A statement by the Senate President, Gave it alarthrumb (Brazil-AP Union), lit a warning about the future of constitutionality control. In a moment of friction between the Legislative and the Executivethe senator suggested restricting who can trigger the Supreme Federal Court (STF) to question laws passed in the Congress.
The measure could limit the access of small parties to the court on possible unconstitutionalities in the midst of disputes on the. At the end of June, the presidential decree that raised the rates was barred by a congressional legislative decree, generating chain reactions.
Both PSOL and PL fired the Federal Supreme Court in opposite directions: the former joined the ADI 7839 to invalidate the legislative decree that overthrew the increase in the IOF, while the second in ADI 7827 contested the own presidential decree that raised the rates. The Attorney General of the Union (AGU), representing President Lula, filed ADC 96 to support the validity of the Executive Decree and restore the.
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“There is an issue that we urgently have to discuss in relation to the legitimates who can access the Federal Supreme Court to question any law voted in Congress. This is a very serious problem that we have in Brazil. Everyone can access the Supreme and then the criticism here in relation to the decisions of the judiciary.”
Why is there constitutionality control?
Constitutionality control is the legal mechanism that ensures that all norms and acts comply with. “It is necessary because it occupies the highest place in the hierarchy of legal norms,” says constitutionalist lawyer Álvaro Jorge, professor at FGV Law Rio.
The existence of instruments that allow the compatibility to be verified between infraconstitutional standards and the constitutional text is what gives effectiveness to the idea of “constitutional supremacy”. “All acts of the state, including those of individuals, need to be in accordance with her,” says Jorge.
He points out that although the STF has the last word, all powers exert some kind of constitutionality control. For example, the executive can veto laws for constitutional reasons and the legislature makes prior analyzes in. But it is the Supreme Court, according to article 101 of the Constitution, which is the “guardian” of the letter.
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ADI, ADC, ADPF and ADO
The Brazilian legal system provides for different types of actions for concentrated control of constitutionality: the direct action of unconstitutionality (ADI), the declaratory action of constitutionality (ADC), the argument of non -compliance with fundamental precept (ADPF) and the direct action of unconstitutionality by omission (ADO). See your differences in the table below:
These devices aim to maintain the coherence of the legal system and prevent. “It is an objective mechanism of protection of the Constitution, returned to withdraw from the ordering incompatible rules or, in case of omission, compel the legislator to act,” says José Miguel Garcia Medina, partner of Medina Guimarães Advogados and professor at the State University of Maringá (UEM).
“The legitimates represent the powers of state or corporations essential to democracy and ensure that social groups with less institutional voice can also resort to the judiciary.”
Medina stresses that this choice of the 1988 Constituent Assembly guaranteed plurality and minority access channel. Article 103 of the Constitution defines a list of legitimates to file these actions in the Supreme Court:
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- President of the Republic;
- Chamber and Senate tables;
- Legislative Assembly tables;
- governors;
- Attorney General of the Republic;
- OAB Federal Council;
- parties with representation in Congress;
- union and national class entities.
Proposal can affect minorities
The alcohumbre proposal aims to restrict the current access of legitimates, and may block parties that have not reached the performance clause – in this case PSOL and New are among the targets.
“Reducing the list provided for in article 103 could weaken the protection of the Constitution and compromise the principle of,” warns Medina. According to him, smaller parties have historically been active in defending topics such as environment and human rights.
However, for this restriction to be valid, it would be necessary to change the Constitution. Article 103 Of course: such a change would require constitutional eume. Jorge recalls that, before 1988, only the Attorney General of the Republic had the prerogative of triggering the Supreme.
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“The expansion made by the Constituentian sought to exactly democratize the control of constitutionality, and restricting it now would be a setback. In times of political tension, such as the current one, it is natural that more actions reach the Supreme Court.”
Data from the STF panel “Open Cut” show that constitutionality control has been widely used. From 2020 to July 2025, the Supreme Court decided 5,916 ADIs, 134 ADCs, 1,869 ADPFs and 97 tados. Even so, when looking at the history of the last five years, the amount of adis and ADFPs have been relative annual fall (Check out the table below), while the other devices remained virtually stable.
Impact on the balance between powers
Even giving the final word, the Supreme does not act autonomously in these cases. For this, it needs to be caused to act. “The court does not choose the cases it wants to judge. It just decides when it is provoked,” recalls Álvaro Jorge. For him, the excess of political judicialization is the result of congressional behavior than the judiciary.
Already Medina points out that restricting access to the Supreme Court can unbalance a. “Without plural control, the risk of arbitrariness and violation of fundamental rights grows,” he says.
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In the evaluation of the EMU teacher, restricting constitutionality control mechanisms can create breaches so that the legislature takes advantage of abusive laws or stops acting in relevant situations, without an effective institutional path for contestation.
