Mexican constitutionalism after presidencialismo

Stephen Zamora, José Ramón Cossío, Mexican constitutionalism after presidencialismo, International Journal of Constitutional Law, Volume 4, Issue 2, April 2006, Pages 411–437, https://doi.org/10.1093/icon/mol011

Abstract

This article discusses the fundamental changes that have occurred during the past decade in institutions central to Mexico's constitutional order. The demise of a single-party democracy not only created a new political order; it generated, as well, fundamental changes in Mexican constitutionalism, with formal constitutional and legal reforms playing an important but secondary role in revising Mexico's constitutional structure. The authoritarian presidencialismo that dominated Mexico's political culture throughout much of the twentieth century has been replaced by a disempowered presidency and a divided Congress, with a revamped Mexican Supreme Court—long a minor factor in Mexican constitutional politics—assuming a key role in the development of the law. In discussing these changes, the article focuses on three primary areas of the new constitutionalism: separation of powers and the new role of the Mexican Congress; the new role of the Mexican Supreme Court as arbiter between Congress and the presidency; and changes in Mexican federalism. The political instability of multiparty politics in Mexico will place further strains on Mexican constitutionalism in the future and will require careful responses from those institutions—especially the Supreme Court—that oversee the development of law in Mexico.

With the election of President Vicente Fox in 2000, Mexico ushered in a new era of constitutionalism. The Mexican Constitution of 1917 is still in force, but the recent, historic election of an opposition presidential candidate has transformed the operation of basic institutions within the constitutional order. The foundation of this new era was laid earlier, beginning with electoral changes in the 1980s and continuing with electoral and judicial reforms in the 1990s. 1 New political realities in Mexico are responsible for Mexico's new constitutional order, although constitutional and legal reforms have also contributed. By “new constitutional order,” we mean the revised modus operandi of the legislative, judicial, and executive branches of government in Mexico and the changing balance of power between the federal and state governments. The new politics of Mexico have removed much of the disjunction that previously existed between the Mexican Constitution as written and the Mexican Constitution as applied under conditions of an authoritarian government, or presidencialismo. Presidentialism is unlikely to reappear any time soon, and, in the meantime, the executive, legislative, and judicial powers are adjusting to the new constitutional order.

On the transformation of the electoral process in Mexico, see generally S tephen Z amora , J osé R amón C ossío , L eonel P ereznieto , J osé R oldan & D avid L opez , M exican L aw 162–178 (Oxford Univ. Press, 2004) [hereinafter M exican L aw ]. On Mexican judicial reforms, see id. at 186–228, 257–286.

This essay will focus on the transformations in Mexican constitutionalism that have occurred since the judicial reforms of 1994, highlighting certain political and constitutional changes that we consider fundamental. Some of these changes are due to new constitutional interpretations rendered by the Mexican federal courts and, in particular, by the Mexican Supreme Court. To characterize these changes as the inauguration of a new era in Mexican constitutionalism is not an exaggeration. Throughout the twentieth century, the text of the Mexican Constitution of 1917 was far from static. As often noted, the Mexican Constitution has been amended hundreds of times since its adoption in 1917, 2 while the governmental institutions that make constitutional doctrine operative underwent scant evolution. Rarely has a country's constitution been amended so many times to so little fundamental effect; despite constant alterations, the continued predominance of executive power in the hands of a single political party—the Institutional Revolutionary Party (PRI)—never changed. By the 1980s, single-party democracy began to unravel, rent by its own inefficiency. 3 The collapse of PRI-style presidencialismo, even without accompanying constitutional amendments, was enough to usher in a new era of constitutionalism in Mexico. However, even in this new era, vestiges of institutional structures created by the PRI during its ascendancy (labor union alliances, for example, or agrarian associations) continue to operate in Mexico. These sectors, forged in authoritarian, corporatist politics, are being forced to come to terms with a new legal order based on increased adherence to the rule of law.

The actual number of amendments depends on how one counts, since on many occasions, a single legislative act would result in the amendment of numerous articles of the Constitution. See R. Mejía, The Amendment Process in the Mexican Constitution (Monograph; Instituto Tecnólogico Autónomo de México [ITAM], September 2003).

