EXECUTIVE SUPREMACY VIS-À-VIS CONSITUTIONAL BRANCHES
COORDINATION *
Antonio Sepúlveda†
Carlos Bolonha††
Igor de Lazari†††
SUMÁRIO: I. Initial considerations; II. General aspects of Executive
Supremacy; III. The [Convenient] Brazilian Executive Supremacy:
Constitutional Amendments and Provisional Measures; a. The
Constitutional Redesign: Constitutional Amendments; b. The Legal
Redesign: Provisional Measures; IV. Final considerations; V.
References.
SUMMARY: Both Brazilian and American constitutional systems presupposes constitutional
Branches coordination. “Supremacy”, therefore, corresponds to a constitutional distortion.
Contemporary doctrine often supports Judicial Supremacy, fundamentally based on judicial
constitutional hermeneutic prerogative of spelling the “final word”. However, this paper aims
to demonstrate that the Executive Branch, to the detriment of the Judiciary, enjoys means and
mechanisms to dismiss formal distribution of constitutional powers, even redesign them,
beyond the capabilities and possibilities of Courts. The Supremacy of the Executive Branch, in
* * This paper has been elaborated within the Laboratory of Theoretical and Analytical Studies on
Institutional Behavior (LETACI). Funders of this work are the National Council for Scientific and
Technological Development (CNPq) and Carlos Chagas Filho Foundation for Research Support of the
State of Rio de Janeiro (FAPERJ).
†
Law Professor. Universidade Federal Fluminense. LETACI Researcher (Universidade Federal do Rio
de Janeiro). Internal Revenue Offical. Email: [email protected].
††
Associate Professor at the National Law School and the Graduate Program in Law of the Federal
University of Rio de Janeiro. Director, Center for Research and Documentation of the Bar Association
of Brazil (Rio de Janeiro Subsection). E-mail: [email protected]
†††
Law researcher. Universidade Federal do Rio de Janeiro. Member of Letaci - Laboratory of
Institutional and Analytical Studies on Institutional Behavior. Federal Law Clerk. E-mail:
[email protected].
the American Administrative State, is due to circumstances of crisis and calamity. In Brazil,
adversely, the Executive Branch has exceptional powers that do not require exceptionalities.
The Supremacy of the Brazilian Executive Branch rests on the convenience of other Branches
that support the presidential agenda. Nevertheless, despite the fact that Executive Supremacy is
a constitutional distortion, it flatly preserves constitutional stability.
KEYWORDS: Constitutional Branches; Executive; Judiciary; Supremacy; Administrative
State.
I.
Initial Considerations
Studies on the separation of powers in presidential regimes have suggested a supremacy
of the Executive1. In the United States, this supremacy mostly stems from crisis or calamity
situations, which predispose Presidential expansion and motivate legislative delegation.2 In
Brazil, however, it does not depend on extraordinary events.3 The supremacy of the Brazilian
Executive stems from the convenience of the other branches, which fail to or are unable to
constrain its powers.
By the way, the original federalist conception of Separation of Powers suggests, in the
U.S. that among the three branches of government, the effective power of the Executive to
interpret laws is widely greater and more effective, ex vi of the extent of the matters submitted
to the Executive (all the relevant national governance and law enforcement matters), of the
powers of the executive that can be used to implement and enforce adherence to its
interpretation of laws (vetoes, appointments law enforcement, foreign policy, commander -inchief), and of the strategic position of the Executive to act often first and typically last in certain
1 The preponderance of the executive is a particular feature of presidential regimes. In a postMadisonian perspective, some of inter-powers, economic and political crisis (showdowns) observed, it
seems possible to assert that the Executive has a “superactivist” status.
2 “What makes crises significant is that fundamental institutitonal reform takes place in a brief period
of time even as existing institutions struggle to fulfill their mandate. Sometimes, existing institutitons
simply claim more power than it was understood that they had. At other times, Congress rouses itself
to act, but only for the puporse of confirming a seizure of power or discretion by the executive, or in
order to delegate large new powers”. POSNER, Eric A. VERMEULE, Adrian. The Executive
Unbound: After the Madisonian Republic. Oxford University Press: New York, 2010, p. 32.
