Executive Decree Authority and Lawmaking Environment in Brazil: A Broader View of Provisional Measures

Abstract

Brazilian provisional measures (MPVs) are still depicted by some Brazilian legal scholars as an authoritarian instrument used by the Executive to impose the political agenda, violating constitutional principles like the separation of powers. In a different manner, assuming a hands-on approach, political scientists have shown that the use of the decree power authority by the Executive branch is not only common in contemporary democracies—both in Parliamentary systems as well as in presidential ones—but also useful to build and to keep governability and democratic stability. Even accepting MPVs really are a strong legislative and political instrument, the main objective of this article is to show there is more here to present: actually, under the legal perspective, little attention is addressed to the institutional environment that surrounds the lawmaking, or to the mutual (re)shaping interaction between decrees’ boundaries and procedures and the whole lawmaking process. Assuming that the MPVs’ institutional design has changed significantly in the last 25 years, facing at least four quite different periods, it is possible to extract two important legal consequences: first, it is not appropriate to consider decrees as a flat, regular, and unique instrument; second, it is necessary to ponder that MPV’s institutional changes have a very important role in the horizontal relationship between Executive and Legislative branches, greatly affecting the whole lawmaking process environment and the legal output.