainty and administrative autonomy of the ESEs. The central thesis argues that it is urgent to create a specialized statute for the health sector, based on principles of necessity, reasonableness, and proportionality, which clearly defines the grounds for state intervention, establishes the gradual phases of the administrative procedure, and creates alternative mechanisms prior to taking possession, in order to guarantee the participation of territorial entities