Presidents and Terminal Logic Behavior by Kehoe Genevieve M.;

Author:Kehoe, Genevieve M.; [Kehoe, Genevieve M.]
Language: eng
Format: epub
Publisher: Texas A&M University Press
Published: 2014-08-15T00:00:00+00:00

Figure 6.3. Number of cases filed with Brazil’s Supreme Federal Tribunal (1990–2002).

Many times the court could step up and rule against an MPV. It has both the opportunity and the power to do so. Yet the court appears to view this manner of implementing law as constitutional and supported as other forms. In fact, empirical analysis of cases reveals that the court is less likely to issue an injunction against executive decrees than against other forms of laws.51 Kapiszewski (2007) finds that in 22 of the most important cases regarding economic policy, only 4 are MPVs (18 percent of the time).52 The object of cases is more often a complementary or an ordinary law (36 percent of the time) or a constitutional amendment (27 percent of the time). She adds: “[I]t was much more often the content rather than form of policies that was questioned: policy content was questioned in 17 cases (or 65 percent of the time), and both form and content were questioned in 4 cases (or 15 percent of the time)” (ibid., 336). Similarly, using a sample of more than one thousand cases in which the plaintiffs charged direct action of unconstitutionality (ação direta de inconstitucionalidade, or ADIn) against laws passed by the three branches of federal government. Taylor (2006, 175–76) finds that “ordinary laws, which require far more deliberation than executive measures, are roughly twice as likely to face successful injunctive challenges as executive decrees. In addition, non-executive decrees by either Congress or the Judiciary are 1.8 times more likely to face successful injunction requests than executive decrees.”53 As a result, he concludes that this “knocks down any assumption that the STF views the use of provisional measures (MPVs) as inherently more arbitrary or less constitutional than the use of other forms of legislation” (ibid., 179).

Not only is the court less likely to issue a successful injunction against MPVs than other forms of law, but on notable occasions it has flat out refused to grant review of cases associated with them. For instance, in a sweeping display of presidential power President Collor decreed the freezing of Brazilian accounts. Then he made subsequent decrees prohibiting courts from placing injunctions against decrees related to the Collor Plan. The court refused to review petitions associated with any of these decrees (Ballard 1999, 255).

This is not to say that the court does not hear cases questioning executive action. It hears such cases and has “reversed important decisions [made] by powerful presidents” (Taylor 2006, 338).54 In Kapiszewski’s sample, executive action in the form of “some sort of administrative policy or decision” is questioned in 31 percent of the cases. And the court did step in when presidents began to reissue MPVs after they had been disapproved by Congress. The court ended this practice in 1991. Moreover, there are some signs that the court is beginning to change its tune. The court appears to support Temer’s interpretation of EC32, which restricts the application of legislative blockage to ordinary law proposals (Rennó 2010, 219–21).

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