Mexican constitutionalism after
presidencialismo
Stephen Zamora* and José Ramón Cossı́o**
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authoritarian presidencialismo that dominated Mexico’s political culture throughout much of the twentieth century has been replaced by a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
* Leonard B. Rosenberg Professor of Law, University of Houston Law Center. Email: [email protected]
** Justice, Mexican Supreme Court, professor of constitutional law and former dean, Instituto Tecnológico
Autónomo de México (ITAM). The authors are indebted to Ran Hirschl and Christopher Eisgruber for their
valuable suggestions; to Monica Castillejos for her research and editing assistance; and to Rocio Alonso Garibay
for her research assistance. All translations of Spanish-language texts quoted in this essay are by the authors.
1
On the transformation of the electoral process in Mexico, see generally STEPHEN ZAMORA, JOSÉ RAMÓN
COSSÍO, LEONEL PEREZNIETO, JOSÉ ROLDAN & DAVID LOPEZ, MEXICAN LAW 162–178 (Oxford Univ. Press,
2004) [hereinafter MEXICAN LAW]. On Mexican judicial reforms, see id. at 186–228, 257–286.
ª The Author 2006. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
I·CON, Volume 4, Number 2, 2006, pp. 411–437 doi:10.1093/icon/mol011
411
412 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
S. Zamora and J. R. Cossı́o
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.
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.
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
2
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. Mejı́a, The Amendment Process in the Mexican Constitution (Monograph; Instituto Tecnólogico
Autónomo de México [ITAM], September 2003).
3
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 polı́ticas públicas [Bicameralism, Institutional Structure and
the Party System in Latin America: A points-and-players model to explain the provisions of public
policy], 44 FORO INTERNACIONAL 126 (2004).
413
Mexican constitutionalism after presidencialismo
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
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.
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 RELACIONES ENTRE GOBIERNO Y CONGRESO:
MEMORIA DEL VII CONGRESO IBERAMERICANO DE DERECHO CONSTITUCIONAL 362, 370 (Cecilia
Mora-Donatto ed., Universidad Nacional Autónoma de México 2002).
5
See generally JOSÉ RAMÓN COSSÍO, CAMBIO sOCIAL Y CAMBIO JURÍDICO [SOCIAL CHANGE
CHANGE] (Instituto Tecnológico Autónomo de México 2000).
6
AND
JUDICIAL
See generally JOSÉ RAMÓN COSSÍO, LA TEORÍA cONSTITUCIONAL DE LA SUPREMA CORTE DE JUSTICIA [CONSTITHEORY OF THE SUPREME COURT OF JUSTICE], ch. 2 (Fontamara 2002).
TUTIONAL
414 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
S. Zamora and J. R. Cossı́o
This well-documented and well-analyzed system7 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.
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
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
7
See generally ELISEO MENDOZA BERRUETO, EL PRESIDENCIALISMO MEXICANO: UNA TRADICIÓN ANTE LA
REFORMA DEL ESTADO [MEXICAN PRESIDENTIALISM: A TRADITION BEFORE THE REFORM OF THE STATE]
(2d ed., El Colegio de la Frontera Norte 1998); ELISEO MENDOZA BERRUETO, EL PRESIDENCIALISMO MEXICANO: GÉNESIS DE UN SISTEMA IMPERFECTO [MEXICAN PRESIDENTIALISM: GENESIS OF AN IMPERFECT SYSTEM]
(El Colegio de la Frontera Norte 1996). The most widely cited study by traditional constitutional
law scholars in Mexico is JORGE CARPIZO, EL PRESIDENCIALISMO MEXICANO [MEXICAN PRESIDENTIALISM] (Siglo XXI 1978). See also MEXICAN LAW, supra note 1, at 144–162.
8
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. INTER-AM. STUD. & WORLD AFF. 12 (1991).
9
NORMAN DORSEN ET AL., COMPARATIVE CONSTITUTIONALISM 220 (West 2003).
10
Cf. Keith Rosenn, Federalism in the Americas in Comparative Perspective, 26 U. MIAMI INTER-AM.
L. REV. 1, 5–6 (1994).
11
Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 639 (2000) (citing
Juan Linz).
12
Id.
Mexican constitutionalism after presidencialismo
415
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.
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.
13
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 [ExecutiveLegislative Relations in Mexico: The Case of the Presidential Veto], in RELACIONES ENTRE GOBIERNO Y
CONGRESO, supra note 4, at 645, 646.
14
MEXICAN LAW, supra note 1, at 151–152, and authorities cited therein.
15
Benito Nacif, Congress Proposes and the President Disposes: The New Relationship between the
Executive and Legislative Branches in Mexico, in MEXICAN GOVERNANCE: FROM SINGLE-PARTY RULE TO
DIVIDED GOVERNMENT 1, 7 (Armand B. Peschard-Sverdrup & Sara R. Rioff eds., CSIS 2005).
16
Id. at 10.
416 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
S. Zamora and J. R. Cossı́o
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.
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
17
See, e.g., SCOTT MAINWARING & MATTHEW SOBERG SHUGART, PRESIDENTIALISM AND DEMOCRACY IN LATIN
AMERICA (Cambridge Univ. Press 2003). See also Jeff Weldon, The Political Sources of Presidencialismo in Mexico, in MEXICAN GOVERNANCE, supra note 15; and MEXICO UNDER FOX (Luis Rubio & Susan
Kaufman Purcell eds., Lynne Rienner Publishers 2004).
18
Nacif, supra note 15, at 2.
19
Id. at 11.
417
Mexican constitutionalism after presidencialismo
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
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
20
CONST. art. 72, x C.
21
Nacif, supra note 15, at 9.
22
The following table shows the distribution of seats among the three major parties in the Chamber of Deputies and the Senate from 2000–2003:
58TH CONGRESS (2000–2003)
NUMBER OF SEATS HELD BY PARTY (PERCENTAGE OF TOTAL CHAMBER)
Chamber of Deputies
Senate
PAN
PRI
PRD
207 (41.1)
60 (46.9)
211 (42)
46 (40)
52 (10.4)
16 (12.5)
Elections for the Mexican Chamber of Deputies are held every three years. Elections for the Senate
are held every six years, and senators’ six-year terms (nonrenewable) coincide with the election
and terms of the Mexican President. See www.diputados.gob.mx.
23
On party discipline and bloc voting by party, see Luisa Béjar Algazi, Representación Parlamentaria
y Disciplina Partidista: el Caso de México [Parliamentary Representation and Party Discipline: The Case of
Mexico], in EL CONGRESO MEXICANO DESPUÉS DE LA ALTERNANCIA 197, 207–221 (Rosa Mirón Lince &
Luisa Béjar Algazi eds., AMEP 2003), and studies cited therein. See also Nacif, supra note 15, at 16.
24
Nacif, supra note 15, at 10. One of these bills, the Federal Law of Transparency and Access to
Governmental Public Information—Mexico’s first ‘‘freedom of information’’ law—may turn out
to be the most important legacy of the Fox sexenio. For information on the transparency law,
see MEXICAN LAW, supra note 1, at 312–313. Information on the law is also available on the
web site of the agency created to administer the law. See www.ifai.org.mx.
418 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
S. Zamora and J. R. Cossı́o
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.
