I Introduction

Recent debates on public law have been analyzing developments that were difficult to imagine two decades ago, when democratic constitutionalism was expanding and reigned undisputed at the level of normative ideals. As the literature has underscored, the world has been a pasture for leaders that engage in anti-pluralist, polarizing, illiberal politics in recent years. On the basis of often massive electoral victories, populist politicians deploy policies that are against migration, globalization, environmental sustainability, and equality. They pose a distinctive challenge to democracy because, far from denouncing democratic rule, they claim to represent a more perfect instantiation of it. They pose a distinctive challenge to constitutionalism because, in contrast to the authoritarian leaders of the past, they do not set aside constitutions but rather use – and abuse – them, gradually emptying them of their substance. They pose a distinctive challenge to the rule of law because they extensively draw on legal means to advance their policies. They practice government per lege in an effort to mask performances ever more distant from government sub lege.

Latin America partakes in these familiar trends challenging the rule of law. We find paradigmatic examples in Brazil, El Salvador, and Mexico. In Brazil, Jair Bolsonaro was elected on an “anti-politics” platform that openly advocated hatred against indigenous populations, Afro-Brazilians, and civil society organizations.Footnote ¹ His government brought together military officers, neoliberal tycoons, and religious activists; despite scarce support for his policies in Congress and significant judicial drawbacks, he partly advanced his agenda.Footnote ² Mimicking Donald Trump, Bolsonaro spent months aggressively attacking the electoral authorities, proclaiming that he would not accept the results of the November 2022 election (which he lost), and urging the army and his supporters to resist the results – something they actually did, blocking the roads in many parts of the country and mounting a physical assault on Congress and the Supreme Court.Footnote ³

In El Salvador, Nayib Bukele similarly gained office by portraying himself as the alternative to traditional corrupt political parties, using new styles of political communication and promising to meet effectively the needs of the population.Footnote ⁴ His administration has been marked by gross abuse of the state of exception, nullification of presidential term limits, destruction of judicial independence, and plain irrationality – including its decision to make Bitcoin legal tender and undertake investments in this cryptocurrency that have been ruinous for the country.Footnote ⁵

In Mexico, Andrés Manuel López Obrador (popularly known as AMLO) ran on a leftist platform, only to deploy, once in office, policies contrary to progressivism: militarization, anti-migration, efforts to control the judiciary and eliminate independent agencies, defunding of public services, strict fiscal policy, and daily broadcast attacks on all sectors of society, including feminists, academics, scientists, the press, and civil society organizations.Footnote ⁶ His policies are far from not only progressive liberal democratic politics but also left-wing populism as practiced in the past in Latin America by leaders such as Juan Domingo Perón or Getulio Vargas. Although authoritarian, such populism was state-friendly and inclusive of industrial workers and popular masses, unlike the state-shrinking drive and almost exclusive reliance on cash transfers (as opposed to structural redistribution) that marked López Obrador’s policies.Footnote ⁷

A focus on Latin America, however, invites us to unsettle and refine prevailing narratives of constitutional retrogression. In Latin America, many of the current trends are not unprecedented. The region has long dealt with challenges to the “constitutional trinity” of human rights, democracy, and the rule of law,Footnote ⁸ including problems that derive not from direct violations but from abuse and covert undermining of these goals. Sure, these problems were until recently framed as temporary problems, to be overcome through the process of progressive consolidation of democracy – a linear, happy-ending frame – whereas now, in parallel to challenges elsewhere, they are portrayed as chapters in a narrative of retrogression running in the opposite direction. Nonetheless, as a result of Latin America’s long-standing familiarity with these challenges, regional constitutions include a wealth of innovations intended to counter them. While countries that perceive themselves as mature democracies are wondering what sort of reforms could help contain or reverse current developments, in Latin America those reforms have already been attempted, and the relevant contemporary agenda is therefore to inquire what has worked, and what has not, and why.

This chapter’s aim is to introduce and further invite assessments of whether the institutional solutions typically embraced by contemporary Latin American constitutions make a difference in fighting contemporary patterns of rule-of-law violations and what sort of difference they make.

