O fetiche pela vinculação formal na proposta de reforma administrativa

a vez da súmula vinculante do TCU?

Abstract

The Proposed Amendment to the Constitution No. 38/2025, recently presented to the National Congress with the purpose of implementing an Administrative Reform, among many points that could be highlighted, intends to authorize the Brazilian Federal Court of Accounts to issue binding enunciations, which would reach the other courts of accounts of the federation (and, indirectly, their controlled bodies). A critique is presented regarding the reliance on formally binding decision-making patterns when unaccompanied by theoretical-decisional criteria that allow for challenges to those paradigms in certain circumstances. It is also pointed out that the presented text should expressly restrict the binding enunciations of the Federal Court of Accounts to identical legal issues (or at least be interpreted in that way). Given the scope of this analysis, other relevant issues are not addressed, such as the absence of an express provision for an instrument to enforce compliance with the binding enunciations of the Federal Court of Accounts. In conclusion, it is argued that a conception of a decision-making pattern appropriate to the constitutional text must be susceptible to challenges (and not merely to distinguishing and overruling) and minimalist in the sense of directly addressing only identical legal issues. In response to the fetish for formally binding (absolutized) authority, which imposes on society the duty to err collectively, it is necessary for the legal community to consider ways to preserve the value of deciding (and interpreting) correctly. This is a theoretical essay, based on hermeneutic methodology and bibliographic research techniques.