President Fox’s efficacy as an initiator of legal change suffered even more
in the fifty-ninth Congress (2003–2006), in which the PAN’s representation
in the Chamber of Deputies fell to a scant 30 percent of the five-hundred
seats.27 During the second half of the sexenio, opposition parties lacked the
incentive to join Fox and his PAN party in legislative initiatives that might
propel the PAN to electoral victories in 2006. The result has been a virtual
stalemate between the president and Congress. The president has been unable
to move important legislation through Congress, and Congress has lacked the
ability to adopt significant reforms due to the threat of presidential veto. Thus,
in contrast to the first three years of Fox’s administration, the executive
branch initiated only twenty-two bills (3.2 percent of all bills introduced
during the fifty-ninth legislature), and of these only ten were adopted by
Congress.28
The above analysis puts into perspective the criticism that is invariably
leveled at the presidency of Vicente Fox within Mexico. Rarely has a Mexican
president been more maligned while in office; yet this is surely a product of the
disappointment felt after the high expectations for reform held by many
Mexicans when Fox was elected president. But Fox is the first president in
memory to work under a constitutional system based on true separation of
powers—a system that is, after all, less than ten years old (counting from
25
‘‘Ley Federal de Transparencia y Acceso a la Información Gubernamental,’’ D.O.,
June 11, 2002.
26
On these reforms, see MEXICAN LAW, supra note 1, at 237–238. The constitutional reforms on
indigenous rights have proved to have little practical effect to date.
27
59TH CONGRESS (2003–2006)
NUMBER OF SEATS HELD BY PARTY (PERCENTAGE OF TOTAL CHAMBER)
Chamber of Deputies
Senate
PAN
PRI
PRD
153 (30.6)
47 (36.7)
224 (44.8)
58 (45.3)
52 (19.4)
16 (12.5)
See www.diputados.gob.mx.
28
Data compiled by Benito Nacif, CIDE (www.cide.mx).
Mexican constitutionalism after presidencialismo
419
the loss of the PRI congressional majority in 1997). His accomplishments
must be weighed with this perspective in mind.
1.2. Federal agencies as a control on presidential power
During the period of presidencialismo, federal agencies were generally subject
to the overwhelming political control of the president, which prevented these
agencies from placing limits on presidential whims by adhering to legal rules.
This was true even of the independent agencies, or agencias desconcentradas,
which were theoretically free from direct executive control. The weakening
of the presidency has brought about a concomitant strengthening of these
institutions, and agencies such as the Federal Energy Regulatory Commission
(Comisión Nacional Reguladora de Energia) or the Federal Antitrust Commission (Comisión Federal de Competencia) are developing technical criteria for
their decision making, as opposed to political criteria. When coupled with
the adoption in 2003 of the first Mexican Federal Civil Service Law,29 which
protects federal workers from dismissal for political reasons, this development
should have a significant effect in strengthening the rule of law in Mexico.
The tug-of-war between the president and Congress with regard to federal
budgetary policies is also undergoing profound revision, as we will discuss in
the next section. The presidency’s adherence to the will of Congress on federal
spending issues has been strengthened by the creation, in 2000, of the
Auditoria Superior de la Federación (ASF). The ASF, similar to the U.S.
General Accounting Office, provides accounting and oversight of the spending of federal funds. Created by and subject to the authority of the Cámara
de Diputados, or Chamber, the ASF is, nevertheless, endowed with political
independence.30
1.3. Future prospects for executive-legislative separation of powers
It is too early at this writing to predict the outcome of the next Mexican
presidential/congressional elections, to be held in July 2006. It is possible
that Mexico will elect a president with a majority of the popular vote, rather
than the plurality enjoyed by Vicente Fox. It is also possible that the political
party of the new president will command a majority in one, or even both,
houses of Congress. Both possibilities are unlikely, however, for the simple
reason that Mexico has three viable, well-organized political parties that
divide votes on national and regional levels. Moreover, the three major parties
are likely to form alliances with other, fringe political parties, making it difficult to predict the results. And with three political parties spread out along the
political spectrum, deadlock is always a threat. This contrasts with the United
States and Canada, which are essentially two-party systems, where the
29
‘‘Ley del Servicio Profesional de Carrera de la Administración Pública Federal,’’ D.O., Apr. 10,
2003.
30
For information on the ASF, see www.asf.gob.mx.
420 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
S. Zamora and J. R. Cossı́o
opposition party occasionally will assume control of the executive and/or
legislative branch. Benito Nacif assumes that the division of legislative power
in Mexico tends to work against the adoption of novel or even extreme
policies, and to favor policies of the centrist party—in this case, the PRI. There
has been an increase in studies of a parliamentary system for Mexico, as a
way out of multiparty deadlock, but this change does not appear likely.
It is worth noting that Mexico’s particular form of representative
democracy is structurally unusual in several respects. First, the principle of
nonreëlection, a vestige of nineteenth-century liberalism and one of the
foundations of the Mexican revolution, is applied to congressional as well as
presidential elections.31 This fact, coupled with the timing of presidential
and congressional elections, means that the presidency, Senate, and Chamber
of Deputies all undergo complete renovation every six years. The first three
years of the president’s term will be spent creating a coalition, and the last
three years—if the president is as unlucky as Vicente Fox—may leave a
lame-duck president in place for almost as long as the full term of a U.S.
president. This method of election, including the broad exercise of nonreelection, is mandated by the Mexican Constitution; nonreëlection has been at the
center of many political disputes in Mexico, and any deviation from the concept is likely to face opposition.32 Nevertheless, since Mexico’s Congress has
suddenly assumed a crucial role in the development of the country’s laws
and policies, commentators33 have recognized that the time has come to
revisit the question whether moderation of the nonreëlection rule might
lead to a more effective, professional legislature.
2. The new role of the Mexican Supreme Court
At the outset, we attempted to show how the dramatic decline in the power of
the Mexican presidency resulted in a corresponding empowerment of the
Mexican federal Congress, inaugurating a true separation of legislative and
executive powers that had not existed since the adoption of the Mexican
Constitution in 1917. A second and equally important result of the demise
of presidencialismo has been an increase in the stature of the Mexican judiciary, in particular of the Mexican Supreme Court, as a major factor in the
development of law and policy in Mexico. The rise in importance of the
Mexican federal judiciary in the constitutional order also benefited from
31
On the principle of nonreelection, see MEXICAN LAW, supra note 1, at 140–142, 174.
32
CONST. arts. 51, 56, 59.
33
See, e.g., Vı́ctor Alacrón Olguı́n and Claudia Jiménez González, Carreras Legislativas en el Senado
de la República: 1994–2006 [Legislative Races in the Senate of the Republic: 1994–2006], in EL
CONGRESO MEXICANO DESPUÉS DE LA ALTERNANCIA, supra note 23, at 121.
Mexican constitutionalism after presidencialismo
421
significant constitutional reforms, beginning with President Zedillo’s
momentous judicial reforms in 1994.
