Avocação legislativa da escolha regulatória: teoria e prática da interação entre agências reguladoras e Poder Legislativo na construção da política regulatória

Abstract

This study discusses the role of the Legislative Branch in the construction of regulatory policy in Brazil from the perspective of its interaction with regulatory agencies. The research focuses on the political control performed by the National Congress on the federal agencies’ regulatory choices, by which the Legislative Branch reclaims through lawmaking activities the decision making power previously delegated by law to the agency. This phenomenon is conceptualized in this work as “legislative reclaim of regulatory choices”. In the first part, the study presents a review of literature and case law to define the problem of the legitimacy of congressional intervention in regulatory matters, and to identify and discuss the main objections to such intervention. Then, the study presents three assumptions for a theory of legislative control over the merits of regulatory agencies decisions, which make it more adequate to deal with the interaction between agencies and the Legislative Branch in the light of the normative and empirical parameters discussed in the previous topic. In the second part, the study introduces the legislative reclaim of regulatory choice as a model of institutional interaction between agencies and the Legislative Branch for disputes over the merits of regulatory choices. Finally, four case studies of legislative reclaim of regulatory choices were conducted to assess the practical implications of the theoretical model presented in the previous topic. The research concludes that the institutional framework of regulation by agencies was conceived, in Brazil, based on a clear division of tasks, in which the Legislative Branch would define the goals of regulatory policy, while delegating to the agencies its execution and technical implementation. This theoretical perspective and the concepts on which it is based are, however, insufficient to explain the complexity of this relationship. The Constitution reserves to the Legislative Branch a role as relevant as it is legitimate in the process of building regulatory policy, allowing the existence of an arena of competition between agencies and legislators. Recognizing this space is the first step to dogmatically and pragmatically sound discussions about the limits and possibilities of the interaction between Congress and regulatory agencies, which reinforces the usefulness of the theoretical model of legislative reclaim of regulatory choices.