ADMINISTRATIVE RESERVE AND JUDICIAL REVIEW OF THE CONSTITUTIONALITY OF LAWS

Abstract

Contextualization: As a consequence of the need to respect the principle of separation and independence of powers, the doctrine developed that the Executive branch has a fundamental decision-making space for the performance of its institutional responsibilities, not subject to interference from the Judiciary or the Legislature, known as the Administrative Reserve. The Legislative branch's interference with this reserve manifests itself through the enactment of parliamentary laws that regulate aspects of Public Administration linked to the Executive branch, which are deemed invalid even when no violation of the legislative initiative provided for in Article 61, § 1, of the Federal Constitution is found.

Objective: To understand how the concept of the Administrative Reserve is interpreted and applied by the jurisprudence of the Supreme Federal Court in relation to laws of the Legislative Branch that impose determinations on the Executive branch.

Methodology: The approach adopted was deductive, with a qualitative research approach. The research technique consisted of a bibliographic review, which consisted of the survey and analysis of national and international theoretical works on the subject. There was also a stage of case law research, based on the analysis of Supreme Federal Court decisions that address the Administrative Reserve in their reasoning.

Results: It appears that the Supreme Federal Court uses the concept of Administrative Reserve in both the strict and broad sense to support decisions declaring the unconstitutionality of parliamentary laws that interfere with Public Administration. However, it promotes a conceptual distinction regarding the legislative initiative of the Chief Executive, as provided for in Article 61, § 1, of the Federal Constitution.