Governo e regulação: o controle das agências reguladoras independentes pelo Poder Executivo central no Brasil

Abstract

This dissertation aims to analyze the control of independent regulatory agencies by the Executive Branch in Brazil. The intention is not to evaluate this phenomenon positively or negatively. Instead, it seeks to describe the institutional mechanisms that allow the President, directly or through authorities accountable to him, to influence the actions of federal regulatory agencies. Thus, a predominantly descriptive study is proposed, without prejudice to more dogmatic considerations regarding the legal possibilities and limits of these tools. From this perspective, the work is organized into three parts. The first part focuses on presenting the theoretical premises that can inform the creation and control of agencies by the government. In this segment, the objective is to highlight that, unlike what is proposed by much of the legal literature developed on the subject, the independent regulation model is not disconnected from politics. On the contrary. The implementation and shaping of this system stem from political decisions made by elected authorities in view of the political gains and costs of delegating regulation to independent agencies. Therefore, the relationships between government officials and regulators admit different formats, with various degrees of regulatory independence and governmental control, depending on political-institutional choices that determine to what extent central power can interfere with the agencies. With this in mind, the core of the second part of the work is to explain that, in our country, the Constitution attributes to the President a major role in making decisions regarding the institutional design of regulatory agencies. This is because the constitutional text reserves for him the initiative of laws and the power to issue decrees and provisional measures regarding the organization of these entities. As a result, a relevant part of the choices regarding the organizational architecture of the agencies, including the instruments that allow their control by the government, is up to the head of the Executive Branch. Finally, the third part is dedicated to examining the control mechanisms that result from these choices and are conferred upon the President or authorities subordinate to him. This section organizes the different tools that allow central administration to influence the agencies’ actions, from a material, structural, and procedural point of view, as well as relates the legal and political conditions surrounding the exercise of these instruments. After going through this itinerary, the research concludes that regulatory agencies are not as independent from government policy as is typically presented on the subject. In addition to being created and organized according to the choices of elected officials, the agencies are subject to control mechanisms established and activated according to the political will of these agents. These instruments convey inevitable dialogues between politics and regulation, especially within the Executive Branch. The role of administrative law is not to deny or ignore such interactions but to make them legally appropriate, which presupposes an appropriate description of how they develop. This is the contribution that this study intends to offer.