Under la Reforma Judicial of President Ernesto Zedillo, which took effect on
January 1, 1995, the Supreme Court was restructured, the bulk of its administrative and disciplinary duties were shifted to a new institution (the Federal
Judicial Council, or Consejo de la Judicatura Federal), the Court’s jurisdiction
was altered to allow it to focus more on constitutional issues, and a new
procedural device (the ‘‘action of unconstitutionality’’) was created to allow
for meaningful challenges of government abuses. The 1994 reforms and
Mexico’s new political climate were designed to assure the Supreme Court’s
independence from external political pressure, and to help the bolster the
independent and efficient administration of the courts.34
At least one commentator has proposed that the spate of constitutional
reforms after 1994 represented an attempt by the PRI to provide an insurance
policy against the loss of diminished political power; by empowering the
Supreme Court, the PRI hoped to provide itself with some protection against
the power of opposition parties now in the ascendancy.35 Whatever the
reason, these constitutional reforms, combined with the demise of presidentialism, have thrust the Mexican Supreme Court into a new, enhanced role
in the Mexican constitutional order. As sole interpreter of the Mexican
Constitution, the Supreme Court has suddenly been called upon to arbitrate
conflicts that have arisen in the growing power vacuum opening up between
the presidency and Congress.
An example of the Supreme Court’s empowerment is the controversia
constitucional that arose in May 2005 over President Fox’s attempt to add
‘‘terms,’’ that is, certain conditions, to the federal budget approved by
Congress.36 The presidential action caused a great uproar.
Some background will help elucidate this controversy. The 1994 judicial
reforms included the adoption of new procedures to enhance the Supreme
Court’s role as a constitutional court.37 One set of procedures, the controversias constitucionales, had been part of the Constitution since 1917, but it has
been expanded to permit the Supreme Court broader authority in settling
34
MEXICAN LAW, supra note 1, at 188.
35
See Jodi Finkel, Judicial Reform as Insurance Policy: Mexico in the 1990s, 46 LAT. AM. POL. & SOC.
87 (2005). Finkel surmises that judicial reform may have presented potential short-term costs for
the PRI, since it qualified the party’s control of the judiciary. At the same time, the Supreme
Court’s enhanced powers of review would allow the party to use the courts to shield the party
against future political threats posed if opposition parties came to power. Id. at 88. ‘‘While the
PRI might not have been able to prevent decisions and actions taken against its interests by
opposition-controlled political offices, at least it could challenge these actions via an autonomous
and empowered judiciary.’’ Id. at 108.
36
Controversia Constitucional 109/2004.
37
See generally MEXICAN LAW, supra note 1, at 274–286.
422 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
S. Zamora and J. R. Cossı́o
conflicts that exist among government authorities. A classic example of such
a conflict arose in 2004, over the federal budget. President Fox, objecting to
provisions in the budget approved by the Cámara de Diputados, sought to
add ‘‘observations’’ (that is to say, objections) before publishing the budget;
the Chamber vehemently objected, contending that Fox’s action amounted to
an unconstitutional veto. On May 17, 2005, the Supreme Court, in a complex
series of rulings, recognized the president’s authority to register ‘‘observations’’
in publishing the budget but also provided procedural directions by which Congress could vote to reject them.38 The Supreme Court’s decision appears to be
constitutionally sound; more important, it also appears to be politically sensitive, for the decision instructs the political branches of government in how to follow a systematic path to break budget impasses.
Another example of the Supreme Court’s new role can be found in the
decision, rendered June 15, 2005, that former president Luis Echeverrı́a
Álvarez could be tried for crimes allegedly committed while he was in office
(1970–1976).39 Such a case would have been unthinkable during the days
of PRI hegemony,40 but President Fox, soon after his election, fulfilled a
campaign pledge by naming a special prosecutor to investigate allegations
of crimes committed by former government officials against political dissidents during the late 1960s and early 1970s. In July, 2004, the special prosecutor’s office sought an indictment against Echeverrı́a Álvarez, former
interior minister Mario Augusto José Moya y Palencia, and several others,
accusing them of the crime of genocide41 for their alleged involvement in
the killings and beatings of dissidents in 1971. Subsequently, a Mexican
federal judge refused to issue an arrest warrant, on the grounds that the
thirty-year statute of limitations for the alleged crime had expired. On June
15, 2005, in a 3–2 decision, the First Chamber of the Supreme Court held
that the statute of limitations should be tolled during the period in which
President Echeverrı́a and Minister Moya y Palencia held office. The Court
noted that a sitting president can only be indicted for treason or ‘‘serious
38
Justice Cossı́o, coauthor of this essay, voted against this final ruling of the Court. As explained
in his dissenting opinion, the matter should simply have been returned to the Cámara de
Diputados for resolution. If the Cámara voted by a two-thirds majority to reject President Fox’s
contentions, the budget should be published with the president’s observations excised. If a twothirds vote is not obtained, the budget should be published with the president’s observations
included. See Controversia Constitucional 109/2004 (Cossı́o, dissenting), and Recurso de
reclamación 371/2004 (Cossı́o, dissenting).
39
Recurso de Apelación 1/2004-PS (June 15, 2005), and Recurso de Apelación 8/2004-PS
(Oct. 13, 2004).
40
During the PRI’s hegemony, former presidents remained far removed from politics, and, in
exchange, there would be no thought to investigating corruption or other matters that occurred
during the former president’s administration.
41
C.P.D.F. art. 149, D.O., Aug. 14, 1931, amended by D.O., Jan. 20, 1967.
Mexican constitutionalism after presidencialismo
423
crimes against public order,’’ but as a sitting high official, the president must
undergo an impeachment proceeding (juicio polı́tico) before Congress. The
Court reasoned that pursuant to article 109 of the Constitution, the thirtyyear statute of limitations should be considered suspended during the period
the accused was in office. Consequently, Echeverrı́a and Moya y Palencia
could be brought to justice at any time before December 1, 2006, the thirtieth
anniversary of the date they had left office.
In both cases just discussed, the Mexican Supreme Court was forced to
consider highly charged, unprecedented political controversies. The budget
controversy is particularly emblematic of the dramatic constitutional shift
in separation of powers that has taken place in Mexico. Tensions between
the executive and legislative branches are not unknown in the United States
or Canada, of course, but the modus operandi for resolving them has been
worked out over many decades.42 In Mexico, on the other hand, due to the
legacy of presidencialismo, there is a virtual tabula rasa when it comes to legislative or constitutional precedents for resolving this tension, and the Supreme
Court has been forced to assume a major role in mediating the presidentialcongressional conflict. Given the current political state, with three major
political parties jousting for ascendancy, legal doctrines and institutions are
bound to be tested; no doubt, the Supreme Court will be called upon to issue
more groundbreaking opinions in the near future.
In Mexico, the recognition of the Supreme Court as an active decision
maker in the development of law and society is a new concept. Traditional
Mexican legal philosophy rejects the role of the judge as an expansive interpreter of the law (or of the Constitution) in keeping with modern-day policy
considerations. In accordance with the civil law tradition, Mexican judges
are supposed to apply the law, following the intent of the legislative body
that created it; judges are not expected to create legal doctrines or new interpretations after weighing policy considerations. Finally, under conditions of
presidencialismo, the Mexican judiciary, including the Supreme Court, lacked
the political support to challenge executive power.
In the post-presidentialist environment, these conditions have changed.
The Mexican Supreme Court has been thrust into a position where it must
analyze public and social policy in the process of establishing new legal
and constitutional doctrines. Thus, since the judicial reforms of 1994, the
Supreme Court has been faced with resolving numerous cases of first impression. Here is a small sampling.
