10.6092/issn.2531-6133/7493
Annexation of local governments is a contentious topic. Litigation of annexation often addresses important constitutional provisions, such as property rights, federalism, limitations to police powers, equality and, more specifically, the Voting Rights Act. The United States Constitution is famously silent about local governments. In light of this omission and considering individual constitutional rights, would it make a difference to have local governments in the constitutional text? And to whom would it matter the most? This research developed an original dataset to answer those questions. This article focuses on annexation as proxy for local powers, and it compares the U.S. federalism scheme with the Brazilian unprecedented experience of leveling local governments alongside the states and the federal union in the Constitution of 1988. This research is unique in its comparison of the reasoning of the U.S. Supreme Court (U.S.S.C.) and its Brazilian counterpart, the Supremo Tribunal Federal (S.T.F.), with regard to annexation laws. The main contributions of this study to the literature are straightforward. First, it advances the literature on constitutional design by focusing on local governments, instead of states and the federal union. Second, and related to such an advancement, this paper departs from traditional federalism comparisons which were restricted to developed countries. Third, this research provides evidence contradicting previous claims that the U.S. constitutional omission of local governments was a failure of constitutional design relating to future matters. In addition, this study analyzes the consequences of the Brazilian constitutional design. This article concludes that there is no evidence supporting the proposition that the inclusion of municipalities as federal actors is necessarily superior to the current comparative trend that uses the dual spheres system of the U.S. federalism as a paradigm. Therefore, this research leads to unexpected results and provides evidence that contradicts the understanding of the U.S. constitutional omission of local governments as a failure of constitutional design.
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Carolina Arlota
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Brazilian Federalism
Should Local Governments be Included in the Constitution? A Comparative Analysis Between the U.S. and Brazilian Supreme Courts’ Reasoning Regarding Annexation Laws
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Carolina Arlota
2017/11/22
10.6092/issn.2531-6133/7493
149
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Brazilian Federalism
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Should Local Governments be Included in the Constitution? A Comparative Analysis Between the U.S. and Brazilian Supreme Courts’ Reasoning Regarding Annexation Laws
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ARTICLES & ESSAYS                                                        https://doi.org/10.6092/issn.2531-6133/7493




Should Local Governments Be Included in the Constitution?
A Comparative Analysis Between the U.S. and Brazilian Supreme Courts’
Reasoning Regarding Annexation Laws

                                             CAROLINA ARLOTA †




TABLE OF CONTENTS: 1. Introduction; 2. The U.S. Scenario; 3. The Brazilian Scenario; 4.
Discussion of Research Findings; 4.1. General Analysis of the Comparison and Related
Consequences for Fundamental Rights; 4.2. Insights Based on Constitutional Design; 5.
Conclusion.



ABSTRACT: Annexation of local governments is a contentious topic. Litigation of
annexation often addresses important constitutional provisions, such as property
rights, federalism, limitations to police powers, equality and, more specifically, the
Voting Rights Act. The United States Constitution is famously silent about local
governments. In light of this omission and considering individual constitutional rights,
would it make a difference to have local governments in the constitutional text? And to
whom would it matter the most? This research developed an original dataset to answer
those questions. This article focuses on annexation as proxy for local powers, and it
compares the U.S. federalism scheme with the Brazilian unprecedented experience of
leveling local governments alongside the states and the federal union in the
Constitution of 1988. This research is unique in its comparison of the reasoning of the
U.S. Supreme Court (U.S.S.C.) and its Brazilian counterpart, the Supremo Tribunal
Federal (S.T.F.), with regard to annexation laws. The main contributions of this study to
the literature are straightforward. First, it advances the literature on constitutional
design by focusing on local governments, instead of states and the federal union.
Second, and related to such an advancement, this paper departs from traditional
federalism comparisons which were restricted to developed countries. Third, this
research provides evidence contradicting previous claims that the U.S. constitutional
omission of local governments was a failure of constitutional design relating to future
matters. In addition, this study analyzes the consequences of the Brazilian
constitutional design. This article concludes that there is no evidence supporting the
proposition that the inclusion of municipalities as federal actors is necessarily superior
to the current comparative trend that uses the dual spheres system of the U.S.
federalism as a paradigm. Therefore, this research leads to unexpected results and
provides evidence that contradicts the understanding of the U.S. constitutional
omission of local governments as a failure of constitutional design.


KEYWORDS: Constitutional Design; U.S. Federalism; Annexation Law; United States Supreme
Court; Local Governments; Comparative Law; Law and Development; Voting Rights Act; Legal
Transplants; Brazilian Federalism.



                                            UNIVERSITY OF BOLOGNA LAW REVIEW

                                                    ISSN 2531-6133

                                                     [VOL.2:2 2017]

           This article is released under the terms of Creative Commons Attribution 4.0 International License


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         1. INTRODUCTION

Annexation is a contentious topic, being the most frequent form of boundary
change in the United States.1 Setting boundaries is of key importance for local
governments with regard to a variety of purposes: tax base, jurisdiction,
regulations, access to public services and rights to vote. 2 In 2015, there were
89,004 local government entities in the United States, and they levied
approximately 6.6% of this country’s (G.D.P.).3 Claims referring to annexation
of local governments in light of constitutional rights have significantly
increased in the United States.4 The U.S. Constitution is famously silent about
several provisions, including local governments. In light of this omission and
individual constitutional rights, would it make a difference to have local
governments in the constitutional text? And to whom would it matter the
most? This article aims at answering these questions. It focuses on annexation
as proxy for local powers, considering the absence of local governments’
provisions in the U.S. Constitution. It compares this scheme with the
unprecedented Brazilian experience of leveling local governments alongside
the states and the federal union in the Constitution of 1988. 5

         This research compares the reasoning of the U.S. Supreme Court
(hereinafter U.S.S.C.) with its Brazilian counterpart, the Superior Tribunal




†
 Carolina Arlota is a Visiting Assistant Professor of Law at the College of Law of the University of
Oklahoma. Contact address: carolarlota@ou.edu. I am grateful to Professors Nuno Garoupa, Laurie
Reynolds and Jose Antonio Cheibub for important comments on earlier versions. I would like to
thank anonimous referees of the UBLR for helpful feedback. Emilee N. Crowther provided excellent
research assistance. The common disclaimers apply.

1
  See RICHARD BRIFFAULT & LAURIE REYNOLDS, CASES AND MATERIALS ON STATE AND LOCAL GOVERNMENT
LAW 210-11 (7th ed. 2008).
2
  See Christopher J. Tyson, Annexation and the Mid-Size Metropolis: New Insights in the Age of Mobile
Capital, 73 U. PITT. L. REV., 505, 506-61 (2012).
Reports There Are 89,004 Local Governments in the United States, U.S. CENSUS BUREAU (Aug. 30, 2012),
https://www.census.gov/newsroom/releases/archives/governments/cb12-161.html.                    Local
governments levied, in taxes, $1303 billion in 2015. See Government Revenue Details, US GOVERNMENT
REVENUE (August 4, 2016), www.usgovernmentrevenue.com/numbers. Brazil currently has 5564
local governments, with revenue and mandatory transfers from the union reaching 8.6% of the
Brazilian G.D.P.. See Panorama 2011 bulletin, FRENTE NACIONAL DE PREFEITOS (Feb. 9, 2015).
4
    Along those lines and stressing that, historically, state governments legitimized racially,
national origin and class related discrimination: see Michelle Wilde Anderson, Cities Inside Out:
Race, Poverty, and Exclusion at the Urban Fringe, 55 UCLA L. REV. 1095, 1095-160 (2008). For an
illustration, see Chart I of this paper.
5
   For an analysis of Brazilian federalism, see CHARLES D. COLE, COMPARATIVE CONSTITUTIONAL LAW:
BRAZIL AND UNITED STATES 32-33 (2d ed. 2008).




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Federal (hereinafter S.T.F.), in relation to annexation laws.6 Federalism itself
has been associated with the success of the U.S. constitutionalism.7 As the U.S.
federal experience inspired Brazil, implications concerning comparative
constitutional design are considered.8

         A literature review on constitutional design reveals a multiplicity of
approaches.9      Regardless,       studies    on      local   governments           remain         largely
overlooked, despite being a relevant factor for fostering democracy. 10 As a
product of institutional choices and continuing experiences, the better a
constitutional design is, the more it should promote democracy by avoiding
permanent       political conflict.11 As litigation            increases, less institutional
predictability can exist, and economic growth is, therefore, jeopardized. 12
Despite belonging to distinct legal traditions, both courts are independent,
with similar jurisdiction when judging issues of local governments.13 In both
countries, such subject matter is generally dealt with at the state level, and the
Courts have jurisdiction only if specific violations of the federal Constitution
occur.14

           Insights based on constitutional design also contend that the scope and
the size of countries are relevant.15 In this direction, a comparison between
Brazil and the United States is pertinent, because both countries display


6
   The dataset for this research encompasses the decisions of the U.S. Supreme Court during the
long tenure of the U.S. Constitution until February 2014, and the decisions of the S.T.F. – during
the Constitution of 1988 until the same year. 2014 is the most recent year for which data could be
gathered.
7
   See Keith S. Rosenn, The Success of Constitutionalism in the United States and Its Failure in Latin
America: An Explanation, 22 U. MIAMI INT’L & COMP. L. REV. 1, 9-20 (1990).
8
   The study of comparative constitutional law has been founded on the U.S. Constitution. MARK
TUSHNET, Comparative Law and National Identity, in THE OXFORD HANDBOOK OF COMPARATIVE LAW 1226
(Mathias Reimann & Reinhard Zimmermann eds., 2008).
9
   This research uses expression “constitutional design,” despite its intrinsic limitations, including
how misleading the notion of design might be when applied to the complexity of social reality.
TOM GINSBURG, COMPARATIVE CONSTITUTIONAL DESIGN 1-2 (2012).
10
   See SUJIT CHOUDHRY & NATHAN HUME, Federalism, devolution and secession: from classical to post-
conflict federalism, in COMPARATIVE CONSTITUTIONAL LAW 377 (Tom Ginsburg & Rosalind Dixon eds.,
2011).
11
   See GINSBURG, supra note 9, at 10.
12
   See Ran Hirschl, The “Design Sciences” and Constitutional “Success”, 87 TEX. L. REV. 1339, 1339-74
(2009).
13
   Independence in the sense that there is no external and direct interference with each Supreme
Court’s final decision in a given case.
14
   Even in consideration of the constitutional amendments that occurred in Brazil in 1996 and
2008, the annexation of municipality occurs in the field of state law – albeit obedient to general
guidance that will be determined in a federal complementary law, one which does not exist.
15
   See Hirschl, supra note 12, at 1343.




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continental dimensions, with complex federal systems. This includes several
potential problems related to the implementation of policies at different
levels.16 No single metropolis dominates local governments in Brazil, with
Brazilian urban centers being geographically spread out as in the United
States.17 There have been limited attempts in literature to assess design choices
made by different federations.18           19
                                                This study aims to reduce this gap and to
mitigate the so-called parochialism in the current U.S. scholarship. 20 Moreover,
classical studies of federalism draw comparisons between countries of the
developed world, such as Australia, Canada, Switzerland, and the United
States.21 In this context, the comparison with Brazil brings a new perspective,
especially because of Brazil’s developing status.

