Normative power of regulatory agencies and the constitutionality of the intelligible principles

Abstract

Regulatory agencies exercise normative power on the basis of legal norms that, in a broad and abstract way, provide for what the doctrine has agreed to call intelligible principles. The intelligible principles only establish parameters and objectives to be achieved by the regulatory agency. The legislator only fixes beacons to the regulatory agency, although broad, sometimes based only on standards. There is a certain tension of intelligible principles with the classical meaning of the principle of legality, which provides that Public Administration cannot have any room for creation. Thus, some administrative authors consider this legislative technique unconstitutional. They advocate a maximalist view of the law: administrative entities should only enforce the law. This article demonstrates that the use of intelligible principles is constitutional and in line with current reality, and that there are other control mechanisms of the Public Administration. This article analyzes the current understanding of the principle of legality. Next, it examines the constitutionality of the Brazilian institutional design of creation of regulatory agencies with broad normative powers to edit infralegais acts. Finally, it addresses a concrete case judged by the Supreme Court, involving the limits of regulatory agency competence.