Institutionalizing tensions between the legislative branch and the regulator: proposal for a law enabling the review of agencies’ normative acts by the National Congress

Abstract

The goal of this study is to examine the political tension between the legislative branch and regulatory entities – including regulatory agencies in accordance with Law n. 13,848, of June 25th, 2019, and other similar independent and technical entities, such as the Brazilian Securities and Exchange Commission and the Central Bank, for instance – proposing institutional solutions for this question. An intrinsic characteristic to such regulatory entities is the concentration of quasi-legislative powers, usually delegated in broad ways by the law that created the regulatory entity, noted that such powers may be more or less analogous to primary laws. With time and the settling of the institutional model of independent regulatory entities, political tensions have grown between the legislative branch and such entities, as studies point out. This article aims to pinpoint ways to institutionalize these tensions, from a detailed analysis of (i) Unconstitutionality Action n. 5,501, decided by the Brazilian Supreme Court on October 23rd, 2020, (ii) the case Gundy v. United States, decided on June 20th, 2019, by the U.S. Supreme Court, and (iii) the Congressional Review Act (1996), of the United States of America.