3 Although in Brazil it is affirmed an apparent Judicial Supremacy, whether by means of expressions
that try to repeatedly induce the prominence of Judiciary – “give the last word”, “ultimate guardian of
the Constitution”, among others - either by statements from various authorities, including the
President.
controversial legal disputes.4 “Legislatures and courts, then, are continually behind the pace of
events in the administrative state; they play an essentially reactive and marginal role, modifying
and occasionally blocking executive policy initiatives, but rarely taking the lead. And in crises,
the executive governs nearly alone”5
After all, “the executive not only dispenses the honors, but holds the sword of the
community”6. If the judiciary is the least dangerous branch7, then, by the same criteria, the
executive is the most dangerous branch.8 It is necessary to understand, however, that federalists
have established coordination of Powers. The rhetorical dismissal of judicial (and eventually
the legislative) prerogatives aimed to preserve the constitutional design (especially the
tripartism and checks and balances).9 That is, Madison belittled the Judiciary ("the least
dangerous branch") and celebrated the Executive to preserve the prerogatives and perhaps the
existence of the first. Therefore, the suppression of coordination violates the original federalist
design. Thus, Executive Supremacy is a constitutional distortion that has a paradoxical support
in the U. S. constitution (which guarantees constitutional powers that predispose supremacy)
but it is evidenced in the event of crisis and calamity.
In Brazil, on the other hand, prevails the state of constitutional emergency - permanent
externalization of Supremacy. That is, the Brazilian Executive bypasses the coordination of
PAULSEN, Michael. “The Most Dangerous Branch: Executive Power to Say What the Law Is”. The
Georgetown Law Journal, Vol. 83, No. 217, p. 220, p. 223.
5
VERMEULE, POSNER, p. 14
6
The Federalist No. 78.
7
Cf. BICKEL, Alexander. The Least Dangerous Branch: The Supreme Court at the Bar of
Politics. New Haven: Yale University Press, 1962.
8
“The executive possesses Force, Will, and "Judgment"-the power to interpret the law”. PAULSEN,
op. cit., p. 219.
9
Madison and Montesquieu agree about the tyrannical feature of power accumulation. Montesquieu
affirmed that “[w]hen legislative power is United with executive power in a single person or in a
single body of the magistracy, there is no liberty, because one can fear that the same monarch or
senate that maker tyrannical laws will execute them tyrannically”. Similarly, Madison stated that
“[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether
one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the
very definition of tyranny” (Madison, Federalist No. 47). MONTESQUIEU, Charles de Secondat. The
Spirit of the Laws. Eds. Anne M. Cohler, Basia Carolyn Miller and Harold Samuel Stone. Cambridge
Texts in the History of Political Thought. Cambridge: Cambridge University Press, 1989,p. 162. For
studies relating the origin of the north-American constitutional system cf. LAZARI, Igor ; FARONI,
Fabrício. “Constitucionalismo e Institucionalismo Norte-Americanos: a Atualidade dos Framers”.
Livros do XXI Congresso Nacional do CONPEDI/UFF. Florianópolis: FUNJAB, 2012, v. 1, pp.
433-448.
4
Powers supposedly harmonic, sustained by the convenience of both, the Legislative and the
Judiciary.
The Brazilian executive is an expanded branch that bypasses the coordination of powers
and is supported somehow by the other branches through the use of constitutional powers such
as constitutional amendments and provisional measures Nevertheless, it exercises certain
constitutional powers to ultimately (i) maintain executive supremacy and governance, (ii)
promote an uninterrupted constitutional redesign and (iii) preserve the continuous constitutional
emergency, at the expense of coordination.
