Delegações legislativas e poder regulamentar: política e direito na administração pública brasileira

Abstract

This thesis aims to analyze the phenomenon of legislative delegations in Brazil, in order to insert the nondelegation principle at the intersection of positive political science and Administrative Law. The thesis is organized in three parts. The first part focuses on the presentation of the debate on legislative delegations in the current legal literature, its case study and inconsistencies. It begins with the study of the nondelegation principle, its premises and assumptions, through its corollaries of the rule of law, democratic principle and separation of powers. Then, we will tell the story of development and debate regarding the nondelegation doctrine in the United States. In the First Part we will also analyze the so-called delegated statute, established in article 68 of the Constitution and the main theories regarding ordinance making power of Public Administration, explaining its types and basic features. Finally, the case law of the Brazilian Supreme Court will be studied, highlighting the difficulties of a clear definition of the limits to legislative delegations. In the second part, the legislative delegations phenomenon will be approached as one of the mechanisms of the presidential political dynamics, given what the literature calls Presidencialismo de Coalização its problems, outcomes and impacts in the Brazilian democracy. The US experience will be, again, taken into account in a reading of public choice theories and the way they are used to improve the debate on legislative delegations, making it closer to reality, in a pragmatic construction of administrative law. Finally, in the third part, it will be presented a proposal on the approach of legislative delegations in Brazil. The goal is to provide interpretative parameters, which can contribute to redefining the limits of legislative delegation, and how it may benefit and promote constitutional values. The work aims to achieve a decree power design that supports a functional public administration which is able to reach its goals within the democratic project of the 1988 Constitution. At last, this thesis proposes some objective criteria that can as a whole help the interpreter on the examination of the legitimacy of delegations.