Have you ever wondered who "creates" the laws that govern your life? Is it only Congress that decides everything? Is a well-intentioned bill enough to become law?
The answer lies in a fundamental issue that is often overlooked: the legislative process. It is the heart of the legislative branch and the first democratic filter for laws to gain validity and legitimacy within the legal system.
In this text, I want to explore with you how this process works in practice!
The legislative process as a filter of legitimacy.
The legislative process functions as a constitutional mechanism for legitimizing legal norms, imposing institutional limits on the exercise of the power to legislate.
As stipulated in articles 59 to 69 of the Federal Constitution, the legislative process regulates the creation of so-called primary norms, that is, those that directly innovate in the legal order.
Consider:
Article 59. The legislative process comprises the drafting of:
I – Amendments to the Constitution;
II – supplementary laws;
III – ordinary laws;
IV – Delegated laws;
V – provisional measures;
VI – legislative decrees;
VII – Resolutions.
Sole paragraph. A supplementary law will provide for the drafting, writing, amendment, and consolidation of laws.
Each type of regulation has a specific procedural process, different quorums, and its own formal requirements.
Therefore, failure to observe these rules, as we will see below, may lead to a declaration of unconstitutionality of the norm, even if its content is materially legitimate.
Who has the authority to propose a regulation?
The first stage of the legislative process is the initiative, and this is where the first major validity filter begins.
Not every public authority can propose every type of regulation. Depending on the regulatory content and the type of legislation, the initiative can be:
a) Private initiative
It is the one exclusively assigned to a specific political agent and is non-transferable. A proposal submitted by a different individual is formally unconstitutional.
The most classic example is that of the President of the Republic, who has exclusive power to legislate on:
- Organization of the federal public administration;
- creation of public positions, functions or jobs (CF, art. 61, §1º);
- multi-year plans and budget guidelines (Brazilian Federal Constitution, art. 165).
The Superior Courts and the Public Prosecutor's Office also retain exclusive initiative regarding the internal organization of their careers.
b) Initiative exclusive to or reserved by institutional function
Here, the content of the proposal is reserved for a specific branch of government, by virtue of its typical function.
A recurring example is the power of the Supreme Federal Court to propose laws relating to its operation and structure, such as the creation of positions and the setting of remuneration for its members and employees (Brazilian Federal Constitution, art. 96, II).
Failure to observe this reservation of initiative also results in formal nullity.
c) Competing initiative
This is the general rule. The initiative is shared among various authorized parties: parliamentarians, permanent committees, the President of the Republic, the Supreme Federal Court, the Superior Courts, the Attorney General of the Republic, and citizens, through popular initiative (CF, art. 61 and art. 14, III).
Popular initiative, although provided for in the Constitution, is rarely used due to its requirements. For example, it requires the support of at least 1% of the national electorate, distributed across five states, with a minimum of 0,3% of voters in each of them.
The legislative process in the Houses
Once submitted, the legislative proposal is distributed to the standing committees of the legislative houses.
There, it will be analyzed from three central perspectives: constitutionality, legality, and merit.
In some cases, the project may be approved conclusively by the committees, without the need for a vote in plenary session.
However, as a rule, the text goes to the plenary for consideration, where it undergoes a roll-call vote according to the required quorum:
- Simple majority: more votes in favor than against, among those present;
- Absolute majority: majority of the members of the House (for example, 257 votes in the Chamber of Deputies);
- 3/5 of the members: required for constitutional amendments, in two rounds of voting.
The plenary debate is, in theory, the moment of greatest political visibility for the legislation. However, in practice, the dynamics of the legislative process are heavily concentrated in the hands of party leaders, the rapporteur, and behind-the-scenes negotiations.
Sanction, veto, and political control of the norm.
Once the deliberation phase in the National Congress is complete, the bill approved by both Houses is sent to the President of the Republic, who makes the final decision on whether to enact or reject it.
It is at this stage that the political control of the norm is inserted, marked by the possibility of sanction or veto, as provided for in article 66 of the Federal Constitution.