The Executive supremacy will be demonstrated vis-à-vis two constitutional instruments:
Constitutional Amendments and Provisional Measures. In short, executive proposals of
Constitutional Amendments (ECs) and the issue of Provisional Measures (MPs) demonstrate
that the other branches conveniently avoid showdowns – episodes of conflicts between the
branches – related to power sharing, but they promote, as a consequence, the Executive
Supremacy. The progressive dispensability of ECs and the lack of legislative rejection and
judicial review of MPs are political maneuvers of institutional stability, that predisposes
constitutional redesigns convenient to the Executive.
Then, Liberal legalism – the legal theory defined by the belief that Powers or policy
may be constrained by the law – fails when it assumes that the executive will bow to the rule
of law. There are punctual constraints, but crises, emergencies, constitutional convenience
(delegation, connivance), submit constitutional interpretation to the Executive discretion.10
The paper aims to demonstrate, then, that the Brazilian and American constitutional
systems intend to promote, originally, branches coordination, but paradoxically predisposes the
Executive Supremacy – instead of Judicial Supremacy. Nevertheless, the Executive Supremacy
is not tyrannical; it actually aim the maintenance of the constitutional system. In Brazil,
Executive Supremacy is mostly supported by the convenience of the other Branches, aligned
with the presidential agenda. The use of presidential powers – in this paper, the Provisional
Measures and the Constitutional Amendments – demonstrates that the Executive has continuous
Cf. POSNER, E.; VERMEULE. A., op. cit., p. 4 (“Our thesis is that these modifications to liberal
legalism fail. Either they do not go far enough to square with the facts, or they go so far as to
effectively abandon the position they seek to defend. We live in a regime of executive-centered
government, in an age after the separation of powers, and the legally constrained executive is now a
historical curiosity… [W]e argue that in the modern administrative state the executive governs,
subject to legal constraints that are shaky in normal times and weak or nonexistent in times of crisis”).
10
“emergency” privileges.
II.
General Aspects of Executive Supremacy
Judicial Supremacy is repeatedly supported in doctrine11. It vulgarly corresponds to the
constitutional hermeneutics supremacy of the Judiciary12. Judicial supremacy stems, then, from
the Constitution supremacy – it is thefore a syllogistic definition. The alleged judicial
supremacy must be limited to constitutional hermenutics13.
In Brazil14, it has been said that “the constitution interpretation stemming from the STF
decisions – which has the duty to protect the Constitution (CF, art. 102, caput) – has an essential
role on the institutional organization of the country, so as to justify that the current political
model assigns the Supreme Court the singular privilege to dispose of the monopoly of the “last
word” when it comes to interpretation of rules inserted in the Constitution"15.
Brazilian Constitution, in fact, assigns the Supremo Tribunal Federal the duty to ‘guard
the Constitution. Nevertheless, constitutional hermeneutics is not a judicial monopoly. By the
way, the President, in the inauguration address, promises to “keep, defend and comply with the
Constitution”. Senators promise to “guard the Constitution and the laws of the country”;
11 “It has become fashionable in modern times, as it was among some opponents of the Constitution's
adoption, to point the finger ominously at the Supreme Court as the true lawgiver: an unelected,
unaccountable, elite cabal of life-tenured lawyers who enjoy complete power to run the nation by
virtue of their supreme power to interpret the Constitution, treaties, and laws of the nation. Even as
far back as 1962, well before judicial activism reached full flower with the late Warren and early
Burger courts”. PAULSEN, op. cit., p. 220. The objection to rests on the “idea that supremacy is
unnecessary: that it diminishes the scope of popular involvement for inadequate reasons. At the end of
the day, all the work done to justify judicial supremacy has no better or different basis than mistrust of
the larger community. It’s not about majority rule, but about which majority rules; proponents of
judicial supremacy simply trust a majority of nine more than they trust a majority of the larger
community believe that theoretical depth, and width, will produce a great deal of trouble for the
future”. KRAMER, Larry. “The Interest of the Man: James Madison, Popular Constitutionalism, and
the Theory of Deliberative Democracy”. Valparaiso University Law Review, Vol. 41, No. 2, p. 701.
