OPERATIONALIZING COOPERATIVE FEDERALISM

AN INSTITUTIONAL FRAMEWORK FOR DATA-DRIVEN STRUCTURED COORDINATION

Abstract

This exploratory article diagnoses an irreducible trilemma in cooperative federalism under the 1988 Brazilian Constitution: autonomy, symmetry, and coherence cannot be simultaneously maximized. It reveals that the Brazilian Supreme Court operates an implicit bifurcation in decisions regarding subnational innovations, alternating between procedural openness and formal rigidity without explicit criteria justifying this variation. The article proposes operationalizing this bifurcation through three complementary layers: explicit justification standards (legitimacy, proportionality, transparency) structured by continuous data-driven analytic infrastructure, offering objective comparative basis and reducing legal uncertainty; permanent protection of fundamental rights through proactive detection systems that identify when procedural innovations compromise essential access; decentralized coordination arenas (reformed CONSAD, federative innovation chamber, fundamental rights commission) operating before litigation with shared data support. The central epistemological shift is that data infrastructure allows separating legitimate value disagreements from informational asymmetry problems, enabling federal conflicts to occur with increased legitimacy even as political divergences persist. The article proposes repositioning the Supreme Court in second-order control: judging primarily the procedural quality of subnational decisions and, subsidiarily, the substantive merits when processes are insufficient. Shared data equalizes technical asymmetries: small municipalities access identical infrastructure to major metropolitan areas. While acknowledging that complete operationalization remains incomplete, the article structures a collaborative research agenda in five research dimensions: jurisprudential consolidation of justification standards; operationalization of the bifurcation between non-negotiable redistributive minimums and renegotiable procedural norms with technical indicators; empirical evaluation of institutional innovations through quasi-experimental design; institutional design of negotiation arenas with prototyping; development of continuous monitoring systems.