The chapter advances the preliminary hypothesis that Latin American last-wave constitutions make a positive difference. Many features of constitutional design are arguably helping to sustain democracy and the rule of law in the region in times of authoritarian, neopopulist onslaught, setting the ground for the middle-term reinvigoration of democracies and rule-of-law guarantees. The analysis suggests, however, that these features help fight erosion in a relatively ineffective way because most of them are reactive, ex post defenses, and overcharge the judiciary. A more effective, systemic prevention of rule-of-law erosion would require the design or reinforcement of preemptive solutions, both in the domain of rights and in the domain of the organization of powers.Footnote ⁹

There are grounds for confirming this hypothesis in various countries – such as Brazil, Ecuador, Colombia, or Bolivia – where periods of hyperpresidential rule have been reversed. The focus of this chapter, however, will be exclusively on Mexico, in order to more fully ground the analysis. Among the many patterns of rule-of-law undermining currently underway, this chapter concentrates on two episodes and the reactions to them on the basis of Mexico’s Constitution—the onslaught against the National Electoral Institute as the arbiter of electoral fairness and the enhancement of the military’s role in society, particularly in relation to public security and the economy.

In pursuing this analysis, the chapter first recalls historic trends with regard to democracy and the rule of law in Latin America. Second, it provides an overview of the standard institutional tools contained in Latin American constitutions that can be put at the service of the rule of law and other normative ideals. Third, it describes rule-of-law undermining patterns that illustrate the current situation in Mexico and explores how the Constitution is used to resist them. Throughout, the chapter draws inspiration from Shaffer and Sandholtz’s five-dimensional conception of the rule of law, which assesses whether (1) power is ex ante subject to limits and accountability mechanisms; (2) individuals have a degree of predictability as to how power is exercised; (3) individuals can question and respond to the exercise of power; (4) authorities engage in reason-giving; and (5) there is proportionality in a set of distinct state responses.Footnote ¹⁰ These dimensions provide a background grammar for assessing current challenges and the strengths and weaknesses of available constitutional responses.

II The Long Quest for the Rule of Law in Latin America

In the countries that experienced the “third wave of democratization” – those in Latin America and Central and Eastern Europe – constitutional democracy has a contorted history. The first Latin American constitutions were passed in the early years of the nineteenth century, after independence revolutions similar to those that had taken place shortly before in the United States and France. As Roberto Gargarella has observed, these first regional constitutions alternate or combine designs that embody three distinct understandings of individual autonomy and collective self-rule – liberal, conservative, and radical.Footnote ¹¹ The second half of the nineteenth century saw the stabilization of a “constitutionalism of fusion” based on a long-lasting liberal-conservative pact. This pact supported checks and balances, but it tilted in favor of executive power; federal states with very strong centers; religious tolerance, though without depriving the Catholic Church of its privileges; and bills of individual rights, without any social precommitments, at a time of increasing social unrest.Footnote ¹²

While for some time constitutions embraced French-inspired systems of political review of legislation, in the second half of the nineteenth century most countries established systems of decentralized judicial review allowing for the nonapplication of statutes in individual cases – with additions, like the amparo writ in Mexico or certain modalities of abstract review in Colombia and Venezuela. The hybrid legal traditions of Latin America thus progressively developed, with bodies of civil, criminal, commercial, and procedural law codified and applied within structures typical of the civil law tradition, and constitutions featuring presidentialism, federalism, and decentralized review, much in the style of the United States.Footnote ¹³

However, as in other countries, constitutions had long been operating more as political documents than as legally enforceable ones. The historical dockets of Latin American supreme courts contained some important constitutional cases, but law enforcement consisted for the most part in enforcing codified legislation. Constitutional rule was seriously compromised in most countries through abuse in the form of emergency states, civil wars, and military coups.Footnote ¹⁴ As reflected in popular sayings, academic literature, and literary works, overt or covert noncompliance with the law has been widespread and often normalized in Latin America.Footnote ¹⁵ As García Villegas remarks, for some, these attitudes can be ultimately traced back to colonial times, during which the formula se acata pero no se cumple (complied with but not fulfilled) served as a means to adapt the law that came from the Iberian peninsula to the very different conditions of the colonies; others associate it with the influence of iusnaturalism, which makes the validity of the law conditional on its moral weight – an attitude similar to the perspective of those who find no reason to obey the law under conditions of gross socioeconomic injustice, where the state is authoritarian or itself disobeys the law.Footnote ¹⁶ Constitutions and laws were, therefore, not irrelevant, but existed in a medium where flexibility and negotiation were common, in constant interaction with rules of other sorts.

