Judicialização do federalismo: uma análise da interpretação do Supremo Tribunal Federal acerca das competências legislativas concorrentes constitucionais

Abstract

This final paper is devoted to the study of how the interpretation of the competing legislative competences is done, outlined in the Constitution of the Federative Republic of Brazil from 1988, by the Federal Supreme Court. The analysis focuses initially on the difference between the Unitary State and the Federal State, which has as its distinctive feature the political autonomy given to the territorial divisions, denominated federal units. Following, there is the diagnosis of how this autonomy can influence the distribution of competences in constitutional text. Afterwards, the federal form is analyzed from a historical point of view, in brief examination, until it reaches the study of the federal model of the 1988 Constitution. By delimiting the object of the study to an examination of competing legislative competencies, it is analyzed the national federative model from the point of view of the complex system of apportionment of legislative powers, which brings together different criteria. Thus, there are three issues that need to be addressed by the Federal Supreme Court. The first difficulty concerns the inadequacy of criteria for differentiating certain subjects from the list of competing competences in relation to those of the Union's privative competences. The second problem concerns the limitation of the competing legislative competence of the Union, the Member States and the Federal District by indeterminate juridical concepts. Finally, the last point that is faced is the lack of definition of the possibility of municipalities to legislate on matters of the competing competences. In this sense, the central question of this study is to demonstrate that the dividing line of legislative competences, established by the Constitution, can undergo variations according to the judicial activity of the Federal Supreme Court. The confrontation is based on a selection of fifty-two precedents of the Federal Supreme Court, judged after the promulgation of the 1988 Constitution, in the resolution of federal conflicts, in matters in the list of competing legislative powers, namely environmental protection, education and procedures Procedural matters. The essay ends with a critical analysis of the Federal Supreme Court's decisions regarding the control of the normative acts of the federative entities, as formalizations of precedents, with the verification of insufficient compliance with the requirements of justification of judicial decisions and with the search for economic criteria and political, extrinsic to the judgments, but related to them, for making such decisions.