For a discussion of the forces that weakened the PRI's hegemony, see Jorge A. Schiavon, Bicameralismo, configuración institucional y partidaria en América Latina: Un modelo de puntos y jugadores con veto para explicar la provisión de políticas públicas [Bicameralism, Institutional Structure and the Party System in Latin America: A points-and-players model to explain the provisions of public policy], 44 F oro I nternacional 126 (2004).

In discussing the most fundamental changes in the constitutional landscape, we will focus on three subjects that define the new era: (a) separation of powers and the new role of the Mexican Congress; (b) the new role of the Mexican Supreme Court; and (c) changes in Mexican federalism. We will not address changes in what might be called the “social constitution,” which purports to establish standards of social welfare (right to work, equal protection, right to health and education). This area remains relatively undeveloped and represents a major challenge for the future political leadership of Mexico.

1. Separation of powers and the new role of the Mexican Congress

The Mexican political system has had to learn, almost instantaneously, the complex mechanisms of divided government… . 4

Juan Molinar Horcasitas & Mony de Swaan Addati, Movimientos Graduales y Pendulares: La Transición Democrática y la Nueva Correlación de Fuerzas [Movements Gradual and Pendular: The Democratic Transition and the New Correlation of Forces], in R elaciones entre gobierno y C ongreso : memoria del VII C ongreso I beramericano de D erecho C onstitucional 362, 370 (Cecilia Mora-Donatto ed., Universidad Nacional Autónoma de México 2002).

The Mexican Constitution of 1917, like many of its Latin American counterparts, borrowed its governmental design from the United States Constitution, with distinct powers assigned to the legislative, executive, and judicial branches, although the interpretation of the Constitution, and the means used to make constitutional norms operative, depended largely on a European (especially French) model. The doctrine of separation of powers, considered essential to the U.S. constitutional framework, was maintained in theory and form in Mexico throughout the twentieth century, though it was never truly followed in practice. With the establishment of the National Revolutionary Party (PNR, predecessor of the PRI) in 1929, successive Mexican presidents erected a monopoly of political power that centered ultimate control in the executive branch of the federal government. This monopoly was built on the domination of electoral politics, since the PRI controlled both houses of Congress, all state legislatures, and all state gubernatorial offices. 5 By the second half of the twentieth century, the Mexican Congress had largely become a rubber stamp for presidential legislative initiatives, including constitutional reforms. The Mexican judicial branch, captive to presidential control through the appointment process, never challenged the president on significant legal or constitutional issues. While the amparo procedure (discussed below) provided recourse against arbitrary acts of government officials, the effect of any ruling adverse to the government in an amparo action was (and still is) limited only to the parties to the case before the court. 6 Besides, federal courts never challenged other branches of government on policies that were considered important to the executive branch. This well-documented and well-analyzed system 7 was referred to as presidencialismo—or, in Mario Vargas Llosa's oft-cited phrase, as “the perfect dictatorship” 8 —and was considered the hallmark of Mexican constitutionalism in the twentieth century.

See generally J osé R amón C ossío , C ambio s ocial y cambio jurídico [S ocial C hange and J udicial C hange ] (Instituto Tecnológico Autónomo de México 2000).

See generally J osé R amón C ossío , L a teoría c onstitucional de la S uprema corte de J usticia [C onstitutional T heory of the S upreme C ourt of J ustice ], ch. 2 (Fontamara 2002).

See generally E liseo M endoza B errueto , E l presidencialismo mexicano : U na tradición ante la R eforma del E stado [M exican P residentialism : A T radition B efore the R eform of the S tate ] (2d ed., El Colegio de la Frontera Norte 1998); E liseo M endoza B errueto , E l presidencialismo mexicano : génesis de un sistema imperfecto [M exican P residentialism : G enesis of an I mperfect S ystem ] (El Colegio de la Frontera Norte 1996). The most widely cited study by traditional constitutional law scholars in Mexico is J orge C arpizo , E l P residencialismo M exicano [M exican P residentialism ] (Siglo XXI 1978). See also M exican L aw , supra note 1, at 144–162.