In 1998, the Supreme Court held that a judge must be reinstated as
an appellate judge (magistrado) of the State Supreme Appellate Court of
42
For a comparative discussion of the powers of the U.S. president in budgetary matters, see
generally Stephen Zamora, El Poder Presidencial y la Economı́a de los Estado Unidos [Presidential
Power and the U.S. Economy], in 2 DERECHO CONSTITUCIONAL COMPARADO MÉXICO–ESTADOS UNIDOS
841, 857–862 (James Smith ed., Universidad Nacional Autónoma de México 1990).
424 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
S. Zamora and J. R. Cossı́o
Michoacán, and that removal of the judge, by political forces in the state of
Michoacán, violated the guarantees of article 116, section III, of the Constitution. The Court’s opinion substantially bolstered the importance of judicial
independence in achieving a consistent application of the rule of law in
Mexico.43
The Supreme Court held, in 1999, that constitutional amendments
must adhere not only to the requirements set forth in the Constitution but
also to the particular legislative procedures adopted by the Mexican Congress
for amending the Constitution, thus giving such procedures quasiconstitutional status. Consequently, a private person adversely affected by a
constitutional amendment that has not been adopted in accordance with
applicable legislative procedures is entitled, through the amparo procedure,
to challenge such amendments as violating due process of law.44
In 2004, the Supreme Court reviewed a new state property law for the
state of Aguascalientes that affected the acquisition of real and personal
property and services by state agencies, including the judiciary. The State
Supreme Court challenged the application of the law to the judiciary as a
violation of judicial independence, as guaranteed by article 116, section III,
of the federal Constitution. Rather than approve or reject the constitutionality
of the law as a whole, the Supreme Court held that each provision of the
property law must be evaluated separately, in regards to their practical
effects, in order to judge the provisions’ impact on judicial independence.
The Court recognized the complex nature of judicial independence and
showed a readiness to enter into the kind of balancing analysis that U.S.
courts, including the U.S. Supreme Court, have engaged in repeatedly when
analyzing constitutional questions.45
Miguel González Compeán and Peter Bauer have analyzed the new role
played by the Mexican Supreme Court as a necessary arbiter of conflicts arising between the political powers of government.46 In commenting on a 1997
decision in which the Court resolved a constitutional controversy between
a municipality and the state government over territorial boundaries,47 the
authors called attention to language in the Court’s opinion that emphasizes
the Supreme Court’s responsibility to consider the well-being of citizens in
resolving such disputes. Their analysis reads like a conservative diatribe
43
Amparo en revisión 2639/96, 5 SJF 5 (9a época 1998).
44
Amparo en revisión 1335/98, 10 SJF 8 (9a época 1999).
45
Controversia constitucional 35/2000, 20 SJF 1122 (9a época 2004).
46
MIGUEL GONZÁLEZ COMPEÁN & PETER BAUER, JURISDICCIÓN Y DEMOCRACIA: LOS NUEVOS RUMBOS dEL
PODER JUDICIAL EN MÉXICO [JU RISDICTION AND DEMOCRACY: THE NEW COURSES OF JUDICIAL POWER IN
MEXICO] (Cal y Arena 2002).
47
Id. at 371–374, commenting on Controversia Constitucional 31/97, 10 SJF 708 (9a época
1999).
Mexican constitutionalism after presidencialismo
425
against liberal judges in the United States: ‘‘The decision is important because
it points to a tendency to create, under the pretext of operating as a Constitutional Court, new constitutional principles that do not expressly appear in the
text of our constitution and are not derived from it. This amounts to a red
light since the case itself turned solely on whether the state legislature respected the legal rights granted by Articles 14 and 16 of the Constitution. . . .
The case had not raised any questions of principle or policy. The extension
by the Court of its exercise of constitutional jurisdiction is striking in this
case, for without express or reasonably implicit grounding in the Constitution, and straying from the limited issue raised by the litigation, [the Court]
assumed functions that as a political matter belong to the legislator or to
the framers of the Constitution.’’48
With the Supreme Court undertaking a new role as mediator of basic
constitutional and legal conflicts, policy making cannot be avoided. This is
especially true when the Supreme Court’s decisions have immediate precedential effect, as is the case with controversias constitucionales and acciones de
inconstitucionalidad.
In short, after decades of exercising relatively little impact on the
development of law in Mexico, the Mexican Supreme Court has finally
assumed a key role in a system that is learning to live with the checks and balances that have been the hallmark of the U.S. constitutional model. Policy
making—or ‘‘judicial activism,’’ the term used in the United States and
Canada—is a byproduct of this new role. In commenting on the U.S. and
Canadian judicial models, political scientist Mark Miller states that ‘‘judicial
activism means that the courts are quite willing to make public policy when
the other institutions of government either cannot or will not.’’49 This phrase
could easily be seen as applying to current conditions in Mexico, where a
power vacuum makes the political resolution of issues difficult.
None of this is to say that judicial activism is practiced without criticism,
whether it occurs in the United States, Canada, or Mexico. In the United
States, society has become accustomed to a powerful judicial branch within
the constitutional order. U.S. judicial opinions cite legal doctrines, yet they
also include lengthy discussions of policy implications. Many critics decry
judicial activism as undemocratic, or as a departure from the original
intent of the framers of the U.S. Constitution. Nevertheless, U.S. society as
48
49
GONZÁLEZ COMPEÁN & BAUER, supra note 46, at 373–374.
Mark Miller, A Comparison of the Judicial Role in the United States and in Canada, 22 SUFFOLK
TRANSNAT’L L. REV. 1, 5 (1998). For critical studies of judicial activism in Canada, see generally
F. L. MORTON & RAINER KNOPFF, THE CHARTER REVOLUTION AND THE COURT PARTY (2nd ed., Broadview
Press 2000); CHRISTOPHER MANFREDI, JUDICIAL POWER AND THE CHARTER (2nd ed., Oxford Univ. Press
2001); ROBERT MARTIN, THE MOST DANGEROUS BRANCH: HOW THE SUPREME COURT OF CANADA HAS
UNDERMINED OUR LAW AND OUR DEMOCRACY (Oxford Univ. Press 2003); and KENT ROACH, THE SUPREME
COURT ON TRIAL (Irwin Law 2003).
426 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
S. Zamora and J. R. Cossı́o
a whole has become accustomed to courts actively engaging in the
development of law at local, regional, and national levels.
According to Mark Miller, Canadians have long harbored a distrust of
judicial activism as a threat to majoritarian democracy. Nevertheless,
beginning in the 1970s, the Canadian Supreme Court started to behave
more like its U.S. counterpart, becoming more activist and policy-oriented.