         The    main     contributions          of    this   research     to     the      literature          are
straightforward. First, this research advances the literature on constitutional
design by focusing on local governments, while verifying if the absence of
constitutional provisions pertaining to local governments, as it is the case of
the U.S. Constitution, was, in fact, a failure of constitutional design relating to
future matters.22 Second, this research analyzes the consequences of the
Brazilian constitutional design, which went further by securing a place for
local governments as federal actors alongside the states and the federal

16
    For a discussion of the problems of implementation of federal level policies, see Hirschl, supra
note 12 at 1344–45.
17
   See DAVID SAMUELS, “Reinventing Local Government? Municipalities and Intergovernmental Relations in
Democratic Brazil”, in DEMOCRATIC BRAZIL 77 (Peter R. Kingstone & Timothy J. Power eds., 2000).
18
   Note that we refer to academic studies – not to work from practicioners and judges.
19
   See CHOUDHRY & HUME, supra note 10, at 359.
20
    For an empirical study finding evidence of U.S. parochialism with regard to federalism
scholarship, see Carol S. Weissert, Beyond Marble Cakes and Picket Fences: What U.S. Federalism
Scholars can Learn from Comparative Work, 73 J. POLIT. 965, 967-68 (2011). Emphasizing, long ago,
the necessity of further research about comparative constitutional law. See also Bruce Ackerman,
The Rise of the World Constitutionalism, 83 V. L. REV. 771, 794 (1997).
21
   See CHOUDHRY & HUME, supra note 10, at 356.
22
   See Hirschl, supra note 12, at 1348. (The omission of local governments in the constitutional text
was a failure of constitutional design regarding future matters.
            One among many manifestations of this problem in constitutional design is
            the silence of most pre-twentieth-century constitutions with respect to
            urbanization and the emergency of the megacity. Whereas principles of
            federalism in a two-layer system were usually set out, local government was
            often overlooked by constitutional framers . . . Because the city is not
            recognized as an autonomous constitutional entity, it is often not
            represented at pertinent public-policy bargaining forums . . . At the same
            time, because the megalopolis is home to so many people, it inevitably
            carries the brunt of governmental (in) action with respect to crime, poverty,
            homelessness, etc. Even more acute is the state of megacities in the
            developing world, where migration to the city and urban sprawl have long
            exceeded reasonable capacity.)




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union.23 In this sense, this research fosters the debate about the U.S.
federalism, while offering a perspective grounded in local government. 24

         In addition, this article is unique in its research, using annexation as a
proxy for local governments’ powers while looking at Supreme Court cases of
constitutional      review.     From      the    constitutional       review        standpoint,             the
comparison pursued in this research illustrates the predominant conflicts
among groups litigating in each country, offering evidence of what are the
main issues being disputed in local spheres with regard to annexation. It also
shows how each Supreme Court balances freedom of local governments and
national interests.25 Moreover, it is noteworthy that the study of constitutional
review itself is relevant on account of its positive correlation with economic
and political stability, which enhances business and economic growth. 26
Constitutional review contributes to stability and reassures parties and
investors that, for instance, countracts shall be fulffilded. By authorizing
independent courts to review potential abusive judicial decisions, executive or
legislative enactments, constitutional review advances the rule of law. The
more stable is a country, the more foreign investors will be interested in doing
business there.

         This paper is organized as follows. Sections II and III refer to the U.S.
and Brazilian scenarios, respectively, discussing the most controversial topics
regarding annexation in the decisions of the U.S. Supreme Court and those of
the S.T.F.. Section IV discusses the research findings, focusing on fundamental
rights and constitutional design. Section V concludes.




23
   See CONSTITUIÇÃO FEDERAL [C.F.] art. 18 (Braz.). Note that this article, when referring to Brazilian
municipalities, uses the term as a synonym to local government, because “municipality” is the
only admissible local government under the Brazilian Constitution of 1988.
24
    See CHOUDHRY & HUME, supra note 10, at 377 (highlighting the incidental position of local
governments in classical federalism, and the limited comparative studies).
25
    This research considers local government law from the perspective of national (federal laws)
and subnational (state laws) determinations, but it does not address cities as international actors,
i.e., the concept of cities as international. For such dimension, see Gerald E. Frug & David J.
Barron, International Local Government Law, 38 URB. LAW. 1 (2006).
26
   See Rafael La Porta, Florencio Lopez-de-Silanes, Cristian Pop-Eleches & Andrei Shleifer, Judicial
Checks and Balances, 112 J. POLIT. ECON. 445 (2004).




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         2. THE UNITED STATES SCENARIO

This section focuses on the federalism issues that the U.S.S.C. has addressed
when deciding matters related to the annexation of local governments. 27 It
investigates the limits of annexation in state law enunciated by the Court,
pertinent arguments relating to state powers, and how the highest court
developed its interpretation over time.

          This article turns to an analysis of the U.S. cases, which were classified
according to the main issues involved in the litigation. 28 The cases of each set
are grouped in chronological order, and the issues that address annexation
were considered by preponderance in relation to other issues raised by the
decisions29     This    division     intends      to   facilitate    further        discussion.            The
annexation cases were assembled in the following five groups: police power of
states over municipalities, succession of liability of counties, judicial review of
state statute, general decisions about due process of law, and racial
discrimination in connection with the right to vote.




27
    This research is interested in the progression of the U.S. Supreme Court’s dockets,
encompassing all of the cases that met the search criteria further detailed, being systematic and
coherent with the parameters used for the Brazilian S.T.F.. This study is a departure from the
methodology based on the “most difficult cases,” because a relevant part of it is to compare the
dockets of both Supreme Courts. For a survey about studies using the approach of the “most
difficult cases,” see Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53
AM. J. COMP. L. 125 (2005).
28
    West Law and Lexis Advance were consulted in a detailed online research. Only the cases that
appeared for both searches became part of the research cluster. Three searches were conducted, all
of them combining annexation with municipality, county, and local government, respectively.
Municipality, county, and local governments are the three most common denominations referring
to local governments as translated to the Brazilian “municípios.” After the pertinent exclusions,
this research found thirty-one decisions based solely on the cases that appeared on both search
tools of West Law and Lexis Research. Notwithstanding this number, this research further
addresses two cases that are relevant (and that were cited by scholars in the field that are related
to this federalism discussion, albeit not dealing with annexation directly). The final list of cases of
the electronic search is consolidated in Table 1. This research is limited until February 2014 in
order to permit all of the search mechanisms concerning Brazilian and U.S. cases to be updated.
29
    On the one hand, there were cases that did not appear in the search, because they did not
address annexation; nevertheless this article comments on them for purposes of completeness.
The two cases that are also discussed, because they refer to the application of the equal protection
clause to states (despite not dealing with annexation, directly) are: Avery v. Midlan County, 390 U.S.
474 (1968); Allegheny Pittsburgh Coal Co. v. County Comm’n., 488 U.S. 336 (1989). On the other hand,
there were cases that appeared in the search, but they were excluded because they did not directly
address annexation (or state and local government powers) in light of this specific form of
boundary change. There were several instances where annexation was not used in accordance with
the technical meaning object of this research, but as mere vernacular synonym of inclusion or
addition. This research focuses on general-purpose local governments. All of the cases dealing
with board of educations, special districts, and similar entities were excluded because
municipalities in Brazil do not encompass them.




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The first set of cases addresses police powers of the state over municipalities.
In the Slaughter-House cases, the U.S.S.C. held that the state had an exclusive
right under its police power to determine the localities where slaughtering was
allowed to occur.30 The U.S.S.C. also found that the laws of the federal
constitution (in particular, Thirteenth and Fourteenth Amendments) were not
applicable.31 There were, however, vigorous dissents.32

         The Slaughter-House cases represent a pioneer effort to challenge the
former understanding of the Court about federalism occurring for the first time
after the enactment of the amendments of the Reconstruction.33 Under the
traditional (Founding) federalism, such monopoly remains within the purview
of the state. After the Reconstruction era, there was a valid challenge, although
the majority’s decision denied the departure proposed by the plaintiffs. 34 The
majority decision was criticized on the grounds that it ultimately made the
Privileges or Immunities Clause meaningless. 35

         Another case dealing with the police powers arising out of the
protection of health and morals was Holden, where the Court determined that
state police power might validly limit the right of contract. For the Court, the
sheriff of Salt Lake County was merely executing the state law. 36

         Holt considered the exercise of police powers outside the limits of the
city of Tuscaloosa, Alabama.37 The Court upheld a statute which expanded the
city’s police powers to residents within a three miles radius of the municipal
corporate limits. For the U.S.S.C., the city’s police powers were not in violation


30
   Slaughter-House Cases, 83 U.S. 36 (1872). Technically, this decision rejected the application of the
Privileges and Immunity clause as well as the Equal Protection and Due Process contained in the
Fourteenth Amendment. For a discussion of how the Court modified the interpretation regarding
the latter, see ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 494-98 (4th ed.
2006).
31
   For a review of previous cases securing state power to regulate domestic affairs (including local
governments), and contending that the Fourteenth Amendments was not applicable, see RAUL
BERGER, FEDERALISM: THE FOUNDERS’ DESIGN 158-61 (1987).
32
   Slaughter-House Cases, 83 U.S. 36 (1872).
33
   See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 94 (1993).
34
    Id. at 95, 115 (contending that the Court refused to apply the Reconstructions amendments
beyond the limited scope of race).
35
    See JOHN HART ELY, DEMOCRACY AND DISTRUST 22-23 (1980) (noting that the final decision made
the Privileges or Immunities Clause meaningless, and emphasizing that the Court changed its
opinion about the Equal Protection Clause from The Slaughter-House Cases, but it has not done so
as to the Privileges or Immunities Clause).
36
   See Holden v. Hardy, 169 U.S. 366 (1898).
37
   See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978).




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of the understanding of “government without franchise being a fundamental
violation of the Due Process Clause.”38

         The cases comprised in that first set address a core question of the U.S.
federalism, namely, police powers. As a rule, protection of health and safety
can be regulated by the state under its police powers. The Slaughter House cases
confirmed so, at a time when freedom of contract was perceived as unlimited.
Holt authorizes the city to exercise police powers even outside its borders,
further blurring the division lines. It also provides an example of the
geographical, economic, political, and social functions of the U.S. boundaries,
which justified the expansion of police powers based on the effect that the lack
of regulation could have within the boundaries of a city.

         The second set of cases addresses the question of the succession of
liability of counties. In Commissioners of Laramie County, the U.S.S.C. decided
that absent a state constitution, the legislature has the power to reduce or
enlarge the area of a county, whenever public necessity or convenience
requires.39 The Court specifically stressed that if part of the territory of a town
and its inhabitants is separated by annexation to another town (or by creation
of a new corporation), the former corporation retains all property, powers,
rights, and privileges, remaining subject to all its obligations and duties,
unless some new provision was made by the act authorizing the separation. 40

         With similar reasoning, the U.S.S.C. affirmed that new towns formed by
annexation of parts of an old town remained severally liable for the bonds of

38
   “From a political science standpoint, appellants' suggestions may be sound, but this Court does
not sit to determine whether Alabama has chosen the soundest or most practical form of internal
government possible. Authority to make those judgments resides in the state legislature, and Alabama
citizens are free to urge their proposals to that body . . . The Alabama Legislature could have decided
that municipal corporations should have some measure of control over activities carried on just
beyond their ‘city limit’ signs, particularly since today's police jurisdiction may be tomorrow's
annexation to the city proper. Nor need the city's interests have been the only concern of the
legislature when it enacted the police jurisdiction statutes. Urbanization of any area brings with it
a number of individuals who long both for the quiet of suburban or country living and for the
career opportunities offered by the city's working environment. Unincorporated communities like
Holt dot the rim of most major population centers in Alabama and elsewhere, and state
legislatures have a legitimate interest in seeing that this substantial segment of the population
does not go without basic municipal services such as police, fire, and health protection.” Id at 73-
74 (dicta) (emphasis added). All the internal citations to cases hereinafter are omitted, unless
stated differently.
39
    See Comm’rs of Laramie Cty. v. Comm’rs of Albany Cty., 92 U.S. 307 (1875). This case was cited as
precedent for City of Worcester v. Worcester Consol. St. Ry. Co., 96 U.S. 539 , 548–49 (1905) (“The city
is a creature of the State . . . A municipal corporation is not only a part of the State, but is a portion
of its governmental power.”).
40
   See Comm’rs of Laramie Cty., 92 U.S. at 310–11.




