Competence to fight the coronavirus according to the Supreme Federal Court

Abstract

Introduction: the emergence of the worldwide coronavirus pandemic declared by the World Health Organization raised questions related to the actions of States, the Federal District and Municipalities to face it. Objective: to analyze the exercise of competing legislative competence and the normative vehicle pertinent to that exercise. Methods: the study started from the judgment of the Direct Action of Unconstitutionality (ADI, in Portuguese) No. 6,341/DF by the Supreme Federal Court, comparing the votes of the Rapporteur and of the Editor for the judgment, and then reviewed doctrinal aspects related to jurisdiction. Results: the votes of the Rapporteur and Drafting Ministers for the judgment differ in scope, since the first consecrates the formal aspect of jurisdiction and the second prioritizes the material aspect of protection of fundamental rights. Discussion: the Federal Government has priority in issuing public health laws, although the others can legislate concurrently in silence or in poor performance. Legislative conduct may occur by law or decree. Conclusion: public health matters, in the legislative field, are foreseen as a private competence of the Union and also competing with other entities. The Union's legislative provisions will prevail, except in the event of silence or deficient protection, which will attract the full performance of subnational entities, in the primacy of the protection of fundamental rights. In the exercise of competing legislative competence, the entities must comply with the requirement of a prior law to establish restrictions on the jurisdiction. Existing, regulation may occur by decree.