This became more pronounced after the adoption in 1982 of the Canadian
Charter of Rights and Freedoms, which expanded the jurisdiction of the
Canadian Supreme Court, requiring it to consider new constitutional rights
that forced it to take a more activist, policy-minded approach.50
A number of political scientists have focused attention on the growing
use of judicial activism around the world, which may be referred to as the
‘‘judicialization of politics.’’51 In Mexico, Miguel González Compeán and
Peter Bauer have used this same phrase—judicialización de la polı́tica—in
describing the new role of the Mexican Supreme Court. In discussing a
number of Supreme Court decisions dealing with issues arising from the
Mexican political system, the authors note: ‘‘The orientation of these
decisions points to ‘judicialization of politics,’ including the risk that this
carries, towards ‘government by judges’ or a judicial legal order. At least
this appears to be derived from the comments made by certain Supreme Court
justices in different forums. Even though the Chief Justice [Góngora Pimentel]
has denied the intent to create a ‘government by judges,’ the reality is that
the risk is not merely a problem of semantics, but a result of the ideas held
by a majority of the justices, founded above all in the official comments of
the Chief Justice, and in the dynamics of the Court’s decisions.’’52
3. Changes in Mexican federalism
A third aspect to Mexico’s new constitutionalism is concerned with changes
in Mexican federalism. The study of federalism in North America is rich territory for comparative constitutional analysis. Canada, Mexico, and the United
States may share federal forms of government, but each country displays a
markedly different style of federalism, the variations resulting from differences
50
Id. at 6–7. ‘‘Because of this long-held majoritarian view in Canada, judges, lawyers, and social
scientists there have traditionally not thought of the courts as having policy-making powers.’’
Id. at 7.
51
See generally THE GLOBAL EXPANSION OF JUDICIAL POWER (C. Neal Tate & Torbjorn Vallinder eds.,
NYU Press 1997). See also RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF
THE NEW CONSTITUTIONALISM (Harvard Univ. Press 2004); and Ran Hirschl, Constitutional Rights
Jurisprudence in Canada and the United States: Substantive Convergence or Enduring Divergence?, in
CONSTITUTIONAL POLITICS IN CANADA AND THE UNITED STATES 63–88 (Stephen Newman ed., SUNY
Press 2004).
52
GONZÁLEZ COMPEÁN & BAUER, supra note 46, at 394–395.
Mexican constitutionalism after presidencialismo
427
in historical background and in the cultural and political forces that have
shaped each country. To begin with, the colonial histories of the three
countries have dictated different approaches to the division of powers
between federal and state or provincial governments. Compared with Mexico,
the British colonies in Canada and the United States enjoyed a greater
measure of freedom in local self-government, and this colonial background
may help explain the degree of preservation in Canada and the United States
of state and provincial power over local matters.53 By contrast with the
British colonies, the Viceroyalty of Mexico, or Nueva España, was tightly
governed by a sophisticated hierarchy of secular and religious controls emanating directly from the Spanish monarchy and its subordinate institutions.54
The difficult-to-shake legacy of centralized colonial law was carried over into
independent Mexico and became an important factor in the constant conflict
between the conservative (centralist) and liberal (federalist) forces that
dominated the first hundred years of Mexican political history.55
It has been extremely hard for Mexico to shake the centralist legacy of its
colonial past. While tensions between centralist and federalist divisions of
power dominated the first fifty years of Mexican independence, the pendulum
has usually swung in favor of centrism; indeed, the move toward increased
state and local authority over government services has been so slow that a
swinging pendulum is hardly appropriate to the phenomenon. In Mexico,
the distribution of powers between federal and state governments has evolved
at a glacial speed, due to the calcification of political power in the central
government during the course of the twentieth century.
As with the monopolization of executive power under presidencialismo, the
centralization of governmental power at the federal level throughout the
twentieth century was a product not of constitutional design but, rather, a
reflection of the PRI’s consolidation of power. In its design, the Mexican
Constitution is very similar to its U.S. counterpart in both assigning specific
legislative powers to the federal Congress and including a ‘‘savings clause,’’
article 124, that states: ‘‘The powers not expressly granted by this constitution to federal officials are understood to be reserved to the States.’’ The inclusion of the term ‘‘expressly’’ in article 124 might seem to point to a restrictive
reading of federal legislative power in Mexico.56 This has not been the case,
however, for two reasons. First, the enumerations of federal legislative power
in article 73 of the Constitution have, like other constitutional provisions,
53
See Rosenn, supra note 10.
54
See MEXICAN LAW, supra note 1, at 1–18.
55
See Federalism and Centrism, in id. at 102–131.
56
Compare the language of the Tenth Amendment to the United States Constitution: ‘‘The
powers not delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.’’
428 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
S. Zamora and J. R. Cossı́o
been subjected to continuous amendment and enlargement.57 Second, and
equally important, the lengthy article 73 includes in section X broad allocations of exclusive federal power to legislate on oil and gas, the motion picture
industry, commerce, games of chance and lotteries, brokers and financial
services, electrical and nuclear power, and labor and employment law. These
are all areas reserved to the states under the U.S. Constitution, although
Congress has seen fit, under the authority of the commerce clause, to establish concurrent regulation in all of these areas. Mexico’s article 73, section
XXV, also confers on the federal Congress the exclusive power to establish
and maintain public schools through the Republic.58
These constitutional assignments of federal legislative power, while broad,
still do not explain why Mexican state governments lack the power of their
counterparts in either the United States or Canada. As Jorge Schiavon points
out, in lucid detail,59 the centripetal forces of Mexican federalism are the
result of a combination of legal and extralegal powers assumed by President
Plutarco Elias Calles (1924–1928) and his presidential successors.60 Thus,
as head of the PRI, which controlled both federal and state politics, the
Mexican president assumed the power to handpick PRI candidates who
were assured of winning state elections for governor and legislature. The president’s power even extended to the removal of elected officials who proved
resistant to the president’s policies. Thus, the most blatant example of federal
government control over the states is found in article 76, section V, of the
Mexican Constitution. This article permits the federal Senate to vote to
remove a state governor from power where, in the opinion of a majority of
senators, the governor has lost the ability to maintain control of a state
(desaparición de poderes). Since the PRI controlled the Senate, the Mexican
president could, if the need arose, remove recalcitrant state governors;
according to one authority, this power was used or threatened sixty-three
times from 1917 to 1975.61
Mexico is not alone in adopting a federal constitution and then
withholding power from states or provinces. According to Keith Rosenn, in
part for historical reasons, ‘‘power in all Latin American federal nations is
57
Article 73 is one of the most frequently amended provisions of the Mexican Constitution, more
so than any other article of the constitution.
58
These broad allocations of legislative power are similar in some respects to those assigned to the
federal government in Canada, where the Constitution assigns exclusive legislative powers to
both the federal and provincial governments but includes a number of subjects (criminal law,
marriage, and divorce) that are reserved to the states in Mexico and the United States. See the
comparative discussion in Rosenn, supra note 10, at 11–13.
59
Jorge A. Schiavon, The central-local division of power in the Americas and the renewed Mexican
federalism: Old institutions, new political realities, 4 INT’L J. CON. L. (I·CON) 392 (2006).
60
See MEXICAN LAW, supra note 1, at 32–33.
61
See Manuel González Oropeza, cited in id. at 116.