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the dissolved town.41 Therefore, when a municipal corporation is dissolved and
a new corporation is created and predominantly composed of the same
community, it becomes the successor of the old corporation, liable for its debts.
The status of “being the same community” was defined as relating to the
taxable property being substantially the same, and having the same purposes
of the former municipal corporation. Further, the Court determined that the
U.S. Constitution forbids any legislative enactment that withdraws or limits the
remedies for the enforcement of obligations assumed by a municipal
corporation, if no substantial equivalent is provided.42

         In another decision, the U.S.S.C. held that, upon annexation, authorities
of towns or villages who were previouslt entitled to receive contractual benefits
from such entities will no longer receive. For the Court, the grant was
nonexistent, because the underlying obligation no longer exists, with the
ordinances of the city being extended over the territory immediately at the
moment of the annexation.43

         With regard to the annexation of a township to a city and the
contractual expiration of reduced fairs, the U.S.S.C cited Blair v. Chicago,
reiterating that grants must be interpreted strictly and with no contractual
rights enlarged by implication. Moreover, it involved no violation of
contractual obligations by the city or the taking of property without due
process of law.44 The U.S.S.C. later distinguished and reduced the scope of this
interpretation by considering the facts underlying such a contract, ultimately
determining that an extension of the diminished price would violate Article 1, §
10 of the Constitution and the general prohibition of states impairing the
obligation of contracts.45

         The second ensemble of decisions illustrates the interpretation of the
Court regarding contractual claims modified due to annexation. The Court
distinguished the annexation effects when considering bonds (which, as a rule,
had to be honored by the new entity) from the general contractual benefits.


41
   See Town of Mount Pleasant v. Beckwith, 100 U.S. 514 (1879).
42
   See Mobile v. Watson, 116 U.S. 289 (1886).
43
   See Blair v. City of Chicago, 201 U.S. 400, 488-89 (1906).
44
   See Detroit United Ry. v. Detroit, 229 U.S. 39, 44 (1913).
45
   See Detroit United Ry. v. Michigan, 242 U.S. 238, 252-53 (1916).




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Those benefits should be interpreted as nonexistent after the annexation, if
legal doubt existed. The Court considered values of morality and transparency,
which should inform public actions, even when they occurred in the closest
sphere to the public (local government).

        In a third set of cases, classification was based primarily on the
possibility of review by the judiciary of state statutes regarding annexation.
The first case addressed procedures pertinent to annexation. 46 It considered the
annexation of counties to the state of West Virginia after the Civil War,
determining that such annexation was valid, provided that the counties’
population voted for it in an election. The U.S.S.C. held that it had jurisdiction
over the lawsuit between the new state of West Virginia and the state of
Virginia, with allegations of fraud in the election not being relevant, to the
extent that the governor had certified the annexation in good faith. 47

        In a different case, the decision affirmed that the validity of
proceedings under a statute for the annexation of a territory to a city was a
determination of judicial nature, not a matter solely of legislative cognizance.48
The U.S.S.C. decided that, when the legislature acted validly in annexing new
territory to a city, the jurisdiction of the Court was not dependent on the form
that legislative action is expressed, but upon “ its practical effect and operation
as construed and applied by state court of last resort, and this irrespective of
the process of reasoning by which the decision is reached, or the precise extent
to which reliance is placed upon the subsequent legislation.” 49

        Another matter concerns the annexation of federal territory by a city. In
this regard, the U.S.S.C. previously stated that it has jurisdiction to decide the
case. The majority of the justices decided that the tax income levied on
employees of the federal plant was valid.50

        In another decision addressing the relationship between federal law and
state powers with the potential effect in annexation, 51 a unanimous Court

46
   See Virginia v. West Virginia, 78 U.S. 39 (1870).
47
   Id. at 62–63.
48
   See Forsyth v. Hammon, 166 U.S. 506, 515 (1897).
49
   Detroit United Ry. v. Michigan, 242 U.S. 238, 247 (1916).
50
   See also Howard v. Comm’rs of Sinking Fund, 344 U.S. 624 (1953).
51
   See FTC v. Phoebe Putney Health Sys., 133 S. Ct. 1003 (2013) (not directly about annexation, but
effects of this boundary change were considered in the rationale developed by the Court).




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declined to recognize state action immunity to a former state hospital
purchased by the local government. For the Court, because this hospital was
the only one in town, antitrust law did not authorize such immunity52. In a
different context removed from annexation, but also referring to limits of state
power, the Court determined that the Equal Protection Clause of the Fourteenth
Amendment         should     apply    to   state      action   that     selects the             party       for
discriminatory treatment by subjecting the party to taxes not imposed on
others in the same class.53

         The cases of the third set are relevant because they reiterate the judicial
review of state law regarding annexation. The first case, Allegheny Pittsburgh
Coal Co. v. Cty. Comm’r., stated that the political question doctrine does not
preclude the Court from deciding claims that arise out of boundary disputes
between states, even when such lines were determined in an agreement by
both states and Congress.54 It advanced the power of the governor over the
counties that were present in the governor’s state. The remaining cases
emphasized that judicial review did not jeopardize separation of powers, a
recurrent theme since Marbury v. Madison.55 Considering, specifically, FTC v.
Phoebe Putney Health System, the interpretation of the Court was consistent with
the state action doctrine, which fosters federalism by reserving an area of state
sovereignty.56 The doctrine of state action considers that the government has to
obey the Constitution, regardless of whether it resorted to a corporate form.
Ultimately, the decision did not encompass the hospital within the public
function exception.57

         The fourth set of cases comprises alleged violations to the due process
Clause protected by the Fourteenth Amendment. In the first case, the U.S.S.C.
decided that there was no violation of federal law or the Constitution in a
lawsuit arising out of an annexation case that plaintiffs argued had occurred in

52
   Id.
53
   See Allegheny Pittsburgh Coal Co. v. Cty. Comm’r., 488 U.S. 336, 345-46 (1989).
54
   See Virginia v. West Virginia, 78 U.S. 39, 60-61 (1870).
55
   Marbury v. Madison, 5 U.S. 137 (1803).
56
   See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 513 (4th ed. 2006).
57
   The public function exception refers to services that have been traditionally within the exclusive
prerogative of the government. For a complete review of the exceptions, see CHEMERINSKY, supra
note 55, at 517–38 (noting that utility companies are not a public function). As such, the
Constitution does not always have to apply. It is noteworthy that the so-called public function
exception is quite complex. An in depth analysis of its impact its outside the scope of this article.




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violation of their due process of law.58 The Court dismissed the case, noting
that it had no jurisdiction because the claim did not show a real and substantial
dispute with regard to the effect or construction of the Constitution, or under
color of federal law. In another case, the Court ruled that the discrimination
between individuals and corporations regarding the annexation to a city of
lands held for agricultural purposes cannot be attacked as unconstitutional.59
Hence, discrimination among agricultural lands and other lands considering
the right of a city to annex them is not in violation of constitutional guaranties
of due process Clause and equal protection of the laws because it is within the
power of the state to classify objects of their legislation.60

         Still considering annexation and potential violation of the due process
clause of the Fourteenth Amendment, the U.S.S.C. held in Hunter:

          Municipal corporations are political subdivisions of the state,
          created as convenient agencies for exercising such of the
          governmental powers of the state as may be entrusted to
          them. For the purposes of executing these powers properly
          and efficiently they usually are given the power to acquire,
          hold, and manage personal and real property. The number,
          nature and duration of the powers conferred upon these
          corporations and the territory over which they shall be
          exercised rests in the absolute discretion of the State. . . . . In
          all these respects the state is supreme, and its legislative
          body, conforming its action to the State Constitution, may do
          as it will, unrestrained by any provision of the Constitution of
          the United States.61



58
   See McCain v. Des Moines, 174 U.S. 168 (1899) (emphasizing the existence of state constitution
determining the issue, and the absence of violation to the U.S. Constitution).
59
   See Clark v. Kansas City, 176 U.S. 114 (1900).
60
   Id.
61
   See Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79 (1907). It is noteworthy that state law
provided for the annexation of cities, with the smaller being annexed to the larger. The majority of
both cities approved the annexation, but the majority of voters in Allegheny (the smaller city)
were opposed to the annexation. The lower courts and the U.S.S.C. affirmed the consolidation
decree, also based on the nonexistence of a contract between the citizens and the city of Allegheny
for a given taxation, which would be against the nature of municipal corporations. Moreover, the
Court decided that there was no deprivation of property without the due process in light of the
increased taxation applicable after the incorporation.




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Both cases in the fourth set deal with claims arising out of the Fourteenth
Amendment, showing how restrictively the Court has interpreted them.
Accordingly, municipalities were empowered through the interpretation
developed by the Court, who understood them as extension of the states.

         The fifth and final group of cases focuses on the decisions of the
U.S.S.C. with regard to racial discrimination and the right to vote. 62
Chronologically, this study begins with Gomillion,63 when the U.S.S.C., for the
first time in the context of annexation cases, limited the absolute power of
states conceived in Hunter.64 The Court held:

           Thus, a correct reading of the seemingly unconfined dicta of
           Hunter and kindred cases is not that the State has plenary
           power to manipulate in every conceivable way, for every
           conceivable purpose, the affairs of its municipal corporations,
           but rather that the State’s authority is unrestrained by the
           particular prohibitions of the Constitution considered in those
           cases.65

The U.S.S.C. further remarked that the Constitution limits legislative control of
municipalities, as any state power.66 This limitation warrants emphasis that in
the excerpt above the Court made an analogy with contractual rights in order
to secure the right to vote. The Court considered that the new boundaries were
a violation to the Fifteenth Amendment, depriving the citizens of the right to
aaaaaaaa

62
   For previous analysis of decisions about the right to vote in local elections, see Richard Briffault,
Who Rules at Home? One Person/One Vote and Local Governments, 60 U. CHI. L. REV. 339 (1993).
63
   See Gomillion v. Lightfoot, 364 U.S. 339, 342 (1960).
            The complaint amply alleges a claim of racial discrimination. Against this claim, the
            respondents have never suggested . . . any countervailing municipal function which Act
            140 is designed to serve. The respondents invoke generalities expressing the State’s
            unrestricted power – unlimited, that is, by the U.S. Constitution – to establish, destroy,
            or reorganize by contraction or expansion its political subdivisions, to wit, cities,
            counties, and other local units. We freely recognize the breath and importance of this
            aspect of the State’s political power. To exalt this power into an absolute is to
            misconceive the reach and rue of this Court’s decisions in the leading case of Hunter v.
            Pittsburgh, and related cases relied upon by respondents.
The Court further stressed that Lamarie was authoritative only regarding the general nonexistence
of a constitutionally protected obligation arising between a state and its subordinate governmental
entities, exclusively as the result of their relationship. See Gomillion, 364 U.S. at 343.
64
    See Hunter, supra note 60 (holding that municipal corporations were merely political
subdivisions of the state and created upon states’ discretion).
65
   Gomillion, 364 U.S. at 344.
66
   Id. at 344–45.




