O debate acerca do controle de constitucionalidade incidental nos tribunais de contas: uma análise crítica dos argumentos do Mandado de Segurança 35.410 para a defesa da integridade do direito

Abstract

The incidental constitutional review in the Courts of Counts is debated based on an analysis of arguments present in Writ of Mandamus nº 35410, being heard in the Supreme Court. The question to answer is the following: are brazilian courts of counts constrained by the understandings of the Supreme Court when exercising incidental constitutional review or those ones Courts would not even enjoy the prerogative to exercise that control, based on the critical analysis of the arguments raised in the votes of Writ of Mandamus nº 35.410? The hypothesis raised is that there is a restrictive view, reflected in the arguments extracted from the votes of said Writ of Mandamus, regarding the meaning of constitutionality control as well as its applicable jurisdiction, although incidental, of the exercise of this control by the Courts of Counts. To confirm the hypothesis, we present the selected case and then we propose an analysis of the argumentative framework contained therein. In conclusion, in addition to refuting the arguments contained in the Writ of Mandamus, it is worth noting that the Supreme Court eventually denied the request made by the Courts of Counts to share the constitutional paradigm. The method used was hypothetical deductive, with a case study, starting from Ronald Dworkin’s concept of Law as Integrity.