Mexican constitutionalism after presidencialismo
429
far more centralized than in Canada and the United States.’’62 By the 1990s,
perhaps as a reflection of the neoliberal economics that had reached ascendancy in the hemisphere, a number of Latin American nations began to institute political reforms to decentralize power to local governments.63 In
Mexico, this impulse, which coincided with the first fissures in the PRI’s political hegemony, occurred at the state level, when the PRI, for the first time,
began to lose gubernatorial elections in the northern states of Mexico.64
These early victories helped generate credibility for the opposition parties—
especially the PAN—as viable alternatives to the PRI’s monopoly. These victories have not, however, resulted in a marked increase in state power. Even
the development of a ‘‘new federalism’’—first announced by President
Ernesto Zedillo in 1995, during the waning days of the PRI’s hegemony—
has produced relatively little true dissemination of power to the states. As
pointed out by Arturo Alvarado, federalism under Zedillo, which transferred
greater control over health and education programs from the central
government, actually bypassed the state governments by transferring greater
control to municipal governments over local expenditures.65
To date, it does not appear that former president Zedillo’s ‘‘new federalism’’
has resulted in a significant new direction for federalism in Mexico. And
Vicente Fox, Zedillo’s successor, does not seem to have included decentralization as a major component in his administration’s political philosophy. The
main impetus for decentralization has come from the states themselves, and
from the newly empowered governors of Mexican states. With the demise of
presidencialismo, the governors of Mexican states, once considered puppets of
the president, have begun to flex their political muscles as a group. Referred
to as ‘‘modern viceroys’’ by Peter Ward,66 state governors now come from
all three major political parties, and, despite political differences, they have
begun to form a lobbying group, as it were, to promote common state
interests. This group, the Conferencia Nacional de Gobernadores (CONAGO),
62
Rosenn, supra note 10, at 4.
63
Id. at 8–9.
64
The first statewide election lost by the PRI in modern times occurred in 1989, when Ernesto
Ruffo Appel, the PAN candidate, was elected governor of the State of Baja California. Opposition
candidates also won gubernatorial elections in Chihuahua (1992); Jalisco and Guanajuato
(1995); Nuevo León and Querétaro (1997); Zacatecas, Tlaxcala, and Aguascalientes (1998);
and Baja California Sur and Nayarit (1999).
65
We have drawn from the discussion of Zedillo’s ‘‘new federalism’’ in Arturo Alvarado, El viejo y
el nuevo federalismo: Del presidencialismo unipartidista al federalismo partidista [The old and new federalism: From one-party presidentialism to multi-party federalism], in EL NUEVO FEDERALISMO EN AMÉRICA DEL NORTE 505–560 (Paz Consuelo Márquez-Padilla & Julián Castro Rea eds., Universidad
Nacional Autónoma de México 2000); and from Peter Ward, Nuevo federalismo, relaciones
intragubernamentales y cogobierno en México, in id. at 335–384.
66
See Peter Ward, supra note 65, at 337.
430 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
S. Zamora and J. R. Cossı́o
consists of the governors of the thirty-one Mexican states and the head of
government for the Federal District. Organized in July 2002 for the ostensible
purpose of ‘‘strengthening federalism through democratic means,’’67
CONAGO was created by the governors68 and municipal political leaders
as a vehicle for organizing public opinion and political support in favor of
decentralization of public spending in Mexico, which has always been dominated by the federal government. Since the relative impoverishment of state
and local governments has contributed so markedly to centralized, authoritarian government in Mexico, it is appropriate to provide some background on
federal-state financing before discussing something new in Mexican political
life, the National Budget Convention (Convención Nacional Hacendaria),
or CNH.
3.1. The federal government’s control over public spending
Much of the PRI’s hegemony was based on control by the federal government
of almost all public spending, both state and federal. Key to the PRI’s federal
control was the system of tax collection used in Mexico:
Under the original Constitution of 1917, federal, state, and municipal
taxing powers continued to be understood as undefined, concurrent powers.
However, beginning in 1925, the federal government passed a succession of
tax laws forcing, either explicitly or implicitly, the coordination of taxation
by federal and state governments, and instigating a system of revenuesharing by federal, state, and local governments.69
Under this system, which is still in force, a federal Ley de Coordinación
Fiscal, or LCF (Law of Fiscal Coordination),70 gives the federal government
authority for collecting all value-added taxes (referred to by its Spanish acronym, IVA) and income taxes in the Republic, with the federal government
assigning a portion of those taxes to the states. Since IVA and income taxes
represent the principal sources of tax revenues in Mexico,71 this system of
67
For basic information on CONAGO, see www.conago.org.mx.
68
At the outset, President Fox’s interior minister, Santiago Creel, prohibited PAN-elected governors
from participating in CONAGO, but the PAN leadership relented, and governors from all three
political parties have participated in CONAGO. See Alberto Diaz-Cayeros, Mexican Federalism and
the Institutionalization of the Politics of Governors, at 24, note 20, available at www.stanford.edu/
~albertod/politicsofgovernors.pdf (paper presented at the conference entitled ‘‘What Kind of
Democracy Has Mexico? The Evolution of Presidentialism and Federalism,’’ March 4–5, 2005,
Center for U.S.–Mexican Studies, University of California at San Diego.
69
MEXICAN LAW, supra note 1, at 126.
70
D.O., Dec. 27, 1978, as amended. The current version of the law is available at www.juridicas.
unam.mx/ijure/fed.
71
In addition to IVA and income taxes, the federal government receives a large percentage of its
federal budget from oil revenues generated by PEMEX, the government-owned oil company. For
example, during the six months of 2005, PEMEX generated approximately 35 billion dollars to
the federal budget, amounting to over 35 percent of all federal revenues. Hacienda: aportó Pemex
Mexican constitutionalism after presidencialismo
431
revenue sharing leaves all decision making in the hands of the federal
government, especially the executive branch, which decides not only the
amount of total tax revenues to share with the states but also the portion
that each state will receive.
Federal domination of taxation in Mexico is a byproduct of forces that are
both legal and extralegal. The Constitution gives express power over certain
types of taxation to the federal government,72 and it prohibits the states
from imposing taxes on interstate and foreign commerce.73 In general, at
the time of the Constitution’s adoption, the federal, state, and municipal
taxing powers were considered to be concurrent, which would lead one to
believe that states could impose income or sales taxes of their own. However,
beginning in 1925, the Mexican Congress began to shift the balance of power
over taxation to the federal government by means of successive laws that
enabled the federal government to collect taxes and share the revenues
with the states.74 By agreeing to participate in revenue sharing, the states
have waived their rights by law.75
State revenues have never recovered from the concession of taxing
authority to the federal government.76 Most state governments have been
left with insufficient revenues to fund programs in areas in which the states
are clearly competent to legislate. The result: Mexican public finance is one
of the most centralized in the world, with the federal government collecting
95 percent of all revenues. Even after revenue sharing, the state and
municipal portion of public spending amounts to only 30 percent of all
government revenues.77
Under the Mexican Constitution, the states’ fiscal independence is further
hindered by the prohibition on states and municipalities that thwarts their
al fisco $334,501.7 millones en seis meses [Pemex contributed $334,501.7 million to the state treasury in six months], LA JORNADA, Aug. 3, 2005, at 24. Despite calls for reform from the states, the
federal government has never included oil revenues in its revenue-sharing program with the
states.
72
See, e.g., CONST. art. 73, x XXIX (federal taxation of certain activities, and revenue sharing with
states).
73
See CONST. art. 117, xx IV, V, VI and VII.
74
See the discussion in MEXICAN LAW, supra note 1, at 126.
75
Under article 10 of the Ley de Coordinación Fiscal, supra note 70, the states must enter into
agreements with the federal treasury secretary to participate in revenue sharing.
76
Municipalities may collect property taxes, but the funds generated by property taxes represent
a small portion of public revenues.