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vote due to their race.67 It reaffirmed that state power is immune to judicial
review if such power was exercised completely within the domain of state
interest. This is thus different from the case at bar, wherein the state power
was used to circumvent a federally protected right. 68 In addition, in Avery v.
Midland County, the Court stated that the Equal Protection Clause applies to the
exercise of state power, regardless if it was directly exercised by the state or by
a political subdivision.69

         In another decision, the U.S.S.C. upheld the modifications of Virginia’s
reapportionment statute for elections of members of the House and Senate,
which determined that legislative districts should not change. This would be
the case, despite the modification of boundaries after annexation.70 According
to the majority opinion, the reapportion plan did not violate the Equal
Protection Clause of the Fourteenth Amendment.71 In another similar decision,
aaaaaaaaa




67
   Id. at 345–46.
             A statute which is alleged to have worked unconstitutional deprivations of
             petitioners’ right is not immune to attack simply because the mechanism
             employed by the legislature is a redefinition of municipal boundaries.
             According to the allegations here made, the Alabama legislature has not
             merely redrawn the Tuskegee city limits with incidental inconvenience of the
             petitioners; it is more accurate to say that it has deprived the petitioners of
             the municipal franchise and consequent rights and to that end it has
             incidentally changed the city’s boundaries. While in form this is merely an
             act redefining metes and bounds, if the allegations are established, the
             inescapable human effect of this essay in geometry and geography is to
             despoil colored citizens, and only colored citizens, of their therefore enjoyed
             voting rights.
 Id. at 347.
68
    Id. at 347–48. The concurring opinion by Justice Whittaker located the federal protection right
within the Equal Protection Clause of the Fourteenth Amendment. Id. at 349 (Whittaker, J.,
concurring).
69
   Avery v. Midland Cty., 390 U.S. 474, 479 (1968). Importantly, this litigation was about an election
for County Commissioners in Texas – not a direct annexation procedure, but it was included
because it addressed annexation in dicta. It further stated that the Fourteenth Amendment
guaranteed that citizens have equal representation in political subdivisions that exercised policy-
making functions. Id. at 481.
70
   See Mahan v. Howell, 410 U.S. 315 (1973).
71
   The Court held that there was no violation of the principle of one person, one vote, because it
understood the state’s objective of preserving the integrity of political subdivision as rational, to
the extent that it corroborated the legislative goal of facilitating enactments of statutes referring
solely to local matters. Id. at 326–28. Nevertheless, Justice Brennan partially dissented, citing that
the deviation of 16,4% between the most overrepresented and the most underrepresented
legislative districts in a state’s lower legislative house is constitutionally impermissible and
cannot be justified on the ground that the state adhered to political subdivisions lines when
designing the districts. Id. at 345–49 (Brennan, J., concurring in part and dissenting in part).




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the Court also found no violation of such clause, justifying its holding in
Hunter.72

         In Perkins v. Matthews, the U.S.S.C. considered violations to §5 of the
Voting Rights Act of 1965 (42 U.S.C.S. §1973c) in the context of annexations
and related changes to the boundaries of adjacent areas that aimed to expand
the number of eligible voters.         73




         The U.S.S.C. further explained the meaning of §5 of the Voting Rights
Act in City of Richmond v. United States, a lawsuit that arose out of a post-
annexation statute that reduced the African American population by 10% in
comparison with the pre-annexation electoral base.74 City of Richmond was later
used as precedent to validate other actions with similar impacts, despite not
being related to annexation.75

         In addition, the U.S.S.C. determined that it was necessary for political
units of a state covered within the jurisdiction of the Voting Rights Act to
comply with the mandatory preclearance procedures of §5 of the Act, holding
aaaaaaaaa




72
   For a case demonstrating a new county charter that required approval under New York law, by a
referendum of separate majorities of the voters who lived in the city within the county, and of
those who lived outside city boundaries, see Town of Lockport v. Citizens for Cmty. Action at the Local
Level, Inc., 430 U.S. 259 (1977).
73
   Perkins v. Matthews, 400 U. S. 379 (1971). The case arose out of a Mississippi’s city statute
changing the location of polls, modification of boundaries changes, among others, in an election
for mayor and aldermen. It emphasized that the Voting Rights Act of 1965 covered the city. The
U.S.S.C. further stresses that section five was conceived to address changes that hold a potential
for racial discrimination in voting. Id. at 388 (citing Gomillion v. Lightfoot, 364 U.S. 339 (1960)).
74
   City of Richmond v. United States, 422 U.S. 358 (1975).
75
   See United Jewish Org’s., Inc. v. Carey, 430 U.S. 144, 160 (1977).




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that the city failed to prove that there was no discrimination. 76 Along those
lines, the Court determined that the new boundaries, resulting from two
consolidations and one annexation in Texas, 77 were in violation of §5, due to
insufficiently neutralizing the adverse impact on minority voting. 78

         In another landmark decision, the U.S.S.C. concluded that annexation of
inhabited land by a municipality was also subject to the preclearance
requirement of §5, because it constituted a change in the voting practices. 79 The
Court also attended to the nonexistence of African Americans in the previous
annexation configuration as not being relevant, because the impermissible
purpose under §5 referred to contemporary and future circumstances. 80 In
another case of reapportionment in the context of the Voting Rights Act, the
Court ruled that the scheme was so irrational on its face that it could be
understood solely as an effort to segregate districts on the basis of racial
classifications.81

         Notwithstanding the previous case law concerning the Voting Rights
Act, the Court decided that the Act was not applicable to the changes made in



76
   See City of Rome v. United States, 446 U.S. 156 (1980). Technically, the annexations are in reference
to elections for City Commission and Board of Education. The decision in City of Rome asserts:
“Congress plainly intended that a voting practice not be pre-cleared unless both discriminatory
purpose and effect are absent.” Id. at 172 (emphasis in original).
             [T]he District Court properly concluded that these annexations must be
             scrutinized under the Voting Rights Act. See Perkins v. Matthews, 400 U.S., at
             388-90. By substantially enlarging the city's number of white eligible voters
             without creating a corresponding increase in the number of Negroes [sic],
             the annexations reduced the importance of the votes of Negro [sic] citizens
             who resided within the pre-annexation boundaries of the city. In these
             circumstances, the city bore the burden of proving that its electoral system
             ‘fairly reflects the strength of the Negro [sic] community as it exists after the
             annexations.’ City of Richmond v. United States, 422 U.S. 358, at 371. The
             District Court's determination that the city failed to meet this burden of
             proof for City Commission elections was based on the presence of three vote-
             dilutive factors: the at-large electoral system, the residency requirement for
             officeholders, and the high degree of racial bloc voting. Particularly in light
             of the inadequate evidence introduced by the city, this determination cannot
             be considered to be clearly erroneous.
City of Rome, 446 U.S. at 187.
77
   See City of Port Arthur v. United States, 459 U.S. 159 (1982).
78
   Id. at 162. The Court considered two previous plans and related findings of their discriminatory
effect in order to determine that the third plan at bar was also tainted. Id at 168.
79
   See Pleasant Grove v. United States, 479 U.S. 462, 467 (1987) (citing City of Rome, where the
majority of the annexations were of vacant land).
80
    Id. at 471.
81
   See Shaw v. Reno, 509 U.S. 630, 640-52 (1993). This case does not encompass any annexation
procedure directly, but it is included because the majority decided that appellants were able to
state a cause of action (citing annexation in dicta), and the case appeared in our online search.




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the allocation of powers of the county commissions. 82 According to the majority
of the U.S.S.C., §5 was applicable only to changes that affected voting,
candidacy requirements and qualifications, or the composition                                     of the
electorate.83

         In a case involving the dilution of votes of governing authorities of
counties in Georgia,84 the Court distinguished the application of §2 of the
Voting Rights Act from §5.85 In another case, the Court decided that there was
no dilution of minority votes in a reapportionment plan from the Florida
legislative.86

         This research considered the decision of Shelby v. Holder, to the extent
that the Court discussed the federalism pact in order to rule §4(b) of the Voting
Rights Act unconstitutional.87 According to the majority, the formula used in
aaaaaaaaa




82
   See Presley v. Etowah Cty. Comm’n, 502 U.S. 491 (1992).
83
   Id. at 501–09.
84
   See Holder v. Hall, 512 U.S. 874 (1994).
85

            Retrogression is not the inquiry in section 2 dilution cases (whether voting
            practice ‘results in a denial or abridgement of the right of any citizen of the
            United States to vote on account of race or color’; . . . Plaintiffs could not
            establish a section 2 violation merely by showing that a challenged
            reapportionment or annexation, for example, involved a retrogressive effect
            on the political strength of a minority group’). Unlike in section 5 cases,
            therefore, a benchmark does not exist by definition in section 2 dilution
            cases. And as explained above, with some voting practices, there in fact may
            be no appropriate benchmark to determine if an existing voting practice is
            dilutive under section 2. For that reason, a voting practice that is subject to
            the preclearance requirements of section 5 is subject to the preclearance
            requirements of section 5 is not necessarily subject to a dilution challenge
            under section 2.
 Id. at 884-85.
86
   See Johnson v. De Grandy, 512 U.S. 997, 1019 (1994) (emphasizing that Richmond v. United States
referred to territorial annexation designed to dilute African American votes was forbidden by
section five of the VRA, regardless of its actual effect).
87
   See Shelby Cty. v. Holder, 133 S. Ct. 2612 (2013).




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the Act was forty years old and no longer reflected the realities in the states
covered by it.88 The U.S.S.C. asserted:

           The Voting Rights Act of 1965 employed extraordinary
           measures to address an extraordinary problem. Section five of
           the Act required States to obtain federal permission before
           enacting any law related to voting—a drastic departure from
           basic principles of federalism. And section four of the Act
           applied that requirement only to some States—an equally
           dramatic departure from the principle that all States enjoy
           equal sovereignty. This was strong medicine, but Congress
           determined it was needed to address entrenched racial
           discrimination in voting. As we explained in upholding the
           law, “exceptional conditions can justify legislative measures
           not otherwise appropriate.”89

In light of U.S. federalism, the Court explained that the federal government is
not generally authorized to review and veto state enactments before they go
into effect. This is true despite such power being considered at the time of the
Convention, anddenied in favor of the Supremacy Clause and related potential
challenges occurring after the effect of state law. 90 Also, the Court reaffirmed
that the Tenth Amendment grants to the states all the powers not specifically
granted to the federal government, and that “ not only do States retain
sovereignty under the Constitution, there is also a ‘fundamental principle of
equal sovereignty’ among the States.”91 The dissenting opinion justified the



88
    The decision emphasizes that African American voter turnout actually increased in five of the
six states originally covered by the VRA, of 1965. Id. at 2619. Shelby County is located in Alabama.
The following states were originally covered by section five: Alabama, Georgia, Louisiana,
Mississippi, South Carolina and Virginia. Arizona and Texas were included in 1972, also in their
totality. The majority of the Court noted in Shelby that by 1965 the Act divided the states among
those which have literacy tests (coupled with low voter registration and turn out) and those which
did not; nowadays, for the Court: “the Nation is no longer divided along those lines, yet the Voting
Rights Act continue to treat it as if it were.” Id. at 2628. At the time of the Shelby decision, Florida,
New York, North Carolina, South Dakota and Michigan were partially included, according to data
from the Department of Justice of the United States. There is no information available with regard
to the current jurisdictions covered after Shelby (and its potential bail out effect). Jurisdictions
Previously Covered By Section 5, U.S. DEPARTMENT OF JUSTICE (last updated Aug. 6, 2015),
http://www.justice.gov/crt/about/vot/sec_5/covered.php.
89
   Shelby Cty., 113 S. Ct. at 2618.
90
   Id. at 2623.
91
   Id.