12
“the notion that judges have the last word when it comes to constitutional interpretation and that
their decisions determine the meaning of the Constitution for everyone”. KRAMER, Larry. The
People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford
University Press, 2004, p. 125
13 E.g., the preeminence of the executive branch, typical of presidential regimes under critical
circumstances - showdowns or political or economic crises. Cf. POSNER, E.; VERMEULE, A., op.
cit.
14
However, in the United States, at least from 1958, in Cooper v. Aaron, the Supreme Court
repeatedly affirmed that its opinions are the "the supreme law of the land" and that the other Branches
are subordinated to them. Cooper v. Aaron, 358 U.S. 1, 18 (1958).
15 ADI 3.345, Rapporteur Justice Celso de Mello, decision in 25-8-2005, DJE 20-8-2010.
Deputies, “keep, defend and comply with the Constitution”.
The exegesis of the “last word” presupposes interpretive coordination. That is, it
presupposes “preliminary words”. In fact, the Branches have, coordinately, the power to
interpret the Constitution. The paradigmatic supremacy maxim that “it’s emphatically the
province and duty of the judicial department to say what the Law is”16 is inappropriate. The
Supreme Court decision in Marbury, paradigmatic to Judicial Supremacy, adversely, ratified
the American Supreme-Court interpretive power and judicial independence.
Marshall structural argument in Marbury for independence (not supremacy) of judicial
interpretation has occurred in a time that many scholar recognized that the Constitution was a
system of separate and shared powers that required coordinate and independent powers to
interpret the Constitution.
Marbury never claimed judicial supremacy in legal or constitutional matters, but only
that the Judiciary has independent competences comparable to the other branches. Claiming
judicial supremacy is logically inconsistent with Marshall’s argument for interpretative
competence of Branches and with the political theory of Separation of Powers of the founding
era.
The power to interpret laws is not therefore an exclusive judicial power; it is a common
and coordinate power. The presidential power to interpret the law is, within its powers, precisely
coordinate and equal to that of the Supreme Court.17 Andrew Jackson affirmed apropos that the
opinion of the judges does not have more authority over Congress than the opinion of the
Congress over judges. “The authority of the Supreme Court must not, therefore, be permitted
to control the Congress or the Executive when acting in their legislative capacities, but to have
only such influence as the force of their reasoning may deserve”.18
As a consequence of constitutional systems that establish separation of powers, the
interpretive power of the Executive shall and must be exercised independently of the
16 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
17 “The several departments being perfectly co-ordinate by the terms of their common commission,
neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries
between their respective powers” (James Madison, The Federalist No. 49).
18 “The opinion of the judges has no more authority over Congress than the opinion of Congress has
over the judges, and on that point the President is independent of both.” President Andrew
Jackson’s Message on the Occasion of his Veto of the Bank Bill of 1832.
interpretation of the other Branches. The president has the power of broad review of the other
Branches – the legality and constitutionality review of their interpretation of laws, statutes and
the Constitution – on matters pertaining to presidential powers. The President can refuse to
execute Congress commands under constitutional parameters previously refused by the
Supreme Court. He can make a different interpretation from the Judiciary. Similarly, he can
exercise review powers in specific cases differently decided by courts; that is, he can refuse to
obey judicial decisions that he comprehends illegal.19
After all, “whoever would be obliged to obey a constitutional law, is justified in refusing
to obey an unconstitutional act of the legislature… when a question, even of this delicate nature,
occurs, every one who is called to act, has a right to judge”.20 In the modern administrative state
– and similarly in the Brazilian Convenience State --, the President has implicit and delegated
powers to prescribe rules.
Thus, the Branches coordination is the appropriate premise. However, it is more likely
that the Executive at the expense of the Judiciary violates the harmony among Branches.
III.