77
Alberto Diaz-Cayeros, Dependencia fiscal y estrategias de coalición en el federalism mexicano
[Fiscal Dependance and Coalition Strategies in Mexican Federalism], in Polı́tica y Gobierno, Vol. XI,
No. 2, 231, 232 (CIDE 2004). It would appear that the figure of 95 percent for total revenues would
include ‘‘taxes’’ imposed on PEMEX, the state-owned oil monopoly, which helps to support federal
government spending. As noted above, PEMEX revenues do not enter into revenue sharing.
432 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
S. Zamora and J. R. Cossı́o
borrowing in international capital markets;78 this prevents the states from
borrowing aggressively to finance their own development. Control of external
debt incurred by political subdivisions, in order to maintain the federal
government’s control over the money supply and foreign exchange, is
probably a sound measure. History teaches that foreign borrowing by political
subdivisions can be a bad idea.79 There is no such constitutional impediment to
domestic borrowing by the Mexican states; however, there is no market to speak
of in public bond financing by states or municipalities in Mexico that would
relieve their dependence on the ‘‘participations’’ provided by the federal government. At the same time, the lack of adequate revenue streams for state
and local agencies hinders the formation of a public bond market.
The ‘‘centralized federalism’’ of Mexico contrasts with the practices of its
NAFTA partners, where a more even balance between public spending at
the state and federal levels is to be found. According to Keith Rosenn, in the
mid-1990s, ‘‘[t]he federal governments of Canada and the U.S. respectively
collect[ed] 40 and 51 percent of total tax revenues.’’80 In Mexico, by contrast,
the federal government collects 84 percent of total tax revenues; at the same
time, federal revenue sharing provides most states with 80 percent or more of
their funding.81 Even with federal revenue sharing, the states are relatively
impoverished in comparison with their U.S. and Canadian counterparts. A
comparison of the levels of state expenditures in Nuevo León, one of Mexico’s
most prosperous states, with state expenditures in Arkansas, Colorado, and
British Columbia shows the relative lack of state funding in Mexico.82
78
CONST. art. 117, x VIII.
79
During the nineteenth century, a number of states of the United States borrowed extensively on
European capital markets to fund public works; in numerous instances the states defaulted on foreign loans in times of recession. See John Wallis et al., Sovereign Debt and Repudiation: The EmergingMarket Debt Crisis in the U.S. States, 1839-1843, National Bureau of Economic Research Working
Paper 10753 (September 2004), available at www.nber.org/papers/w10753 (describing foreign
borrowing, and eventual default, by eight U.S. states and the Territory of Florida).
80
Rosenn, supra note 10, at 38.
81
Id. See also Fernando Renoir Baca Rivera, El federalismo mexicano al inicio del siglo XXI. Problemas, avances y perspectives, 13 PROVINCIA 37, 52 (2005) (stating that the federal government
retains 80 percent of revenues subject to sharing under the LCF, with the states claiming 16 percent and municipal governments 4 percent).
82
State
Population
(millions)
State Appropiations
(U.S. dollars or equivalent)
Fiscal Year
Arkansas (US)
Colorado (US)
British
Columbia (CA)
Nuevo León (MEX)
2.5
4.0
4.2
12.2 Billion
15 Billion
28 Billion
(32.8 Billion Canadian $)
3.06 Billion
2005–2006
2005–2006
2005
3.83
2005
Mexican constitutionalism after presidencialismo
433
3.2. Revenue sharing under Vicente Fox
During the first three years of President Fox’s term (2000–2003), the system
of revenue sharing went virtually unchanged. With the weakening of
presidentialism noted above, calls to reform the revenue-sharing process
gathered support,83 eventually resulting in the creation of the National
Governors Conference (Conferencia Nacional de Gobernadores, or CONAGO).
In September 2003, the governors persuaded President Fox to participate
with CONAGO in the National Budget Convention (CNH) in order to establish
a forum for a dialogue on the reform of fiscal federalism.
The CNH consisted of a number of meetings by working groups. During the
first half of 2004, governors and state officials met with their counterparts
from the federal executive branch to study a number of proposals for revamping federal spending and revenue sharing, tax administration, and other
aspects of federal-state relations.84 The final result of the CNH was a document entitled ‘‘Declaration to the Nation and Agreements Resulting from
the First National Budget Convention,’’85 adopted unanimously by federal,
state, and municipal representatives. The agreements, or acuerdos, which
were included in this document consisted of recommendations for action,
rather than binding agreements. They included proposals to guarantee to
the states a fixed percentage (one fourth) of the value-added taxes collected
by the federal government; to make state shares under the LCF stable, rather
than subject to annual adjustments; to give the states more say in tax administration; and to make other changes.86 Nonetheless, despite the fanfare
(Figures include expenditures for education, which are covered primarily by transfers from the
federal government.) Source: state and provincial web sites (www.state.ar.us, www.state.co.us,
www.bcbudget.gov.bc.ca, and www.nuevoleon.gob.mx). The comparatively large state budget
for British Columbia reflects provincial funding of public health care, while moderate levels of
public health care in the United States and Mexico are federally funded.
83
The complaints were twofold: impoverishment of the states due to the small share allocated to
the states from tax collections, and the fact that the executive branch, which holds considerable
power over the allocations to individual states, could reward states ‘‘friendly’’ to presidential
policies and punish those that were unfriendly. Keith Rosenn notes that similar complaints
have been registered in Canada, where the federal government has used its spending power in
a ‘‘carrot and stick’’ approach that calls for provinces to enact legislation considered appropriate
to federal policies. Rosenn, supra note 10, at 36.
84
See the discussion in Diaz-Cayeros, supra note 68, at 27. As explained by Diaz-Cayeros, the
‘‘decision body’’ of the CNH included six governors, three mayors, and three leaders of state
legislatures. The federal government negotiators included the president, his coordinator for public
policy, and the secretaries of Finance, Interior, and Social Development. The federal Congress also
had two seats on this board, one from the Senate and the other from the Cámara de Diputados.
Id. at 28.
85
Declaratoria a la Nación y Acuerdos de los Trabajos de la Primera Convención Nacional Hacendaria,
available on the CONAGO web site at www.conago.org.mx.
86
Diaz-Cayeros, supra note 68, at 34.
434 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
S. Zamora and J. R. Cossı́o
accompanying the CNH, CONAGO’s efforts have not resulted in any major
change in the federal government’s revenue-sharing system. According to
Diaz-Cayeros, the early results of revenue sharing after the CNH do not
show an increase in state funding.87
Finally, it is of interest to note that the federal-state tensions over revenue
sharing have, at least until this date, followed a uniquely Mexican pattern of
conflict and resolution. The Mexican Revolution notwithstanding, politics in
Mexico tends to play out in structured efforts at give-and-take. This was true
in the smoke-filled backroom days of the PRI, and it continues to be true
today. The formation of CONAGO and President Fox’s willingness to participate in the Convención Nacional Hacendaria have brought the issue of federal
domination of public spending to public consciousness. The fact that these
efforts have not yet produced results may simply be due to the infancy of
the Mexican ‘‘states’ rights’’ movement. To date, Mexico has yet to have its
own Ronald Reagan—a nationally recognized political figure who could
gain control of a political party committed, at least in word if not deed, to
rearranging the balance of federal spending to favor the states.