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exceptions based on the remaining necessity of differentiated treatments for
the states mentioned in the Act.92

         The majority holding in Shelby can be understood as being aligned with
the current trend of using tradition to limit the judicial review of the
democratic process at state and local levels. 93 Nevertheless, tradition itself has
been subject to criticism, because the U.S. experience is founded on multiple
traditions.94 In addition, the assurance of the legislative representation of
minorities remained the core of the Act, and it is unclear, as of today, how the
decision of the Court affects those to whom the protection was designed.95

         Still considering the Shelby decision, a related topic of particular
interest for this comparison with Brazil is the fact that the U.S.S.C. determined
that Congress did not act –or did not consider doing so – despite the warning
given by the U.S.S.C. in a decision dating back to 2009, determining that the
formula of §2 must be updated.96




92
   The dissent opinion written by Justice Ginsburg – joined by Justices Breyer, Sotomayor and
Kagan – specifically addresses annexation as a form of discrimination in different passages where
it was emphasized that Pleasant Grove, a city in a neighbor county of Shelby, acted with
purposeful discrimination when annexing all white areas and denying the annexation request of
an adjacent black neighborhood. Id. at 2535, 2646 (Ginsburg, J., dissenting) (citing Pleasant Grove v.
United States, 479 U.S. 462 (1987)).
93
   See CASS R. SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO? 80-81 (2001) (arguing as
potential explanations for such approach as follows: the fact that the U.S. Constitution is better
understood for the Court if being preservative, and that the due process clause is better
interpreted in a very restrictive form. According to the author, both understandings would reduce
the Court’s discretion).
94
   Id. at 82–87 (criticizing the use of tradition regarding race).
95
   See DONALD HOROWITZ, Constitutional Design: Proposals versus process, in THE ARCHITECTURE OF
DEMOCRACY: CONSTITUTIONAL DESIGN, CONFLICT MANAGEMENT AND DEMOCRACY 19 (Andrew Reynolds ed.,
2002).
96
   Shelby, 113 S. Ct. at 2615 (referring to Nw. Austin Mun. Utils. No. One v. Holder, 557 U.S. 193 (2009)).
The Shelby decision emphasizes that Congress could have updated such formula when it extended
the Voting Rights Act of 1965 through its reauthorization in 2006. Id. The Court stated:
             Our decision in no way affects the permanent, nationwide ban on racial
             discrimination in voting found in section two. We issue no holding on section
             five itself, only on the coverage formula. Congress may draft another formula
             based on current conditions. Such a formula is an initial prerequisite to a
             determination that exceptional conditions still exist justifying such an
             ‘extraordinary departure from the traditional course of relations between the
             States and the Federal Government.
 Presley v. Etowah Cty. Comm’n, 502 U.S. 491, 500-01 (1992). “Our country has changed, and while
any racial discrimination in voting is too much, Congress must ensure that the legislation it
passes to remedy that problem speaks to current conditions.” Id. at 2631. The dissent opinion
vehemently criticizes such an understanding. Id. at 2632-33 (Ginsburg, J., dissenting).




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         3. THE BRAZILIAN SCENARIO

Brazilian re-democratization process started in 1979, with the appointment of
the moderate military João Figueiredo as President, leading to the gradual
ending of the overcentralized military ruling. In 1982, the first direct election
for governors since the 1964 coup d’état was held.97 After a long deliberation,98
the Constitution of the Brazilian Republic was approved on October 5, 1988 by a
Constitutional Convention that included federal congressional representatives
(deputies) and senators.99 Mayors and governors were among the most
powerful actors in lobbying for decentralization, fomenting a constitutional
order that became a “center-constraining federation unprecedented in
Brazilian history.”100

         In light of the above, Brazilian federalism has shown complex
dynamics.101 The President needs to engage in as many coalitions of political
parties as possible, while reconciling local and regional demands that dominate
each party.102 Accordingly, national interests are often belittled if conflicting
with state or local demands. In this scenario, the ongoing constitutional
amendments impacting local governments and political scandals involving
Presidents loomed in the background as the S.T.F. decided the cases in our


97
     For information concerning Brazilian elections for state governors, federal deputies, and
senators from 1945 until 1990, see Brazilian Superior Tribunal for Electoral Law, TSE (Feb. 20, 2015),
http://www.tse.jus.br/eleicoes/eleitos-1945-1990/cronologia-das-eleicoes.            Direct    elections
brought a “dramatic change in the executive-legislative relations (even though a military
President remained in office until 1985),” because democratic state elections pressured the
President and ultimately leaded to state governors conquering more decentralization of revenues.
SAMUELS, supra note 17, at 169
98
     The Constitutional Convention met between February 1987 until September of 1988. The
Brazilian Constitutional Convention was not elected nor formed by delegates directly elected to
write the Constitutional text itself, due to a compromise during the transition period from the
military ruling to democracy. CLÁUDIO PEREIRA DE SOUZA NETO & DANIEL SARMENTO, DIREITO
CONSTITUCIONAL: TEORIA, HISTÓRIA E MÉTODOS DE TRABALHO 156 (2013).
99
     The less populated states of North and Center West were favored in the unbalanced
representation of their states’ senators in the Convention, because all states are have equal
representation in the Brazilian Senate. The non-updated number of federal deputies per state
(disregarding population growth in the Southeast) also disfavored the southeast states, see SOUZA
NETO & SARMENTO, supra note 97, at 160.
100
     Celina Souza, Brazil: The Prospects of a Center-Constraining Federation in a Fragmented Polity, 32
PUBLIUS., 23, 31 (2002). It is noteworthy that Brazil has had lasting periods with state governors
being very empowered, such as during the so-called Old Republic.
101
     Local forces have long united forces with their respective state authority to pressure the federal
government. The local authority is very empowered. A classical reference on this understanding
and peculiarities that impact federalism, see VICTOR NUNES LEAL, CORONELISMO, ENXADA E VOTO: O
MUNICÍPIO E O REGIME REPRESENTATIVO NO BRASIL (7th ed., 2012).
102
    SCOTT MAINWARING, Multipartism, Robust Federalism, and Federalism in Brazil, in PRESIDENTIALISM AND
DEMOCRACY IN LATIN AMERICA 83-4 (Scott Mainwaring & Matthew Soberg Shugart eds., 1999).




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dataset. And, as any Supreme Court in the world, the S.T.F. has to consider its
own political capital and incentives for compliance by the involved parties.

         This research is limited to the decisions that occurred during the
Constitution of 1988 until February of 2014. 103 The reasons for choosing this
time period are threefold. First, the Constitution of 1988 modernized the
Brazilian tradition, as previously mentioned, by elevating municipalities to the
status of federal actors (with states and the federal union). Second, the
Constitution of 1988 technically ended the transition phase from the end of the
military regime (1985) to democracy. Third, new constitutions are most
susceptible to risk of replacement within their first nineteen years. 104
Consequently, this study covers a temporal duration greater than this critical
period.105

         With regard to the composition of the lawsuits, this dataset indicates
that the S.T.F. was not called upon to decide cases involving fundamental
rights.106 The issues at bar relate to the application (including clarification) of
the objective constitutional requirements of annexation. It is worth noting that
the U.S. concept of annexation is equivalent, in practice, to the concept of
“dismemberment through annexation” in the Brazilian constitutional text.
According to this Brazilian modality, both municipalities remain in existence. 107
The regions that presented a highest number of lawsuits were the Northeast
(mainly due to the federative state of Bahía) and the Center West (because of
Mato Grosso).108




103
     This search was conducted using the website of the S.T.F.: Pesquisa de Jurisprudência, SUPREMO
TRIBUNAL FEDERAL, http://www.stf.jus.br/portal/jurisprudencia/pesquisarJurisprudencia.asp (last
visited Aug. 4, 2016). Table 2 contains the final decisions of the S.T.F.. No singular or panel
decisions were considered, because only the Court en banc has jurisdiction to decide a unique and
novel constitutional question or to departure from previous case law.
104
     See ZACHARY ELKINS, TOM GINSBURG & JAMES MELTON, THE ENDURANCE OF NATIONAL CONSTITUTIONS
129 (2009).
105
     Establishment, merger, fusion, and dismemberment of municipalities appeared together in
the search mechanisms of the S.T.F., due to the writing of the constitutional provisions and the
less technical terminology used by litigants. After the appropriate exclusions (mainly referring to
annexation as a term of commercial law), this research analyzed sixteen decisions (see tbl 2).
106
    See Chart 2, which illustrates the lawsuits over time.
107
    For detailed definitions of dismemberment in the context of state law see ALEXANDRE DE MORAES,
DIREITO CONSTITUCIONAL 308-10 ( 28th ed., 2009).
108
    Bahía is the third state in number of municipalities. Mato Grosso is within the national average.
Notícias, SENADO FEDERAL, http://www12.senado.gov.br/noticias/entenda-o-assunto/municipios-
brasileiros (last visited on August 4, 2016).




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Concerning the dynamics of the federative pact, we note that the vast majority
of the Adins were started either by the Attorney General of the Republic or by
national parties.109 The direct board of a legislative assembly of a state filed
only one Adin.110 Hence, the litigation became a national one, as it was no
longer limited to the local level.

        At this point, the focus is the legal issues decided. The Court declined to
rule on the constitutionality of a resolution for the state assembly of the state
of Rio de Janeiro.111 It specified that for the annexation of municipality, the
previous plebiscite must occur in accordance with the federal Constitution,
while declaring that the municipality was also a creature of the member state.

        After the Constitutional Amendment 15/96, the S.T.F. determined that
all the procedures referring to municipal boundary changes must be suspended
until the federal complementary law was approved. 112 The Court also
distinguished the municipality as autonomous under article 18 of the
Constitution. In this decision, the S.T.F. stressed that municipalities could no
longer be matters of the private interest of the state, as in previous
Constitutions.113     The     S.T.F.    also    dismissed       allegations         attacking            the
constitutionality of the Constitutional Amendment 15. Those allegations were
based in an arguable violation of the federative pact in which protection is
granted among the immutable clauses of the Constitution (article 60,
paragraph 4, I).114 The S.T.F. decided that Amendment 15/96 did not violate the
essential nucleus of the autonomy of the member states when the amendment
was modified from state complementary law to federal law.


109
     The Attorney General of the Republic filed the following ten Adins: ADI 1372 MC/RJ; ADI 1373
MC/PR; ADI 2702/PA; ADI 2632/BA; ADI2994/BA; ADI 3149/SC; ADI 3489/SC; ADI 3316/MT; ADI
3682/MT; and ADI 4992 MC/RO. Political parties initiated five Adins: ADI 2381MC/RS; ADI
2632MC/BA; ADI 3615/PB; ADI 2240/BA; ADI 3689/PA.
110
    See ADI 2395 /DF.
111
    See ADI 1372 MC/RJ, of 1995. Also determining that the plebiscite must occur before the changes
in the municipal boundaries: ADI 1373 MC/PR, of 1995.Attention should be given to the fact that
those decisions occurred prior to the Constitutional Amendment 15/1996. Although, the necessity
of previous plebiscite has been maintained by the amended text.
112
    See ADI 2381 MC/RS, of 2001.
113
    The leading case is the ADI 3682/MT, of May 05, 2007, when the S.T.F. considered that after
eleven years after the Constitutional Amendment 15, of 1996, it was unreasonable for Congress to
not have promulgated the federal complementary law, despite several legislative proposals.
Neither the House nor the Senate actually discussed (let alone voted) the federal complementary
law. GILMAR FERRREIRA MENDES & PAULO GUSTAVO GONET BRANCO, CURSO DE DIREITO CONSTITUCIONAL
1160 (8th ed., 2013).
114
    In this direction: ADI 2381 MC/RS, of 2001; ADI 2395/DF, of 2007.