Vargas Llosa is quoted as having stated, in a roundtable discussion in Mexico City, that “[t]he perfect dictatorship is not communism, nor is it the Soviet Union, nor is it Fidel Castro: it is Mexico.” The quote is taken from Jorge Chabat, Mexico's Foreign Policy in 1990: Electoral Sovereignty and Integration with the United States, 33 J. I nter-am. S tud . & W orld A ff. 12 (1991).

Mexico has not been alone in experiencing problems accommodating the constitutional separation of powers to political realities. As Norman Dorsen and others have pointed out, “the U.S. is exceptional in its relatively benign experience with its familiar form of separation [of powers].” 9 This “benign experience” is due in part to the United States' unique colonial history and early independence, during which the colonies (original states) enjoyed a healthy measure of self-government. 10 A system of checks and balances to accommodate decentralization is not unnatural under these conditions. Mexico's legacy of Spanish colonial rule was quite the opposite; it required adherence to a centralized bureaucracy and legal order, which did not generate an ethos that respected difference and accommodation, either in public or religious life. (The Catholic Church, the Crown's partner in colonization, has never been a model of checks and balances.) The difference in historical backgrounds helps explain Bruce Ackerman's assertion that “the separation of powers has been one of America's most dangerous exports, especially south of the border… .” 11 As Ackerman points out, constrained by the limits of democracy, Latin American presidents have occasionally decided to disband legislatures and establish themselves as caudillos; on other occasions, the president and Congress would enter into a deadlock that prevented the adoption of much-needed legislation. 12

N orman D orsen et al. , C omparative C onstitutionalism 220 (West 2003).

Cf. Keith Rosenn, Federalism in the Americas in Comparative Perspective, 26 U. M iami I nter- A m. L. R ev. 1, 5–6 (1994).

Bruce Ackerman, The New Separation of Powers, 113 H arv . L. R ev . 633, 639 (2000) (citing Juan Linz).

Under Mexican democracy, the president never had to disband, Congress; as leader of the PRI, the president could always count on the votes needed to support his legislative mandate. 13 The PRI's lack of ideological focus produced a flexible authoritarianism that allowed it to respond opportunistically to political forces without undermining the basic power structure. With the guaranteed support of the Mexican Congress, the executive branch also became, de facto, the principal legislative organ, with the president as supreme legislator. Mexico's Constitution (article 71) grants the president the right to introduce bills in Congress, but with or without that right, until the election of Vicente Fox, most federal legislation originated in the executive branch, and bills were generally approved with little amendment. 14 This was true even late in the PRI's hegemony, during the 1990s, when the PRI's control of Congress was waning: from 1991 to 1997, the executive branch initiated four-fifths of all bills that were passed. 15 In 1997, during the middle of President Zedillo's administration (sexenio), the PRI lost control of the Cámara de Diputados for the first time since the party was created. During the last three years of his term, Zedillo was still able to introduce thirty-two bills, and twenty-eight of these were signed into law—but this represented only 20 percent of all legislation approved by Congress during this period. 16 The legislative power had begun to shift to Congress.

Despite party discipline in the PRI, the Mexican president did, on numerous occasions, use his veto power to veto legislation passed by Congress in order to maintain party discipline. See Luis Carlos Ugalde, Relaciones Ejecutivo-Legislativo en México: El Caso del Veto Presidencial [Executive-Legislative Relations in Mexico: The Case of the Presidential Veto], in R elaciones entre gobierno y C ongreso , supra note 4, at 645, 646.

M exican L aw , supra note 1, at 151–152, and authorities cited therein.

Benito Nacif, Congress Proposes and the President Disposes: The New Relationship between the Executive and Legislative Branches in Mexico, in M exican G overnance : F rom S ingle- P arty R ule to D ivided G overnment 1, 7 (Armand B. Peschard-Sverdrup & Sara R. Rioff eds., CSIS 2005).

Even in the last three years of his sexenio, President Zedillo at least could count on the support of the Senate, since the PRI still held a comfortable majority in that legislative body. By contrast, when Vicente Fox assumed the presidency, he faced unprecedented challenges in trying to adopt an ambitious legislative program. First, Fox was elected president by a plurality of votes, though with less than a majority of the popular vote (42.5 percent). By dividing the “opposition” vote with Cuauhtémoc Cárdenas (the opposition candidate of the Party of Democratic Revolution, or PRD), Fox was able to oust the PRI from the presidency; however, this did not mean that he had a mandate from or support of a broad coalition. Second, for the first time in Mexico's history, the political party headed by the president did not hold a majority in either the Senate or the Chamber of Deputies. Fox, therefore, was even less likely than President Zedillo to see his legislative agenda adopted in the last period of his presidency.