In the twentieth century, a diversified political and constitutional setting coexisted with widespread ambivalence about the cause of liberal democracy.Footnote ¹⁷ As Javier Couso has explained, until the decades of the 1970s and 1980s, both the Right and the Left in Latin America held constitutional democracy in considerable disdain.Footnote ¹⁸ For the Left, highly influenced by Marxism and the Cuban Revolution, little was to be gained from the establishment of liberal constitutions and political democracy unaccompanied by economic transformation:Footnote ¹⁹ constitutional limits on democratically elected governments – such as the right to property – were benefits for the conservatives.Footnote ²⁰ For the latter, in turn, “order and progress,” and a concern for the preservation of public and national security, were always paramount, which often translated into support for military coups and strong presidents.Footnote ²¹

III Contemporary Latin American Constitutionalism and the Exercise of Power

Everything changed in the 1980s and 1990s. Couso remarks that, at that time, both the Left and the Right changed their views on liberal democracy and the rule of law. In the case of the Left, the atrocities suffered at the hands of the military dictatorships led to an appreciation of legal institutions such as habeas corpus and due process guarantees.Footnote ²² In the case of the Right, free-market ideology was important; from the 1980s onward, the idea that the rule of law, well-defined property rights, judicial independence, and effective state apparatuses were indispensable for economic growth became central to Latin American conservatism.Footnote ²³

In this environment, emerging from different circumstances but all in need of relegitimation, the countries of the region underwent a wave of political transformation, regularly accompanied by the making of new constitutions (Brazil in 1988, Colombia in 1991, Paraguay in 1992, Peru in 1993, Argentina in 1994, Venezuela in 1999, Bolivia in 1994 and 2009, Ecuador in 1998 and 2008) or the reform of existing ones (Costa Rica in 1989, and Mexico on many occasions over the last three decades).

The new and reformed Latin American constitutions have a significant collection of common traits and generally evince a commitment to organize the exercise of power within new parameters. While commentators have pointed out that the degree of innovation in the domain of power structures is smaller than what we find in declarations of rights – to the detriment of the underlying transformative project – historical designs have not survived untouched.Footnote ²⁴

A first area of (modest) innovation implicating power structures is the regulation of the relations between the executive and legislative branches: all countries retain a presidential system of government, but adjustments have been made to reinforce the legislative branch, and many executive attributions have been transferred to independent agencies and fourth-branch institutions.Footnote ²⁵ Moreover, constitutions introduce mechanisms of direct or participatory democracy (popular consultation, presidential recall, popular legislative initiative, and sometimes participatory budgeting).Footnote ²⁶ A second area where more robust changes have occurred is the design of the judiciary, which now enjoys a system of self-government under Judiciary Councils; a broad menu of responsibilities that diversifies citizens’ channels for accessing justice; and, in some countries, an architecture that features several apex courts, including electoral courts.Footnote ²⁷ The granting of constitutional status to international human rights, moreover, gives the doctrines of the Inter-American Court of Human Rights (IACtHR) a permanent role in day-to-day constitutional dynamics within Latin American countries, implicating rule-of-law practices.

Innovation is even greater when it comes to fundamental rights. In his portrayal of last-wave regional constitutions, Rodrigo Uprimny identifies ten major changes: redefinition of national unity, replacing traditional homogenization drives with recognition of diversity and the foundational status of indigenous peoples; elimination of the residues of religious establishment and guarantee of religious freedom; protection of disadvantaged and discriminated groups, including indigenous and black communities, which are often granted special rights or jurisdiction; generous recognition of rights, including social rights, and new categories of rights-holders, like nature, groups, or communities; great openness to international human rights law, which often operates as a block in conjunction with the constitution; transformation of the system of legal sources, resulting in statutory law now coexisting with other sources of normativity; strong commitment to equality, including affirmative action; introduction of umbrella clauses that synthesize the foundations of the constitutional project, like the “Social and Democratic State” clause or varieties that go beyond European postwar models; inclusion of principles and tools that evince deep concern for the efficacy of rights; and references to the economy, even if heterogenous and irreducible to a single message.Footnote ²⁸

IV Undermining of the Rule of Law in Contemporary Mexico

The fact that democracy has for three decades remained the only road to political and legal authority in Latin America is in itself an immense, historic watershed.Footnote ²⁹ In general, civil society has been revitalized, there is widespread public recognition of social and cultural pluralism, and the constitutionalism of rights has given the law a centrality it had never enjoyed before in the region.Footnote ³⁰ There has been an abundance of developments around new vindications (social rights, equality, environmental, and indigenous rights), which have supported new forms of adjudication, including structural rulings, innovative remedial practices, and continuous interaction between national courts and the IACtHR.Footnote ³¹ Political dynamics have embraced a wider assortment of legitimate social claims, often outside the frame of traditional party politics.Footnote ³²

However, numerous problems remain. In recent times, the persistence of unacceptable levels of inequality,Footnote ³³ public and private violence,Footnote ³⁴ inappropriate coverage of basic needs,Footnote ³⁵ and the ineffectiveness and corruption of many institutions have eroded the status that constitutional democracy and the rule of law had gained in the region.Footnote ³⁶ New political trends have developed in response. The political projects of presidents Rafael Correa in Ecuador (2007–17) and Evo Morales in Bolivia (2006–19) had an egalitarian thrust along with the strong personalism that dominated their administrations. The political projects of presidents Bolsonaro in Brazil and Nayib Bukele in El Salvador, by contrast, cater to the worst instincts of electorates that are now prepared to support an anti-politics style and policies that sacrifice liberties and the rule of law for the benefit of security as an act of revenge against the so-called traditional political class.