The
[Convenient]
Brazilian
Executive
Supremacy:
Constitutional
Amendments and Provisional Measures
The Executive has significantly defined the national political agenda and redesigned the
Constitution through Constitutional Amendments (proposing them), mostly in the first decade
after the Constitution promulgation in 1988. Nevertheless, the political burden of amendments
has provoked a progressive dispensability of them and, conveniently, the Executive has
amplified the use of Provisional Measures (MP’s). The MP’s are able to, identically, redesign
(in)formally the Constitutional, and they have ultra vires effects supported on the convenience
of the Legislative and the Judiciary that largely predispose Executive Supremacy.
a. The Constitution Redesign: Constitutional Amedments
Despite the fact that amendments to the constitution have a high political cost,21 in both
19 PAULSEN, op. cit., pp. 221-222.
20 WILSON, James. The Works of James Wilson. In. MCCLOSKEY, Robert Green (ed.).
Cambridge: Harvard University Press, 1967, p. 168.
21
Art. 60 of the Brazilian Constitution provides for the legitimate proposal of amendments to the
Constitution by the following: a) at least one third of either the Chamber of Deputies or the Senate
members (the two parliamentary houses at the federal level), b) the President of the Republic, or c)
more than half of the legislative assemblies of the federated states. The proposal must be examined by
the Brazilian and American contexts, a significant number of them have been proposed by the
Brazilian executive during the two presidential terms of Fernando Henrique Cardoso (FHC)
(1995–2002), a member of the Brazilian Social Democracy Party (Partido da Social
Democracia Brasileira - PSDB). However, the number of amendment proposals by the
executive branch decreased after the election of Workers Party’s presidents (Partido dos
Trabalhadores - PT) — Lula (2003–2010) and Dilma (2011–2013). This reduction was due to
a decrease of partisan coalescence (internal cohesion) despite an increase in the government
base’s coalition.
Table 1: Composition of the National Congress
Base
Period
Chamber
Senate
1995–98
181
35.28%
34
41.98%
1999–02
303
59.06%
41
50.62%
2003–06
254
49.51%
31
38.27%
2007–10
353
68.81%
49
60.49%
2011–12
373
72.71%
62
76.54%
Source: author’s elaboration from Congress website
Opposition
Chamber
Senate
93
18.13%
7
8.64%
109
21.25%
12
14.81%
259
50.49%
50
61.73%
160
31.19%
32
39.51%
111
21.64%
18
22.22%
Assessing the level of governance largely depends on the presence of coalescence and
not just on a partisan coalition. Although the PT governments have formally been supported by
coalitions numerically superior to the opposition, they lacked coalescence, creating a less
unified government. Conversely, coalescence existed in PSDB presidential terms, when the
integration of a few independent parties in Congress was enough for approving the presidential
political agenda.
Therefore, the government base lost its qualified majority in Congress, and transitioned
to a less unified government. The governance by the executive branch, however, was not
severely impaired because of the existence of lower-cost mechanisms. E.g., presidentialinitiative legislation peaked in 2004 following the loss of the qualified majority.
Figure 1: Percentage of Approved Legal Initiatives
two chamber committees and then by the plenary, undergoing two rounds of voting, each of which
requires three fifths of the votes for approval. Once approved in the chamber, the proposal is sent to
the Senate, and examined by a committee and by the plenary, undergoing two rounds of voting, each
of which requires three fifths of the votes for approval. Once approved by both houses, the proposal is
promulgated by the Chamber of Deputies and the Senate Boards (management bodies) and published
in the official dissemination media when it comes into force.
100,0%
90,0%
80,0%
70,0%
60,0%
50,0%
40,0%
30,0%
20,0%
10,0%
0,0%
Executive
Legislative
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
Others
Source: author’s elaboration from Congress website
Moreover, the executive branch already had the power of enacting provisional measures,
which do not require immediate legislative approval. According to this hypothesis, the
legislative condescension over provisional measures does not stem from a showdown, crisis or
delegation, but from a de jure primary constitutional provision.
b. The Legal Redesign: Provisional Measures
The Brazilian executive plays an atypical legislative role through regulatory decrees
and delegated laws. Both require respectively an a priori legislative approval, by issuing
legislation that lacks regulation, and an a posteriori legislative approval by approving delegated
laws. Moreover, the executive has the power to propose laws (presidential-initiative) — which
represent 80% of the ordinary Brazilian legislation22—and constitutional amendments.
