The application of balancing in the administrative decision regarding the appointments to commissioned public positions

This article aims to analyse the discretionary decisions of public managers related to appointments to commissioned public positions in Brazil. The study highlights the constitutional framework that allows free appointment without, however, ceasing to demand compliance with principles such as legality, morality, and efficiency. Based on Robert Alexy’s theory of balancing, it is stated that administrative discretion must always be exercised under the parameters of adequacy, necessity, and proportionality. Following this perspective, the appointment process must necessarily avoid abuses such as nepotism, ensure transparency, and prioritize public interest. Ultimately, this work emphasizes that discretionary power should not be considered as freedom, as it is rather the practice of a legal duty to achieve optimal public administration aligned with constitutional principles.