For the Balkinization Symposium on The Chevron Doctrine through the Lens of Comparative Law
Carlos Ari Sundfeld e Yasser Gabriel
Blog Balkinization
Deference is not a widespread expression in Brazilian administrative law. But the
argument that the Judiciary must observe many limits when acting as controller of
public administrations is, in fact, very old in Brazil. It is closely related to the
country’s single jurisdiction system — a choice made in 1891, under the influence
of North American law, and still in force today. Thus, Brazilian public law rejected
the French system of Administrative Justice that separates administrative law from
general law. Brazil´s legal tradition assumes that judging is independent of
making and executing public policies, meaning that judges are not allowed to step
into the role of public administrators.
The argument that public administrators have discretionary powers in several
cases, including in technical matters and regarding aspects of convenience and
opportunity, still prevails today in the legal literature. As a result, it is understood
that judicial control of administrative acts must focus only on the requirements
established by law as bound and invariable to its production (such as the form of
the act, the administrative process for its publication and the administrative
authority legitimated to decide). These ideas are summarized in the widely
accepted notion, commonplace in Brazil, that the Judiciary is responsible for
assessing the legality of administrative acts, not their merit.
It is true that, from the 1940s onwards, little by little, and inspired by French
jurisprudence, judicial control of discretionary acts was also accepted, but as an
exception, in situations of flagrant incompatibility with public purposes. And, in
more recent decades, the idea of controlling the act’s reasonableness and
proportionality have been used for the same purpose and in exceptional
situations.
But, as a rule, administrative acts are always presumed valid on account of the
independence of the Powers. This, in theory, imposes a heavy burden of
demonstration on the judge who intends to find misuse of power, lack of
reasonableness, or disproportionality in an administrative act.
Therefore, although the term deference is not commonly used, its fundamental
premise — respect, by the Judiciary, for administrative action, when in compliance
with legislation — resonates strongly in the theoretical bases of our administrative
law.
It is true, however, that, following the re-democratization of Brazil and the
publication of the 1988 Constitution, there has been increased litigation in matters
linked to the exercise of administrative functions. At the same time, judges have
shown a greater willingness to make interventions, without the same concern for
respecting the independence of public administrations and without the same
acceptance of ideas in legal literature about the limits of judicial intervention.
Still, this trend does not seem to be so ample, focusing mainly on situations
involving the expansion of social protections or benefits. The explanation for this
has to do with the very particular characteristics of the 1988 Brazilian
Constitution: on the one hand, it includes many open-ended norms dealing with
the protection of individual rights, inclusion, and correction of social inequalities;
and, on the other, the broad opening, by the Constitution, of judicial means for
making such norms effective.
Due to these characteristics, when considering the recognition or imposition of
public obligations in the face of constitutionally based social rights, the Judiciary
has tended to be less deferential to administrative action than is other areas of
public law. These are decisions that, for example, have forced public
administrations to provide medical treatments not covered by the public health
system or to grant social security benefits not expressly provided for by law.
An article published in 2021 indicates that, between 2010 and 2018, the federal
administration spent R$ 8.5 billion (approximately US$ 1.7 billion) purchasing
medications under court order, the equivalent of around 10% of the
pharmaceutical assistance budget in the period. Most of these sums were
allocated to the purchase of a limited number of high-cost medicines not provided
by the public health system.
Regarding social security benefits, research published in 2020 presents impressive
data: at least 11% of benefits granted by the National Social Security Institute
(INSS) result from court orders. There are many questions regarding the granting
of sickness benefits, a topic that involves both discussions about the validity and
scope of medical examinations carried out by the INSS, as well as a divergence
between the public administration and the Judiciary over the legal concept of
“invalidity” and what it includes.
The characteristics that the Brazilian legal system has assumed in the last 35
years, therefore, have come to partially compromise the discourse of judicial
respect for an administrative act’s merit — for the discretion, including technical,
of public administrators. This is a direct result of the constitutionalization, through
open norms, of a series of social rights, such as rights to health, education and a
balanced environment, without, however, further specifications regarding the
content and extent of these rights. Normative incompleteness or uncertainty,
combined with the strengthening of the Judiciary as guardian of constitutionality,
has led to judicial control that is not very deferential to the administration in
matters of social rights.
This complexity of the Brazilian legal system has increased the gap between the
reality of the courts and the theoretical discourse traditionally used to draw limits
to judicial control over public administrations. The Judiciary has shown itself
comfortable carrying out this type of intervention, which generates consequences
such as different treatment for similar cases (people who can access the Judiciary
tend to be in a more advantageous position compared to those who cannot — and
the court decisions benefit the individual claimant but do not always require an
overall change in policy); delays in the implementation of public policies (due to
court decisions that require reformulations of the original plans of public
administrations) and increase or reconfiguration of public spending (due to the
creation of new obligations).
However, it is important to note that the trend towards greater judicial
interventionism does not appear to be general. In situations involving the
imposition of conditions or restrictions on individual actions by public
administrations — regarding environmental or sanitary concerns, for example —
the predominant stance of the Judiciary is still one of (de facto) deference to
administrative decisions.
The phenomenon has attracted a lot of attention from academia. In the last two
decades, there has been much research dedicated to understanding judicial
intervention in public management. Also, academic exchange programs of
students on postgraduate courses studying important topics for administrative law
from the perspective of comparative law have become common. North American
institutions tend to be a recurring destination for these students. In these
programs, connections between the Chevron doctrine and Brazilian law have
emerged, reinforcing traditional notions regarding the limits of judicial control.
Relevant works by Brazilian former students who attended institutions such as
Yale and Harvard explored the Chevron case and highlighted lessons that could be
used in the Brazilian experience — such as the work of Eduardo Jordão. The term
deference even started to be used with some familiarity in the Brazilian debate. As
a result, in recent years, the Chevron doctrine has become well known to Brazilian
administrative law and has already had some repercussions in decisions of the
Supreme Court, precisely in cases outside the realm of public assistance of a
social nature.
In 2018, in a case involving a restriction on the sale of cigarettes with additives
imposed by a regulatory agency based on an interpretation of a federal law, the
Supreme Court, although in a divided vote, ended up maintaining the
administrative regulation questioned. In the debates, there was express reference
to the Chevron doctrine. Some justices defended the idea that, if there is
ambiguity in the law in relation to a certain topic, the Court should decide
whether, by accommodating opposing interests, the solution adopted by the
agency was based on a reasonable interpretation of the law and compatible with
the Federal Constitution.
In the following year, 2019, the Supreme Court again resorted to Chevron, this
time in a case that concerned an act carried out by the administrative authority
responsible for competitiveness protection, which was maintained by the Judiciary.
Not only did the Court use the assumptions of deference outlined in the Chevron
doctrine, but it stated that, compared to the Judiciary, the public administration
had greater capacity to evaluate factual and economic elements relevant to the
regulation in question.
At the current moment, in Brazil, the feeling is that, after having partially
exceeded its old limits, the model of judicial control of public administration is
seeking a new point of balance. The general assumption of the idea of judicial
deference towards administrations do not exactly appear to be in crisis. What did
experience a crisis was the traditional passivity in face of social inequalities. The
question is whether judges would be able to prompt the state to correct
inequalities such as these or, considering all cases, perhaps they mostly end up
increasing confusion or benefiting the wrong people. So far, the answer is unclear.
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As opiniões aqui expressas são do autor e não refletem necessariamente as do CDPP, tampouco as dos demais associados.