However, the provisional measures corresponds to primary normative statutes with immediate
legal effects, that are submitted to Congress for subsequent approval..
The executive plays a “legislative role” in these cases. The Constitution provides that
"[i]n case of relevance and urgency, the President of the Republic may adopt provisional
measures with the force of law, and shall immediately submit them to Congress." A simple
22
Article 47 of the Constitution stipulates that the deliberations of each house and its committees shall
be taken by a majority vote, provided the presence of an absolute majority of its members. Thus, for
the approval of an ordinary law in the Senate, which is composed of 81 members, 21 votes in favor are
required, highlighting the ease of the procedure as compared with constitutional amendments, which
require a three-fifths majority of the parliamentarians for approval (in the Senate, 49 votes out of the
81 senators).
Congress majority is enough to convert a provisional measure into law.23 If rejected or
expired,24 the legal relations both constituted and resulting from any acts performed during its
validity shall be governed by them.
However, the Congress or the Judiciary do not always review “relevance” and
“urgency”. The convenience of issuing provisional measures is largely justified by the
institutional capacities of the executive. However, this convenience essentially results from the
potential risk that might arise from the possible showdown upon the rejection of the measures:
Figure 2: Annual Rate of Conversion for Provisional Measures
100,0%
90,0%
80,0%
70,0%
60,0%
Conversion
50,0%
40,0%
Rejection
30,0%
Other effects
20,0%
10,0%
2011
2010
2009
2008
2007
2006
2005
2004
2003
0,0%
Source: author’s elaboration from Government Law Database
23
In agreement with articles 84, subsection XXVI, and 62 and paragraphs of the 1988 Constitution,
the
President of the republic has the exclusive responsibility to issue provisional measures (PMs). Such
norms have the force of ordinary law, upon publication, although the President must immediately
submit them to the National Congress for examination. Once sent to the Congress, the PM will be
examined by a joint committee of deputies and senators, which shall provide an opinion regarding its
constitutionality. Later, the PM will be submitted to a vote by the plenary of each house, starting with
the chamber, and will be approved by a simple majority in both plenaries, being thus converted into
law. The PMs can be approved and converted into law within a maximum of sixty days, which is
extendable for only one equal period. If this limit is exceeded, the PM becomes void dated to its
issuing. The Congress can adopt four attitudes when analyzing a PM: (a) approve it without changes;
b) approve it with amendments to the text prepared by the presidency of the republic; (c) not examine
the PM within the maximum time limit; or d) reject the PM. If the Congress does not examine or
rejects the PM, a legislative decree must be promulgated, regulating the legal relations brought about
by the PM, for the period in which it was effective. If the parliamentarians do not issue this legislative
decree until sixty days after the PM becomes valid, those legal relations will be governed by the
unexamined or rejected PM itself, providing the executive with a preponderance of will if the
Parliament does not pronounce itself.
24
In this case, a legislative decree is rarely issued by the parliament.
As shown in the above figure, the legislative branch converted 87% of the provisional
measures into law. Moreover, the 32nd constitutional amendment ratified in 2001, though
originally conceived to constrain the issuance of provisional measures, was approved after
editions to the original text that expanded the executive discretion. The PMs could nevertheless
be considered a constitutional evil that many people regard as necessary or positive, although
it is a constitutional imperfection.25
The executive has also made use of provisional measures for unconstitutional ends; art.
62, § 1, I, d, of the Constitution provides that it is forbidden to issue provisional measures on
matters related to budgets and additional or supplementary credits, except for, pursuant to art.
167, to meet unforeseeable and urgent expenses, such as those resulting from war, internal
commotion or public calamity.