What these projects all have in common is the expansion of presidential powers, and the consequent distaste for constitutionalism understood as the ideal of limited government and protection of the rule of law. While they do not reject the constitution per se, since upholding a permanent electoral style is crucial to them, they relativize the division of powers, the idea that the rulers must strictly abide by the rules that define the contours of their powers, and the idea that government must give appropriate reasons for actions – all of which are central to the rule of law. Because of their style of governance, which pits groups of people against each other, these administrations erode respect for pluralism and civil liberties. Because of their personalistic quest for concentrating power, they undermine the rule of law.

In what follows, this chapter focuses on some of the developments underway in Mexico, which provide a paradigmatic illustration of such neo-authoritarian dynamics. Mexico has traced a singular path of constitutional evolution. It transitioned to democracy while maintaining its 1917 Constitution, which has nonetheless undergone more than 800 amendments, especially from the 1990s onward. While the Mexican patterns of accelerated reform pose important problems, they have also brought the country in line with the common features of contemporary constitutionalism in the region.Footnote ³⁷ Thus, Mexico has a generous declaration of rights, which includes international human rights and enforceable social rights; a sophisticated model of division of powers, with an assortment of fourth-branch institutions; emphatic constitutional recognition of indigenous nations and a model of moderate legal pluralism; channels of participatory democracy; and a reinforced judicial branch, even if the traditional amparo complaint procedure is hardly sufficient in ensuring equal access to justice for all.

Within this framework, Mexico has held indisputably reliable elections.Footnote ³⁸ Yet, important wider problems persist. They include massive deadly violence, which, following state responses to drug trafficking, has increased dramatically since the presidency of Felipe Calderón, who launched a “war against drugs” at incalculable human, political, and legal cost – a policy that has been continued, with less energy, by his successors.Footnote ³⁹ Other problems include a problematic Gini coefficient; a vitiated political class; very weak provision of public services; and patterns of judicialization that, despite being progressive, do not benefit the majority of the population.

Against this background, in the 2018 election Mexicans gave the presidential seat to Andrés Manuel López Obrador, an old-style politician who was once a member of the Partido Revolucionario Institucional (PRI) and held office as mayor of Mexico City at the turn of the century. He ran twice for the presidency (in 2006 and 2012) under the party that he founded after leaving the PRI (named MORENA). He finally won by a massive vote in 2018, supported by millions who, fed up with the frustrations of standard politics, gave their confidence to the only candidate that seemed to promise real change. In the campaign, he famously promised “abrazos, no balazos” (hugs, not bullets), which sounded like a commitment to find a durable solution to the problem of violence in the country.Footnote ⁴⁰

On gaining office, however, López Obrador took a completely different route. He has applied a strictly populist rulebook and has deployed a large number of reforms that are at odds with progressive politics. His policies and daily gestures are problematic for fundamental rights and respect for the rule of law.

President López Obrador’s distaste for pluralism is visible in his continuous criticisms of civil society organizations, scholars, scientists, journalists, lawyers, judges, feminists, and even the entire middle class (whom he disparages as selfish and “aspirationist”).Footnote ⁴¹ His daily morning shows (las mañaneras) are an occasion to name and shame an unending succession of individuals and groups. The promotion of an insurmountable divide between “them” and “us” – between “our enemies,” “the conservatives,” “the corrupts,” on the one hand, and “the people,” on the other – is explicit and repeated incessantly every day.Footnote ⁴² These attacks have not remained at the level of words but have been accompanied by police reform. The public research centers that were not legally autonomous, for instance, have lost their main sources of funding and have seen partisan individuals appointed as directors.Footnote ⁴³ The National Research Council has suppressed several scholarship programs,Footnote ⁴⁴ cut research stimulus to private university researchers, reformed applicable regulations several times, and denounced scientists on criminal grounds merely for being critical.Footnote ⁴⁵ Civil society organizations, for their part, have endured a reform in their accounting duties that makes it extremely difficult for them to receive donations and other sources of funding on which they are heavily dependent.Footnote ⁴⁶