These, then, are some of the political transformations that have brought about the birth of the separation of powers in Mexico. Constitutional reforms may have helped engender the political changes, but without accompanying political changes, the rearrangement of the constitutional landscape would not have occurred. Thus, constitutional reforms regarding the appointment of federal judges, including Supreme Court justices, have combined with the loss of political hegemony to enhance the independence of the Mexican judiciary. The result is a much greater balance of power among the executive, legislative, and judicial branches. Under presidencialismo, the president decided the direction of all major policies. Under the new dispensation, each of the three branches of federal government participates in determining major legal and policy developments in Mexico. We will briefly discuss how this occurs through the legislative and judicial processes.

1.1. The president and Congress—The current balance of power

The new relationship between the Mexican president and Congress has become the subject of considerable study and conjecture. 17 Benito Nacif analyzes this relationship and points to a 180-degree shift in the role of the Mexican president. Far from being the supreme legislator, like his predecessors, the Mexican president has become the supreme coalition builder. (These terms are ours, not Professor Nacif's.) Nacif highlights the challenges of building a legislative coalition when competing political parties have no incentive to cooperate, 18 and he analyzes the changing role of the Mexican president under this new regime.

Nacif, supra note 15, at 2.

According to Nacif, under the constraints of a divided Congress, the president as supreme legislator has become the president as supreme veto wielder. “Clearly, the president is no longer chief executive and chief legislator at the same time. In fact, the contribution of legislation initiated by opposition parties to the total volume of legislation enacted by the Chamber of Deputies has become quantitatively more significant than that of the president and his party taken together. The main initiators of legislative change from 2000 to 2003 have been the opposition parties.” 19 Nacif points out that, lacking a majority in Congress or the ability to create a viable coalition, Fox's main instrument for influencing the direction of legislation appears to be the threat of using his veto to oppose obnoxious legislation emanating from the other parties. The Mexican Constitution gives the president the power to veto legislation, and a two-thirds vote in both houses of Congress is required to override the veto. 20 Since Fox's Party of National Action, or PAN, holds approximately one-third of the votes in the Senate (46 seats, or 35.9 percent), by garnering support from a single recalcitrant senator, the president can block legislation that is inimical to him and his party. As a consequence, “the power of the president and his party has been transformed into one that is essentially negative. They have the authority to prevent changes to existing legislation, but they cannot by themselves define the content of new legislation, as they could in the past.” 21

C onst . art. 72, § C.

Nacif, supra note 15, at 9.

The sexenio of President Fox (2000–2006) seems to confirm Nacif's conclusions. When he entered office in December 2000, President Fox's PAN party held only 207 seats in the 500-seat House of Deputies, or 41.4 percent of the votes. 22 Given the party discipline that prevails in Mexican politics, 23 passage of legislation would require Fox to form coalitions with either of the two major opposition parties. In the beginning, he was indeed able to promote legislative initiatives that attracted sufficient support to be adopted. From 2000 to 2003, the executive branch initiated sixty bills, a large majority of which (fifty) were adopted by Congress. 24 These initiatives included laws that will prove to be the lasting legacy of the Fox administration, most notably the Federal Transparency Law, 25 the creation of a federal retirement-savings fund, and constitutional reforms relating to the rights and autonomy of indigenous peoples. 26 Despite these moderate successes, the number and importance of Fox's executive initiatives from 2000 to 2003 paled in comparison to the numbers that characterized the period of PRI hegemony, discussed above. Even during this initial term of his presidency, Fox was unable to push through Congress important legislative reforms that had been part of his campaign agenda, including proposals to reform the electrical energy sector and to reform the tax system. The president's role in the legislative process had been dramatically altered.

The following table shows the distribution of seats among the three major parties in the Chamber of Deputies and the Senate from 2000–2003:

58 TH CONGRESS (2000–2003)

NUMBER OF SEATS HELD BY PARTY (PERCENTAGE OF TOTAL CHAMBER)