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Several later decisions required that the modifications of municipal boundaries
could only be valid if two conditons were met. First, the promulgation of
federal complementary law and, second, previous approval by plebiscite of the
involved population.115

         The change of paradigm in the understanding by the S.T.F. occurred in
2007, when the Court judged several direct actions of unconstitutionality on
the same date, despite those actions presented different justices as rapporteurs
(reporters).116 Importantly, further decisions reiterated the new position of the
Court.117

         The most recent decisions of the S.T.F. still deny annexation of
municipalities when based on state laws, if those boundary changes were
enacted after the Constitutional Amendment 57/2008. The Court stressed that
the   Constitutional        Amendment          57,    modifying     the      Act       of      Transitory
Dispositions of the Constitution, validated solely the boundary changes enacted
by municipalities between the Constitutional Amendment 15/96, and December
of 2006.118 Accordingly, the Court interpreted the modification of the Transitory
Acts quite literally, and as restrictively as possible, in order to protect the
constitutional      order    as    a   whole.The       Court    was     mindful           of     potential
discontinuity of the legal order and related uncertainties.

         This study contends that local actors in Brazil must be restrained and
act in accordance with constitutional commands. This recommended course of
action      consists   in   obeying      the    S.T.F.   and     refraining         from        annexing
municipalities in the absence of the pertinent federal complementary law. It
also consists of complying with specific constitutional principles of legality,


115
    In the same vein: ADI 2632 MC/BA, of 2002 (in limine, i.e., by injunction); ADI 2702/PR, of 2003;
ADI 2632/BA, of 2004 (final decision); ADI 2994/BA, of 2004, ADI 3149/SC, of 2004; and ADI
3615/PB, of 2006.
116
    ADI 2240/BA, of May, 5 2007, whose rapporteur was Justice Eros Grau, granted twenty-four
months for the Congress to legislate. ADI 3489/SC was also judged on the same day and with the
same rapporteur, but it determined eighteen months for Congress to act. All of the decisions were
unanimous, concerning as matters of unconstitutionality, although the majority decided as to the
unconstitutionality of the boundaries change. Another case decided on the same date and with
Justice Eros Grau as rapporteur, but establishing eighteen months: ADI 3316/MT. In the direct
action of unconstitutionality by omission, ADI 3682/ MT, from the same date, but having as
rapporteur Justice Gilmar Mendes, it was emphasized that the inaction of Congress was
unconstitutional and that the twenty-four months deadline did not refer to Congress to act; it
referred solely to the state laws altering the boundaries of the municipalities to remain valid.
117
    See ADI 3689/PA, of 2007.
118
    See ADI 4992 MC/RO, of 2013.




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efficiency and morality, which are mandatory to all public administration. 119
Those principles will support informed conduct, including detailed assessment
of the financial feasibility of annexation. Therefore, local forces cannot remain
unchecked, with the municipal boundaries being altered in a clear violation of
the constitutional order.




            4. DISCUSSION OF RESEARCH FINDINGS

This section is divided into two subsections. Subsection A focuses on the
general analysis of the comparison, including fundamental rights. Subsection B
discusses the impact of these findings based on constitutional design. The
decisions of both Supreme Courts were approached with no preconceptions.




      4.1. GENERAL ANALYSIS OF THE COMPARISON AND RELATED CONSEQUENCES FOR

FUNDAMENTAL RIGHTS

This research considers annexation as proxy for local powers in two
distinguished constitutional experiences. Our findings validate the claim that
local governments are more empowered in the United States in light of the
reduced number of national litigation in the U.S.S.C.. The decisions of the S.T.F.
are higher in relative numbers, while presenting limited subject matters in
comparison with the decisions of the U.S.S.C.. The first explanation refers to
the period of time, since the analyzed U.S. decisions date back to the inception
of the Constitution. Having thirty-one annexation cases in our dataset (and
considering that the U.S. Constitution was signed in 1787) does not corroborate
the understanding that the absence of local governments in this founding
document is necessarily negative.120 There is no evidence that the absence of
constitutional provisions about local governments nowadays contributes to an
increase of litigation. Remarkably, the bulk of U.S. litigation analyzed in the




119
      See CONSTITUIÇÃO FEDERAL [C.F.] art. 37 (Braz.).
120
      See Hirschl, supra note 12, at 1348.




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context of annexation has been after the Voting Rights Act of 1965.121 If such
cases were to be disregarded, the number of litigation in both courts is almost
the same (twenty in the United States versus sixteen cases in Brazil).122 This
occurs, despite the U.S. Constitution being largely the same document, since
1787.123

           In the United States, annexation varies across states.124 Race and class
biases are present in annexation, reflecting seminal conflicts relating to
property rights and redistribution.125 The core of U.S.S.C. decisions referring to
annexation address questions of exclusion. In this sense, the cases in our
dataset corroborate the view that boundaries of a municipality carry a
remarkable exclusionary function, which determines who is entitled to
participate in the redistribution of the resources in a given community.126

           In Brazil, however, demographic exclusions occur on account of a lack
of resources. This research corroborates previous claims for the general
creation     of   a   national     level   policy     in   Brazil.   The       current         chaos         of
decentralization enhances inequalities among Brazilian regions, neglecting the
poorest segments of society.127 Debates pertinent to local interests tend to be
far from the citizen with a different experience than traditional portrays
typical of the United States.

           Comparative constitutional law is concerned with the existence and
scope of Bill of Rights provisions.128 As the U.S.S.C. decisions demonstrate,
those provisions are necessary for the protection of rights and the rule of law.
Our dataset indicates how the issues judged by the U.S.S.C. evolved. Initially,
the Court was mainly focused on patrimonial disputes. After the enactment of

121
    For a complete list of the cases, year, and main issues discussed by the U.S.S.C. and the S.T.F.,
see tbl.1 and 2, respectively.
122
    Chart 1 illustrates the comparison between the decisions of the U.S.S.C. (from 1870 until 2014)
and the Brazilian S.T.F. (from 1988, when the Constitution inaugurated the inclusion of
municipalities in the federal pact, until 2014).
123
    For arguments claiming that the interpretation of the U.S.S.C. amounted to a complete new
Constitution despite the text remaining the same during the New Deal, see ACKERMAN, supra note
33, at 58-80.
124
    See Robert D. Zeinemann, Overlooked Linkages Between Municipal Incorporation and Annexation
Laws: An In-depth Look at Wisconsin’s Experience, 39 URB. LAW. 257, 311 (2007).
125
    See Tyson, supra note 2, at 519.
126
     Id.
127
    See SAMUELS, supra note 17, at 96.
128
     See SUJIT CHOUDHRY, Bridging Comparative Politics and Comparative Constitutional Law, in
CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES 9-13 (2008).




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the Voting Registration Act, of 1965, its docket radically changed. The U.S.S.C.
became particularly concerned with asserting the effectiveness of federal
rights. The docket also shows different actors from previous years. This
occurred because the states mentioned in the Act became an object of intense
litigation. Regarding the protection of rights, research findings demonstrate
that this protection has increased after World War II, as the importance of
constitutional adjudication increased to protect minorities. 129

         The S.T.F. decisions protect the rule of law, but do not prove to be
supportive of any fundamental rights protection. This is different from what
was expected, because the S.T.F. carried a long tradition of fundamental rights
protection.130 After two constitutional amendments and radical modifications in
the case law of the S.T.F., Brazil remains in a grey area, in practice and legal
matters. Therefore, municipalities were not necessarily more empowered
simply by virtue of their inclusion in the Brazilian Constitution. In this sense,
the federal pact chosen was not capable of continuing as initially planned.
Despite warnings by the S.T.F., local actors are, de facto, annexing cities
without the existence of federal complementary law.131

         Importantly, this study’s results validate Shapiro and Stone Sweet’s
hypothesis of the expansionary role of courts for protecting rights. 132 The
U.S.S.C. and the S.T.F. expanded their roles from the traditional and very
restrictive separation of powers doctrine. Hence, both courts shifted the lines
from what may be regarded previously as a clear separation. The U.S.S.C.
accomplished this task by reviewing its initial interpretation of the Fourteenth

129
     See CHARLES R. EPP, THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS AND SUPREME COURTS IN
COMPARATIVE PERSPECTIVE 38-39 (1998) (noting that the increased presence of cases involving the
due process clause and equality began 1918 (after the World War I), but the U.S.S.C. rejected such
claims until the 1960s).
130
    Historically, the S.T.F. remains protective of fundamental rights, including the time of the
military ruling. See MATTHEW M. TAYLOR, JUDGING POLICY: COURTS AND POLICY REFORM IN DEMOCRATIC
BRAZIL 34-35 (2008).
131
    Research findings are consistent with the balanced role played by the S.T.F. in the transition to
democracy. See e.g. DIANA KAPISZEWSKI, HIGH COURTS AND ECONOMIC GOVERNANCE IN ARGENTINA AND
BRAZIL 207 (2012).
132

         [T]he more judges consider effective rights protection to be their
         constitutional duty. . . . the less likely judicial review will conform to, or be
         contained by, separation of powers doctrines. . . . in systems in which the
         supremacy of the constitutional law within the general hierarchy of norms is
         defended by a authority, all separation of powers notions are contingent
         because they are secondary to, rather than constitutive of, judicial function.
MARTIN SHAPIRO & ALEC STONE SWEET, ON LAW, POLITICS & JUDICIALIZATION 364 (2011).




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Amendment, extending the prohibition of discrimination to states, and by
upholding the constitutionality of the Voting Rights Act at least for several
years until the Shelby decision (2013). The S.T.F., on its turn and in a bold
movement, declared the unconstitutionality of the Congressional enactment of
the federal complementary law, defining the general requirements for the
annexation of municipalities.



      4.2. INSIGHTS BASED ON CONSTITUTIONAL DESIGN

Constitutional clauses determining competences, powers, and structures of the
government are perceived with less enthusiasm than provisions of rights. 133
The role of the U.S.S.C. as a safeguard of federalism was questioned recently.134
Federalism and judicial review are often named along the structural provisions
of the U.S. Constitution that have been very influential abroad. 135 This research
considers the different federal experiences of the United States and Brazil.

          Since its inception in the U.S. constitutional scheme, federalism
remains a complex concept.136 Federalism is traditionally defined as an
arrangement in which a written constitution expressly determines powers of
the central and regional spheres of governments, with direct elections for
national and regional governments. Additionally, in this way, distinguished
spheres of government act independently from each other, and a high court
remains independent to decide on matters of conflict among them. 137
Federalism is, therefore, a response to concrete political tensions. It is often
addressed among constitutional design choices that impact power sharing,
including the participation of representatives of the relevant groups of society




133
    See Günter Frankenberg, Comparing Constitutions, 4 INT’L. J. CONSTIT. L. 439, 455-56 (2006)
(emphasizing the reduced appeal of constitutional provisions about political organization as an
object of comparative constitutional law).
134
    See Carol S. Weissert, Beyond Marble Cakes and Picket Fences: What U.S. Federalism Scholars can Learn
from Comparative Work, 73 J. POLIT. 965, 968 (2011) (acknowledging the existence of the debate in
the U.S. constitutional scheme).
135
    See David S. Law & Mila Versteeg, The Declining Influence of the United States Constitution, 87 N.Y.U.
L. REV. 762, 785 (2012).
136
    See G. EDWARD WHITE, THE AMERICAN JUDICIAL TRADITION: PROFILES OF LEADING AMERICAN JUDGES 19
(2006).
137
    See For the specific definition of classical federalism, see CHOUDHRY & HUME, supra note 10, at
357.