The states of the United States have more funding than their Mexican
counterparts not because the federal government has conceded revenue to
them but, rather, because the states themselves have collected taxes
that they then retain. Mexico’s system, whereby the states have ceded tax collection and administration to the federal government, will likely keep the
states dependent on federal power, unless the states make a more concerted
effort, either directly, or through the federal Congress, to abandon the current
system of participation.
3.3. Federalism and the judicial power
One other feature of Mexican federalism deserves special mention here, not
because it represents a part of the new constitutionalism but quite the
opposite—because it is a vestige of centralized, federal control for which
reform is long overdue. In Mexico, as in Canada and the United States, a system of federal and state or provincial courts divides jurisdiction based on the
subject matter of the dispute as well as the characteristics of the parties. All
three countries assign exclusive jurisdiction over certain matters to federal
courts, and concurrent jurisdiction over other matters. Mexican federal
courts, however, assert a broad authority over the interpretation of state
laws that is not to be found in their counterparts in Canada or the United
States. The Mexican amparo law,88 considered fundamental to the protection
of constitutional rights, gives federal courts original jurisdiction over any petition filed by any private person, whether an individual, corporation, or group,
87
88
Id. at 32.
‘‘Ley de Amparo Reglamentaria de los Artı́culos 103 y 107 de la Constitución Polı́tica de los
Estados Unidos Mexicanos,’’ D.O., Jan. 10, 1936, as amended.
Mexican constitutionalism after presidencialismo
435
challenging the constitutionality of any final act or decision taken by an official or agency, at any level of the government, federal, state, or local, that
would violate a constitutional right.89 Moreover, any official act that violates
a law is considered to infringe a constitutional right, by violating the due
process clauses of articles 14 or 16 of the Mexican Constitution.
The federal courts’ amparo jurisdiction has certainly prevented abuses of
governmental authority, but the procedure has also contributed to federal
control over the development of state law. Since final judgments rendered
by a state court, federal court, or administrative court are considered official
governmental acts, a decision by a state court interpreting a state law may
be overturned by a federal court under the procedure known as amparo directo. Under amparo directo, if a federal court finds an error in a state court’s
interpretation or application of state law, the federal court may substitute
its own interpretation and order a reversal of the state court judgment.
There is much to criticize in modern amparo procedure, but for the
purposes of this essay, we will focus on just one problem that is symptomatic
of the transition to true federalism in Mexico: under amparo directo, the
Mexican federal courts have supplanted the state courts as authoritative
interpreters of the states’ own law.90 Since the opinions of the federal
appellate courts (the Supreme Court, and circuit courts of appeal) are the
only judicial opinions that are regularly published and available in Mexico
(through publication in the Semanario Judicial de la Federación), as a practical
matter lawyers and judges look only at federal interpretations of state laws,
including the state civil codes.
Amparo directo also shows a distrust of the efficiency and honesty of state
judicial systems; while this may be justified in some jurisdictions, the overlay
of federal control is detrimental to the improvement and empowerment of
state judicial systems. Unfortunately, attempts to reform the amparo law
have met considerable opposition.91 If one adds to the preceding criticism
the congestion of federal court dockets, due to the filing of thousands of cases
89
On amparo generally, see MEXICAN LAW, supra note 1, at 258–274
90
Amparo directo in the Mexican federal courts contrasts dramatically with the ‘‘Erie Doctrine’’
adopted by the U.S. Supreme Court in Erie Railroad v. Tompkins, 304 U.S. 64 (1938), which
held that, except in matters governed by the U.S. Constitution or federal laws, federal courts
must always apply the applicable state law as interpreted by state courts. As a result of Erie,
U.S. federal courts must yield to state court opinions interpreting state law and would not presume to overrule those interpretations.
91
Several years ago, the Mexican Supreme Court commissioned a group of experts to study the
amparo law and propose an amended version of the law that would simplify amparo procedures;
the group was also to refine amparo jurisdiction in order to concentrate more on the protection
of fundamental constitutional rights and human rights, including rights emanating from treaties
to which Mexico is a party. The commission produced a draft report, which has been placed before
a Senate committee, but there appears to be little likelihood of adoption of the recommendations
for reform in the near future. See the discussion in MEXICAN LAW, supra note 1, at 260–261.
436 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
S. Zamora and J. R. Cossı́o
that are not truly protective of constitutional rights, then amparo reform
should be a priority in improving judicial administration in Mexico.
4. Conclusion
Within the past twelve years, the separation of powers between the executive,
legislative, and judicial branches of government—a fiction of Mexican constitutionalism throughout much of its history—has finally become a reality. The
legislative and judicial branches have acquired power and relevance in direct
proportion to the loss of power by the executive. The Mexican Congress and
the courts (especially the Supreme Court) are still learning how to operate
under these new conditions. These institutions find themselves in a period
of dynamic uncertainty and are still learning how to work effectively within
a system that has been transformed rapidly from authoritarian control to
one in which powers are dispersed among numerous agencies and actors.
One casualty of the change in political regimes has been the loss of
consensus in carrying out necessary legal reforms. The lack of political consensus in a multiparty system poses a special threat to the effective separation
of powers between the executive and legislative branches, as discussed
above.92 If one political party were to win both the presidency and a majority
in both houses of Congress in the 2006 elections, the current political impasse
would dissipate—but this outcome seems highly unlikely at this time. More
probably, the next Mexican president and the next Congress will have to
invent legal and political mechanisms to accommodate multiparty
democracy.
The political impasses generated in the post-presidencialismo period have
also posed challenges for the Mexican Supreme Court, itself newly empowered
as a result of the judicial reforms that began in 1994. The Mexican Supreme
Court faces issues of an unprecedented nature and complexity, yet the Court’s
jurisdiction still requires it to review thousands of cases each year, many
times the workload of the Canadian and United States Supreme Courts.93
With this workload, it is impossible for the Court to issue insightful, welldrafted opinions in any but the most important cases. Further refinement of
the Mexican Supreme Court’s jurisdiction must occur if the Court is to fulfill
its role as authoritative interpreter of legal and constitutional issues.
Finally, Mexico’s road toward a decentralized, effective democracy appears
directed toward a renewed federalism—with an increase in the power of the
92
93
See text accompanying note 13 supra.
The Mexican Supreme Court receives approximately 3,000 cases for review each year and
maintains a docket of about 5,000 cases. By contrast, the United States Supreme Court receives
a similar number of cases each year, but only decides 80 to 100 of them, the remainder being dismissed on grounds of certiorari. The Mexican Supreme Court does not labor under a certiorari
system, and all cases that are not sent to the lower courts must be decided by the Supreme Court.
Mexican constitutionalism after presidencialismo
437
Mexican states to determine their own political and economic outcomes, so
long as they do not overstep the boundaries set by the Mexican Constitution.
Increased ‘‘states’ rights’’ could help defuse the high-stakes battles over
control of the federal government, by dispersing more powers among the
federal government and the states. The federal monopolization of public
spending has prevented this from occurring, and little has taken place during
the Fox administration to change this. As Mexico becomes more accustomed
to nonauthoritarian government, there will be increased pressure from the
states to control the most important aspect of government—the power to
tax and the independence to decide what goods and services should be provided to a state’s residents.