Legislative Authority: Who Can Make Laws on What

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Brazil’s legislative authority divides the task of making laws among the Union (the federal government), the states, the Federal District, and the municipalities. Understanding this division prevents conflicts between laws and helps identify who is responsible for regulating each subject.

How the Federal System Divides Legislative Authority

The 1988 Federal Constitution adopted a model of cooperative federalism, dividing powers among the entities that make up the federation. Legislative authority, specifically, is the power to enact general and specific rules on particular subjects. This division is set out mainly in Articles 22, 23, 24, 25, and 30 of the Constitution, and reading them together is essential for any reliable analysis.

We routinely review situations in which state or municipal laws are challenged for encroaching on the Union’s authority, or the other way around. These disputes often reach the Supreme Federal Court through direct actions of unconstitutionality, and they show that the distribution of power remains a live issue in Brazilian law.

Powers Reserved to the Union

Article 22 of the Constitution lists the subjects reserved to the Union, meaning topics on which, as a rule, only the National Congress may legislate. They include civil law, criminal, procedural, electoral, agrarian, maritime, aeronautical, space, labor, commercial, and federal tax law. Matters such as telecommunications, energy, water resources, the guidelines and framework of national education, social security, and national defense also belong exclusively to the Union.

The constitutional division of powers is a technique for limiting power, preventing one level of government from invading the space of another.

The sole paragraph of Article 22 allows a complementary law to authorize the states to legislate on specific questions within those subjects. It is an important safety valve, used, for example, to regulate traffic in particular situations. In our experience, this kind of delegation is rare and always tightly limited.

Common Administrative Authority

Article 23 deals with common authority, which is not strictly legislative but administrative. It lists tasks that the Union, the states, the Federal District, and the municipalities must carry out together, such as caring for public health, protecting the environment, fighting poverty, and preserving historical heritage. This parallel action presupposes cooperation and coordination among the different levels of government.

Concurrent Legislative Authority

Article 24 creates concurrent legislative authority, which allows the Union, the states, and the Federal District to legislate at the same time on matters such as tax law, financial, penitentiary, economic, and urban planning law, as well as education, culture, teaching, sports, environmental protection, and liability for environmental damage. In these fields, the Union enacts general rules and the states add specific rules suited to local conditions.

If the Union does not enact general rules, the states may do so in full, exercising supplementary authority. When a federal law is later enacted, the state rule is suspended to the extent that it conflicts with it. This dynamic demands constant attention, especially in areas such as the environment and taxation, where disputes between levels of government are frequent.

Authority of the States and the Federal District

The states hold residual authority under Article 25, §1, which means they may legislate on anything the Constitution does not prohibit or reserve to the Union or the municipalities. They also organize their civil and military police forces, create metropolitan regions and urban agglomerations, and oversee local piped gas services. The Federal District combines state and municipal powers because of its hybrid nature.

Authority of the Municipalities

Municipalities have authority to legislate on matters of local interest (Article 30, I) and to supplement federal and state legislation where appropriate (Article 30, II). They are also responsible for organizing public transportation and for early childhood and elementary education, in cooperation with the other levels of government, and for promoting urban land-use planning through the master plan (plano diretor). This last point connects with urban planning law and with city development policy.

In our practice, we see that many conflicts arise when municipalities try to regulate topics that go beyond strictly local interest, such as economic activities with national reach or working hours. The deciding factor in these cases is identifying where the predominant interest lies, a standard developed in the case law of the Supreme Federal Court. For further reading, our constitutional law archive offers additional discussion of the subject.

Case Law Criteria and Landmark Decisions of Brazil’s Supreme Federal Court (STF)

In practice, the case law of the Supreme Federal Court is the main guide for interpreting the division of powers. The predominant-interest test, developed over decades, begins with a question: which level of government has the closest connection to the subject being regulated? When the matter is typically local, the municipality prevails. When it has a regional dimension, it falls to the states. When it requires uniform treatment throughout the country, the Union has authority. This standard works as an initial filter in any dispute over authority, although it cannot, on its own, resolve every case.

Recent decisions illustrate how the test is applied. The STF struck down a municipal law that regulated working hours in a specific activity, because it invaded the Union’s reserved power over labor law (Article 22, I, of the Constitution). In the opposite direction, it upheld a municipal law governing the opening hours of local businesses, treating the subject as predominantly of municipal interest, in line with Binding Precedent (Súmula Vinculante) 38. On environmental matters, the Court has allowed states and municipalities to set stricter rules than the Union, as long as they do not expressly contradict the general federal rules on the subject.

Another relevant point concerns concurrent authority in tax law. The Union enacts general rules on ICMS (the state tax on the circulation of goods and services), ISS (the municipal tax on services), and other taxes, while states and municipalities regulate aspects specific to local tax collection. Conflicts arise when a state law expands the situations in which a tax applies or creates tax benefits without support in the Kandir Law, which can lead to a “tax war” among levels of government. Complementary Law 24/1975, which governs the agreements of Confaz (the National Council of Finance Policy), and the position consolidated by the STF in several direct actions of unconstitutionality define the limits of this balance. Understanding this framework is essential for lawyers who work in tax planning, administrative tax litigation, and abstract constitutional review.

Frequently Asked Questions

Can a municipality legislate on labor law?

No. Labor law is reserved to the Union under Article 22, I, of the Constitution. Municipal laws that try to regulate working hours, wages, or labor obligations are considered unconstitutional because they invade federal authority.

What happens if a state and the Union legislate on the same subject?

In matters of concurrent authority, the Union enacts general rules and the states add to them. If there is a conflict, the federal rule prevails as to general rules, and the incompatible part of the state law is suspended for as long as the federal rule remains in force.

Who decides whether a law has invaded another level of government’s authority?

The Supreme Federal Court is the guardian of the Constitution and has the final say in disputes over legislative authority. The most common route is the direct action of unconstitutionality, which allows abstract review of the challenged rule and produces effects for everyone.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.