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in political decision-making.138 The absence of constitutional provisions
pertaining to local governments was recognized as a failure of constitutional
design relating to future matters.139

         In the United States, cities only have the powers that were delegated to
them by states and that were not limited by judicial interpretation. 140
Municipalities’ power to tax is significantly constrained by state rules and the
Commerce Clause.141 In this sense, the choice of locating cities as subordinated
to states was adopted in view of the federal system. 142 It was based on an
assumption that, had it been different, the unified political system under the
Constitution would have been jeopardized.143

         As previously explained, annexation in the United States is defined by
state laws. According to principles of constitutional law, Congress may act
when (implied or express) authorization exists in the Constitution. 144 In this
context, powers not granted to the national government are reserved for the
states. The states did not grant the federal government authority to modify
municipal boundaries, and state legislatures may directly alter municipal
boundaries or establish procedures that local governments must obey when
altering them.145 As such, there is no uniform national law regulating
annexation, illustrating the self-determination of the states. Based on evidence
provided by this research, general-purpose local governments in the United


138
     See Arend Lijphart, Constitutional Design for Divided Societies, 15 J. DEMOCR. 96, 97 (2004)
(articulating the concept of power sharing).
139
    See Hirschl, supra note 12, at 1348. In addition, article V of the U.S. Constitution, with its rigidity
towards amendments, was perceived as greatly condescending to state powers while being too
hostile to local interests. Aziz Z. Huq, The Function of Article V, 162 U. PA. L. REV. 1165, 1187 (2014).
140
    See Gerald Frug, The City as a Legal Concept, 93 HARV. L. REV. 1059, 1062 (1980).
141
    On the general constraints imposed by state powers and by the Commerce Clause, see, id., at
1064 (emphasizing that the abilities of cities to borrow money suffered even stronger limitations).
The author remarks that even in “home rule” states (i.e., where powers of purely local matter
would be granted to cities), state law considers cities as “creatures of the state”. Id. at 1063
(quoting Hunter v. City of Pittsburgh, 207 U.S. 161 (1907)).
142
    Id. at 1065–67 (outlining the consequences of locating municipalities as forbidden to exercises
of general governmental power, while not capable of freedom granted to private corporations).
143
    Id. at 1106. See also, ROBERT A. DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? 12 (2001)
(noting that the states would encompass the federation (and that the unitary government was
excluded, due to historical experiences present at the time of the Framers), and contending that
the only question at the Convention in that regard was how much autonomy to confer to the
central government).
144
    See CHEMERINSKY, supra note 56, at 234.
145
    See GREY LINDSEY, Annexation Activity and Policy in the US, in REDRAWING LOCAL GOVERNMENT
BOUNDARIES: AND INTERNATIONAL STUDY OF POLITICS, PROCEDURES AND DECISIONS 56 (John Meligrana ed.,
2004).




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States are more powerful than those in Brazil. This claim is supported by the
fact that United States local governments are capable of defining their own
boundary limits in general, without interference from the federal union. States
in Brazil have a mitigated version of self-determination, being subject to a
uniform national procedure.

         Importantly, the Brazilian Constitution explicitly determines that the
S.T.F. has the duty to safeguard the Constitution, and federalism is listed
among the so-called constitutional immutable clauses. 146 In Brazil, local
governments were conceived as federal actors, with much financial autonomy
being granted. Hence, there is an interest in creating and annexing
municipalities in order to receive such revenues but not necessarily in
excluding particular citizens, as it has occurred in annexations in the United
States.147

         Urbanization and the politics of the military ruling are relevant factors
for explaining the Brazilian departure of comparative constitutional design,
with Brazilians writing their own peculiar federalism pact. 148 Brazil’s increased
number of municipalities supports the understanding that in federal systems
where units are heterogeneous, politicians have higher incentives to cooperate
with each other at the local spheres, before working on the central level. 149 This
is particularly relevant in the Brazilian context, where municipalities have
weak ties with their own state.150 In addition, municipalities had secured
financial autonomy and revenue levies in an unprecedented fashion. 151 The


146
    CONSTITUIÇÃO FEDERAL [C.F.] c. I, art. 60, para. 4; art. 102 (Braz.).
147
    See SAMUELS, supra note 17, at 98.
148
    Brazil borrowed several constitutional provisions from the U.S. experience, such as: the
nomination of S.T.F. justices, the residual powers of states if the Constitution is silent,
mechanisms authorizing judicial review on the state level, among others. Hence, the fact that
Brazil decided not to borrow the absence of local governments provisions indicate the degree to
which local actors wielded power at the time. For explanations on why borrowing may not occur
due to political factors, see Lee Epstein & Jack Knight, Constitutional Borrowing and Nonborrowing, 1
I-CON, INT’L. J. CONSTIT. L. 196, 200 (2003).
149
     See e.g. HOROWITZ, supra note 95, at 25 (arguing such advantage for federal systems that are
heterogeneous).
150
    LUIZ CESAR DE QUEIROZ RIBEIRO & SOL GARSON BRAULE PINTO, LOCAL GOVERNMENT AND METROPOLITAN
REGIONS IN FEDERAL SYSTEMS: A GLOBAL DESIGN ON FEDERALISM 75 (Nico Steytler ed., 6th ed. 2006).
151
    The Brazilian Constitution established a complex system of revenues for municipalities.
CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION] art. 156 (Braz.) (outlining exclusive municipal taxes);
art. 158 (determines municipal revenue sharing); art. 159 (supplements mandatory transfers from
federal union); art. 153, para. 5 (secures more revenues for municipalities). The current
Constitution significantly reduced federal revenues from the union, and that change of revenues
toward states and municipalities was not accompanied by administrative responsibilities, which




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decentralization implemented by the constitutional text, with municipal
revenue sharing, brought significance to the “elevation of municipalities to
separate federal status” under the Constitution of 1988.152 The Brazilian
experience is remarkably different from the U.S. design. The Constitution of
1988 is the only one to expressly locate municipalities accompanying the
federal union and states as members of the federation. 153 Hence, the residual
powers of the Brazilian states are defined as those not granted to the federal
union as well as the powers that were not conferred to municipalities. 154

         In this scenario, once the original scheme proved inadequate, it led to a
centralization of the general rules in the federal sphere, through a national
complementary law. Albeit, annexation shall occur through state laws in
accordance with the general provisions to be determined by such federal
complementary law. Moreover, considering the analysis of federalism after the
Constitutional Amendment 15/1996, states lost power to the union.It is
noteworthy that annexation is still addressed in state law, but those laws must
be subordinated to a general federal complementary law that does not exist –
even after more than eighteen years of the edition of Constitutional
Amendment 15.

         Nevertheless, there are similarities between both Supreme Courts on
the matter of inter-branch relations. The U.S.S.C. and the S.T.F. declared that it
is necessary for the U.S. and Brazilian Congresses, respectively, to update or
enact a particular legislative act. 155 The S.T.F. was considerably patient and
deferent to Congress, waiting more than eleven years to declare the inertia
deliberandi of Congress.156 This fact also proves the strength of local politicians
who benefitted personally from the absence of a national scheme in Brazil. The



contributed to fiscal crisis. KURT WEYLAND, The Brazilian State in the New Democracy, in DEMOCRATIC
BRAZIL 42 (Peter R. Kingstone & Timothy J. Power eds., 2000).
152
     See KENT EATON, Decentralization and Federalism, in ROUTLEDGE HANDBOOK OF LATIN AMERICAN
POLITICS 42 (Peter Kingstone & Deborah J. Yashar eds., 2012).
153
    See Hirschl, supra note 12, at 1348 (observed the Brazilian Constitution and its modern
allocation of powers to local governments).
154
     CONSTITUIÇÃO FEDERAL [C.F.] art. 25 (Braz.).
155
    For a discussion of the U.S.S.C.: see Part II of this paper, when the Shelby Court emphasized that
the U.S.S.C. determined that Congress did not act – or did not consider – despite previous
warnings by the U.S.S.C. in a decision dating to 2009. The decision stated the necessity of an
updated formula of section two. It took forty years for the U.S.S.C. to require an updated formula
and four years to judge Congress delayed.
156
    For more information, see discussion in Part III of this paper.




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recently ousted President of Brazil vetoed a law that her own cabinet drafted.
Hence, local political forces are very powerful in Brazil. In contrast, local
governments are not, because they remain in an uncertain legal situation that
denies the minimum standards for their own existence. In Brazil, local spheres
are not embedded in the democratic experience traditionally associated with
American localism, where local governments are perceived as the core of U.S.
citizenship.157

          Accordingly, the absence of provisions for local governments in the U.S
Constitution can generally be considered as a successful experience. Findings
of this study corroborate the idea that constitutional silence on issues that
might be controversial at the time of the writing carries a positive impact in
the future.158 The proper relationship between state and cities was, in fact, a
disputed political issue.159 In this sense, the lack of provisions with regard to
local matters was the preferred solution, to the extent that it would increase
the chances of success in the future.160 It would be naïve to argue that local
governments should have been in the Constitution since its inception, because
it would jeopardize the strength of federal union vis-à-vis states and local
forces.

          This study’s findings are consistent with the understanding that
constitutional       amendments          are    not     aimed      at     modifications               of      the

157
    Tocqueville remarked, in 1835, how local government was key for the principle of popular
sovereignty in America. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 69 (1835) (“In the town as
elsewhere the people are the source of all social power, but nowhere do they exercise their power
more directly.”). More recently, disenchantment with this view emerged.
            City discretion of any kind evokes images of corruption, patronage, and even
            foolishness. This sense of necessity and desirability has made local
            powerlessness part of our definition of modern society, so that
            decentralization of power appears to be a nostalgic memory of an era gone
            forever or a dream of romantics who fail to understand the world as it really
            is.
See Frug, supra note 133, t 1067.
158
    For a discussion on incomplete theorization, see SUNSTEIN, supra note 93, at 58.
(Most of their virtues involve the constructive uses of silence. . . . Especially in a diverse society,
silence – on something that may prove false, obtuse, or excessively contentious – can help
minimize conflict, allow the present to learn from the future and save a great deal of time and
expense. What is said and resolved is no more important than what is left out.)
159
     See Frug, supra note 133, at 1105–07 (pointing out the different conceptions of local
government, namely the Jeffersonian view of local government as “elementary republic,” as
opposed to the skeptic Madisonian view). For the latter, see discussions by Madison on Federalists
10 and 51 regarding the advantages of the union over states to control factions, and how the
federal system encapsulates a dual protection for the people. ALEXANDER HAMILTON, JOHN JAY, JAMES
MADISON, THE FEDERALIST PAPERS 320-22 (Clinton Rossiter ed., 1999).
160
    See Walter F. Murphy, Theories of Constitutional Design: Designing a Constitution: of Architects and
Builders, 87 TEX. L. REV. 1303-37 (2009).




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constitutional text, but at authorizing legislative and popular actors with an
increased mechanism to pressure the interpretation of the highest court
regarding that design.161 Amendment procedures are tied to questions of
judicial interpretation. The more difficult it is to amend a constitution, the
higher the pressure on constitutional courts to decide issues addressing
challenges posed by new conditions.162

         The constitutional design adopted in Brazil authorized constitutional
adaptation to the extent that the amendments aimed at eliminating the
existence of several municipalities created or annexed for political interests
only, without any concern for public needs. The amendments, however,
increased      litigation.    The rate        of   annexation       cases involving                Brazilian
municipalities jeopardizes economic growth, due to a lack of certainty
regarding formation or modification. Accordingly, the design of the Brazilian
Constitution cannot be deemed as successful, considering the litigation
involving the annexation of local governments.