The sanction could be:
- expressWhen the President formally expresses his agreement with the project;
- Small cupWhen the constitutional deadline of 15 working days expires without a response, acceptance is presumed.
The presidential veto, however, can be:
- Legal, when based on unconstitutionality (conformity control with the Constitution);
- Political, when based on conflict with the public interest (which is a discretionary and eminently governmental criterion).
In both cases, the veto must always be justified and communicated to the National Congress within 48 hours, otherwise it will be considered a formal defect.
The justification for the veto is essential to preserve transparency and allow for its proper consideration by the Legislative Branch.
Review of the veto: decision of the National Congress.
It is important to note that a presidential veto does not end the legislative process.
In fact, the presidential veto is submitted to the analysis of the National Congress in a joint session, in accordance with §4 of article 66 of the Federal Constitution.
Its rejection requires a vote from an absolute majority of deputies and senators, in a secret ballot.
If the veto is upheld, the bill is shelved in the part that was vetoed.
If rejected, the text returns to the President for mandatory enactment.
In the event of omission, it will be up to the President of the Federal Senate to carry out the promulgation.
This dynamic reveals that ultimate political control over the law is not concentrated in the Executive branch, but is shared with the Legislative branch, which reinforces the system of checks and balances that structures the Brazilian constitutional model.
Promulgation and publication: the legal birth of the norm.
Once the process is complete, the regulation is enacted, which is the act that certifies its legal existence.
The promulgation takes place:
- By the President of the Republic, in the case of laws;
- By the Presidents of the Chamber of Deputies and the Senate, in the case of constitutional amendments and veto rejection.
The regulation is then published in the Official Gazette of the Union, and, unless otherwise provided, enters into force in 45 days ( vacatio legis rule of the LINDB, art. 1º).
The declaration of unconstitutionality
We must abandon the idea that flaws in the legislative process are "mere formalities." This is because respect for the procedural rules established by the Constitution is an essential condition for the legal validity of the resulting law.
Therefore, ignoring the steps, quorums, competencies, or the imposed form for certain proposals means compromising not only the legality of the norm, but also the democratic legitimacy of the legislation itself.
In this sense, Brazilian constitutional jurisprudence, especially that of the Supreme Federal Court, has been firm in affirming that substantial formal defects can render a norm absolutely unconstitutional, even if the material content of the law is compatible with the Constitution.
For illustrative purposes, the Supreme Federal Court, in ADI 7019/RO, declared unconstitutional a state law that prohibited the use of gender-neutral language in public and private schools.
The Court understood that, by legislating on educational content, the State of Rondônia encroached upon the exclusive competence of the Union to legislate on guidelines and bases of national education, under the terms of article 22, XXIV of the Constitution.
An invitation for you to deepen your studies.
Understanding these mechanisms is essential not only for those working in the legal field, but also for professionals in the areas of public policy, legislative consulting, and strategic advocacy with the branches of government.
If you wish to deepen your knowledge of these topics, understand the workings of the National Congress in practice, master legislative technique, and become qualified to work behind the scenes in the normative production process, the IDP Postgraduate Course in Legislative Law is the ideal path.
With live classes, a highly qualified faculty, and a methodology focused on the contemporary challenges of Brazilian democracy, IDP offers a comprehensive education connected to the country's institutional reality.
Access IDP's Postgraduate programs and be part of this journey of academic excellence.
Recommended reading:
To deepen the study of the legislative process and formal constitutional review, it is recommended to read the Courses on Constitutional Law by Minister Gilmar Mendes, and another by Professor Bernardo Gonçalves Fernandes, which offer a systematic analysis of formal defects and their legal consequences.
At the institutional level, the Internal Regulations of the Chamber of Deputies and the Senate, as well as the explanatory material from the Chamber of Deputies ("Understanding the Legislative Process"), are fundamental for understanding the federal legislative process.
In the field of case law, the judgments ADI 7019/RO, ADI 3703/RJ, and ADI 7203/RO stand out, illustrating the concrete impacts of procedural non-compliance.