However, as shown in the following figure the values of the aforementioned expenses
surpass any concept of extraordinariness.
Figure 3: Extraordinary Credit Opened by Means of Provisional Measures (US$)
$35.000.000.000,00
$30.000.000.000,00
$25.000.000.000,00
$20.000.000.000,00
$15.000.000.000,00
$10.000.000.000,00
$5.000.000.000,00
2012
2011
2010
2009
2008
2007
2006
2005
2004
2003
$0,00
Source: author’s elaboration from Government Law Database
The convenient path for the branches also has implications with respect to judicial
convenience. The Brazilian Supreme Court (Supremo Tribunal Federal - STF) has repeatedly
held that it is not competent to assess "relevance" and "urgency,"26 a pre-requisite for the
25
GRABER, Mark. Dred Scott and the Problem of Constitutional Evil. Cambridge University
Press: New York, 2006, p. 9.
26
Thus, the following should be noted: (i) "The understanding of this Court is that examination of
urgency and importance requirements can only be submitted to the judiciary when there is abuse of
issuance of PMs. Moreover, about the opening of extraordinary credits, the STF has stated that
"the foreseen credits have either been used or lost their validity, and therefore, no emendable
situations subsist at the present time."
In another example, in the judgment of the direct action of unconstitutionality 4029/AM
(03/2012), the STF "backed out"27 one day after a decision that declared the formal
unconstitutionality of the provisional measure that created the Chico Mendes Institute (Instituto
Chico Mendes) due to a procedural flaw in the examination of the measure by the Congress
following a point of order raised by the Attorney General. By sweeping unconstitutionalities
under the rug, the STF reviewed the prior decision, which threatened 500 prior provisional
measures.28
The status quo of a "permanent crisis" and 400 claims of relevance and urgency between
2003 and 2011 have prevented showdowns, eventual crises, higher lawmaking or even judicial
doctrine.29 The Brazilian "state of convenience" thus surpasses the administrative state.
IV.
Final Considerations
The Executive Power is thus called supreme because it has mechanisms of constitutional
redesign, exclusive powers and broader institutional capacities. The alleged Judicial Supremacy
is limited to constitutional interpretation that is coordinately exercised by the Executive.
Besides that, the Executive of the American Administrative State is predictably stronger under
emergency circumstances: it has the “sword and the will”. Nevertheless, it is temporary. The
Brazilian Executive, by the other hand, has regular exceptional powers: the issue of provisional
measures for extraordinary credits, the influence over the national agenda and it is a
constitutional designer.
discretion by the head of the executive branch. Regimental appeal that shall be withheld" (AI 489108,
2006); (ii) the "relevance and urgency requirements for issuing provisional measure are a
discretionary power of the head of the executive branch, hence should not be examined by the
judiciary
branch , except in the case of a misuse of power. Understanding decided upon STF jurisprudence.
Action dismissed" (ADI 2150, 2002).
27
“The Switch in Time that Saved Eleven.” The radical change in the STF behavior is similar to that
of the US Supreme Court in 1937, after the failed court-packing plan of President Roosevelt.
28
“We have found that, in spite of declaring the measures unconstitutional, it could generate a serious
social crisis of legal uncertainty and institutional crises, indicating that we should be careful with the
consequences of our decision” (Luiz Fux – Brazilian Supreme Court Justice).
29
“We suggest that the central mechanism of constitutional change is not amendment, higher
lawmaking or even judicial doctrine, but episodes of conflict between institutions over the distribution
of policymaking authority.” POSNER, E.; VERMEULE, A. op. cit. p. 67.
The Executive Supremacy rests, in any case, on the other Branches connivance, that
support the presidential agenda – connivance, delegation, omission. However, the Supremacy
primarily serves to preserve the Constitution. Therefore, despite the fact that Executive
Supremacy violates the maxim of constitutional harmony and coordination, it is essential to
maintain a minimum balance of powers.
V.
References
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