         It has been argued that the impact of constitutional law in Latin
America is different than in the United States due to the ease by which
constitutional provisions can be ignored or changed.163 The existence of two
constitutional amendments about annexation and their current undefined legal
situation, most unfortunately, prove that this remains the case. The decisions
of the S.T.F. regarding annexations, however, indicate that there are grounds
for optimism. The Court has been protecting the Constitution, striking a
balance regarding the principle of separation of powers. As for the
amendments, they ultimately contributed to the endurance of the democratic
pact. The changes implemented by the amendments aimed at curbing the
abuses that occurred when the constitutional requirement was merely one of
state complementary law, instead of a national complementary law.

         Finally,     historical     reasons       and   the    related     differences            of     their
democratic experiences explain the two countries’ distinct choices of
constitutional design and the function served by each Supreme Court. It is clear

161
    See Rosalind Dixon, Constitutional Amendment Rules: a Comparative Perspective, in COMPARATIVE
CONSTITUTIONAL LAW 96, 98-99 (Tom Ginsburg & Rosalind Dixon eds., 2011).
162
     See TUSHNET, supra note 8, at 1239.
163
    See Miguel Schor, Constitutionalism Through the Looking Glass of Latin America, 41 TEX. INT’L L.J. 1,
3-6 (2006).




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that Brazil can no longer contend that its own local governments are among
the most empowered, if the rules for their own boundaries are not defined
completely. In this direction, this analysis highlights potential reasons why
there was not a full transplant of the U.S. federalism to the constitutional pact
established in 1988. Local elites in Brazil were powerful enough to reject the
general rule of the global constitutional market regarding the existence of two
level spheres in federal systems (not three, as the Constitution of 1988
created).164 Brazilians currently pay a high price for such innovation, despite
the efforts of the S.T.F. in mitigating abuse.




         5. CONCLUSION

This research investigates the decisions about annexation made by the U.S.
Supreme Court and its Brazilian counterpart, the S.T.F., during the tenure of
each current Constitution. This research discusses the impact of constitutional
provisions concerning local governments on two different perspectives, as
follows: protection of rights and constitutional design.

         The     decisions      of   both     Supreme       Courts     demonstrate               significant
differences between their case law in subject matters of annexation. The
U.S.S.C. initial decisions were about police powers and contractual claims, with
significant deference to state powers. As the docket of the Court evolved over
time, protection of fundamental rights, especially equality in light of the
Voting Rights Act, became the bulk of litigation. Thus, the original unlimited
conception of state power was reviewed in light of the national protection
granted to fundamental rights. The discussed findings indicated that it is only
recently that the U.S.S.C. became more involved in the litigation of federal
rights in the context of annexation. After all, the Court has been acting in a
careful and self-constrained fashion, being vigilant of its broad interpretation
of the constitutional pact that grants states significant powers. Because local


164
   See also, Günter Frankenberg, Constitutional Transfer: the IKEA Theory Revisited, 8 INT’L. J. CONSTIT.
L. 563, 570-76 (2010) (defining the concept of a global constitutional market and the importance
of understanding the reasons why particular provisions are transferred differently to other
jurisdictions in the field of Comparative Law).




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governments are still perceived as a qualified extension of states, they are
remarkably powerful, albeit the absence of reserved constitutional provisions
about them.

In sharp contrast with the U.S. scenario, all of the cases decided by the S.T.F.
relate to formalities and constitutional procedures, with no single case
protecting fundamental rights. In this way, the results of the comparison with
the U.S.S.C. are counterintuitive, because one would expect the S.T.F. to be
more involved in litigation regarding the protection of fundamental rights.
This would be the case, if nothing else, due to the detailed provisions of the
Brazilian Constitution, which generally confer many rights, increasing the
chances of litigation.

       In addition, local governments in Brazil did not turn to higher
democratic spheres nationally, and they are not more inclusive of the less
wealthy population. The current economical deficit of municipalities proves
that, in Brazil, the exclusion of certain demographics of essential services may
be accounted for by the lack of resources that this same population should be
granted access. The decisions of the S.T.F. aimed to balance the system
established by the Constitution of 1988. Nevertheless, the Court has its own
limitations with regard to other branches of power and influential local forces.
Despite the decisions of the S.T.F., local governments are, de facto, annexing
each other without the existence of the federal complementary law. This is a
clear violation of the rule of law, and it generates great uncertainty as for the
legal regime applicable to those municipalities that are changing their
boundaries. It also produces unnecessary litigation, which is a considerable
burden on the allocation of resources and budget matters.

       This research uses annexation as a proxy for local powers, and it does
not argue that one constitutional design is necessarily superior to the other.
The silence of the U.S. Constitution and the recent inclusion of municipalities
as federal actors in Brazil are considered as choices to reach the best feasible
option at the time of constitutional writing. In that view, as any controversial
constitutional choice, it was a product of compromise. Therefore, this research
maintains that the absence of provisions about local governments in the U.S.
Constitution can be generally viewed as successful, in light of the current




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constitutional design literature about the lack of provisions relating to
controversial matters at the time of the convention.

After two constitutional amendments and recent decisions of the S.T.F.
rendering unconstitutional the current inaction of Congress in approving the
required federal complementary law, no evidence was found to support the
proposition that the inclusion of municipalities as federal actors is necessarily
superior to the current comparative trend that uses the dual spheres system of
the U.S. federalism as a paradigm. The findings do not validate propositions
considering the constitutional design after 1988 as a failure, either. This is so
because the S.T.F. tried to minimize abuses referring to annexation in different
cases. Further, the current Constitution has less than thirty years of existence.
This timeframe is considerably short when compared with the more than 200
years of the U.S. Constitution. Therefore, our findings do not support that the
U.S. system, i.e., the absence of provisions of local governments, should be
transplanted to the Brazilian Constitution.

            In conclusion, as it is often the case with legal transplants, there are
different foundations upon which the texts rest. The people of the United
States are largely concerned with their local governments, with this sphere of
power traditionally viewed as a manifestation of their democracy. Brazil is
different. On the one hand, Brazil has been an exploit colony of Portugal,
survived dictators and decades of military rulings, which are examples of a
centralization of powers in the federal sphere. On the other hand, the
democratic Constitution of 1988 innovated in the sense of having local
governments explicitly named as federal actors, adding complexity to the
balance of federal powers. Constitutional design is a process in which “ non-
ideational obstacles are strong, . . . . the interests affected are non uniform, and
retrogression is possible after adoption.”165 The comparison about the
reasoning of U.S. Supreme Court and Brazilian Supreme Court provides reasons
to be optimistic about the future, to the extent that both Supreme Courts have
been fierce guardians of the rule of law and related constitutional values.




165
      HOROWITZ, supra note 95, at 16.




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Table 1: Final List of Annexation Cases by the U.S.S.C.

 Final List of Cases                                          Year        Issue

 Virginia v. West Virginia, 78 U.S. 39                        1870        Annexation of counties in Virginia

 Slaughter-House Cases, 83 U.S. 36                            1872        Police powers of the state

 Comm’rs of Laramie v. Comm’rs of Albany, 92 U.S. 307         1875        County reduction and debt payment

 Mt. Pleasant v. Beckwith, 100 U.S. 514                       1879        Bonds and extinction municipality

 Mobile v. Watson, 116 U.S. 289                               1886        City’s legal successor

 Forsyth v. Hammond, 166 U.S. 06                              1897        Tax and county comm. Board ann.

 Holden v. Hardy, 169 U.S. 366                                1898        Utah police powers

 McCain v. Des Moines, 174 U.S. 168                           1899        Annexation under color of law

 Clark v. Kansas City, 176 U.S. 114                           1900        Individuals and corp. annexation
                                                                          land

 Worcester v. Worcester Consol. St. Ry. Co., 196 U.S. 539     1905        State interfering with municipality

 Blair v. City of Chicago, 201 U.S. 400                       1906        Right of the city to grant license

 Hunter v. Pittsburgh, 207 U.S. 161                           1907        Consolidation of two cities and taxes

 Detroit United Ry. v. Detroit, 229 U.S. 39                   1913        Contractual rights

 Detroit United Ry. v. Michigan, 242 U.S. 238                 1916        City fares and Contract Clause

 Howard v. Comm’rs of Sinking Fund, 344 U.S. 624              1953        Annexation of federal area by munic.

 Gomillion v. Lightfoot, 364 U.S. 339                         1960        State limited powers: disenfranchise

 Perkins v. Matthews, 400 U.S. 379                            1971        Voting Rights Act

 Mahan v. Howell, 410 U.S. 315                                1973        Virginia’s reapportionment statute

 Richmond v. United States, 422 U.S. 358                      1975        Voting Rights Act

 United Jewish Orgs., Inc. v. Carey, 430 U.S. 144             1977        Voting Rights Act

 Town of Lockport v. Citizens for Cmty. Action at the Local   1977        Equal Protection of Fourteenth Am.
 Level, Inc., 430 U.S. 259

 Holt Civic Club v. Tuscaloosa, 439 U.S. 60                   1978        State police powers

 City of Rome v. United States, 446 U.S. 156                  1980        Voting Rights Act

 Port Arthur v. United States, 459 U.S. 159                   1982        Voting Rights Act

 Pleasant Grove v. United States, 479 U.S. 462                1987        Voting Rights Act

 Presley v. Etowah Cty. Comm’n, 502 U.S. 491                  1992        Voting Rights Act

 Shaw v. Reno, 509 U.S. 630                                   1993        Voting Rights Act

 Holder v. Hall, 512 U.S. 874                                 1994        Voting Rights Act

 Johnson v. De Grandy, 512 U.S. 997                           1994        Voting Rights Act




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 FTC v. Phoebe Putney Health Sys., 133 S. Ct. 1003   2013        State legislative power and the city

 Shelby Cty. v. Holder, 133 S. Ct. 2612              2013        Voting Rights Act as unconstitutional



Table 2: Final decisions of the S.T.F.

 Final list of cases of S.T.F. decisions             Year        Issue

 ADI 1372 MC/ RJ                                     1995        Plebiscite

 ADI 1373 MC/ PR                                     1995        Plebiscite

 ADI 2381 MC/ RS                                     2001        Suspension/perennial clause

 ADI 2632 MC/BA                                      2002        Condition fed. complementary law

 ADI 2702/PA                                         2003        Condition fed. complementary law

 ADI 2632/BA                                         2004        Condition fed. complementary law

 ADI 2994/BA                                         2004        Condition fed. complementary law

 ADI 3149/SC                                         2004        Condition fed. complementary law

 ADI 3615/ PB                                        2006        Condition fed. complementary law

 ADI 2240/BA                                         2007        Change of S.T.F.’s case law

 ADI 3489/SC                                         2007        Change S.T.F.’s case law

 ADI 3316/MT                                         2007        Change S.T.F.’s case law

 ADI 3682/MT                                         2007        Change S.T.F.’s case law

 ADI 3689/PA                                         2007        Reiterate change in S.T.F.’s case law

 ADI 2395/DF                                         2007        Denial of federalism perennial clause

 ADI 4992MC/RO                                       2013        Denial of annexation based on CA 57




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Picture no. 1: Comparison of the decisions of the U.S.S.C. and the S.T.F.: Number of lawsuits from
1870 until February, 2014 involving annexation of local governments




Picture no. 2: Decisions of the S.T.F.: Number of lawsuits from 1988 until February, 2014




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