In addition, AMLO has pursued a policy of radically shrinking state capacities, with serious consequences in several domains, most notably health and education. Under the banner of austerity, the president has cut back on the funding of research and science, educational programs, health and daycare, and ordinary expenses throughout the entire administration, leaving many departments without the means to fulfill their basic responsibilities and generally nurturing state arbitrariness.Footnote ⁴⁷ In the domain of health, the creation of the INSABI (Instituto de Salud para el Bienestar) to replace the Seguro Popular (a program for which people outside the other social security subsystems could self-enroll) did not succeed, leaving millions without coverage.Footnote ⁴⁸ The president decided to rescind existing contracts with pharmaceutical suppliers, yet the inability to secure new ones left the health system in a state of chronic shortage of medicines.Footnote ⁴⁹ The conflict this caused with the parents of children suffering from cancer, who were left without medicines, is only one visible manifestation of the seriousness of the situation.Footnote ⁵⁰ In the field of education, the devastating effects of the pandemics were not addressed, twenty-two programs have been suppressed,Footnote ⁵¹ and the education secretary has been placed under the direction of two people with no expertise.Footnote ⁵²

True, the president has raised the minimum salary and expanded cash transfer programs – approximately 30 percent of the population receive some kind of direct, nonconditional cash benefit.Footnote ⁵³ Aside from these transfers, however, and the ever-growing sums assigned to the army,Footnote ⁵⁴ an immense amount of public funds go to Pemex and other projects associated with fossil fuel (like the construction of a refinery in Dos Bocas and the acquisition of another one in Texas) and to flagship works of infrastructure like the Maya Train (traversing ecosystems of great environmental value) or the Felipe Ángeles Airport, not to mention the cancellation of the already half-built Texcoco Airport at a cost of close to USD 5,700 million.Footnote ⁵⁵ Under his administration poverty has stabilized,Footnote ⁵⁶ despite a context of relative economic normalcy: the country accumulates gains from nearshoring; the money transfers sent by the US Mexican diaspora have grown; and the currency has not depreciated, thanks to the orthodox monetary policy followed by the government.Footnote ⁵⁷

Overall, AMLO’s challenges to the rule of law are numerous, as the following two sections illustrate. The president has repeatedly expressed a deep distaste for all things legal. He has portrayed the law as an instrument of the ancien régime and legal requirements as hurdles in the way of attaining the “Fourth Transformation of Mexico.”Footnote ⁵⁸ A painful, paradigmatic illustration of this approach to the law is the executive decree that declared public works of infrastructure (such as the construction of the Maya Train) to be “national security” issues, obliging all administrative units to issue the corresponding permits notwithstanding any statutory norm to the contrary.Footnote ⁵⁹

An abundance of developments reveal tensions along the five dimensions that Shaffer and Sandholtz identify as defining a goal-oriented understanding of the rule of law. To illustrate some of them, this chapter focuses on two clusters of developments. The first is the frontal attack on the National Electoral Institute, the independent agency that remains the key guarantor of electoral regularity. The second is the militarization of state functions – first, public security, and later a much wider set of state responsibilities, including the provisions of public services and the construction of public works.

All of them reveal a willingness to eliminate checks and balances; a general disregard for the idea of reason-giving; a decline in the predictability of public action since many measures are processed speedily (with or without the intervention of a dominated legislature), often in open violation of legal requirements. As in other situations of autocratic legalism, the pattern is gradual, with the overall impact being greater than the sum of its parts. Intertwined with that pattern, however, is degree of legal contestation that has no precedent in Mexico. In the face of inaction on the part of the political opposition, many agents are using instruments and spaces that were unavailable in previous historical instantiations of rule-of-law disregard.

V The Quest against Electoral Reliability

The construction of a strong independent authority capable of organizing clean elections and the reform of the electoral system based on administrative rule of law was the keystone of the Mexican transition.Footnote ⁶⁰ The country was not emerging from a military dictatorship and it had never formally abolished elections. However, under the political system progressively installed by the PRI, elections were rigged and won by the person designated by the president. The PRI was to a certain extent inclusive of various social groups and provided a system of elite rotation.Footnote ⁶¹ It also provided peace and stability in a country that had endured significant turmoil during the nineteenth century.Footnote ⁶² But it was not a democracy: there were formal elections, but no actual rule-of-law preconditions to ensure free voting and political competition.

When it ultimately became impossible to maintain the system without changes, several constitutional reforms introduced electoral competition and progressively built independent electoral authorities.Footnote ⁶³ An institution called IFE (Instituto Federal Electoral) was created in 1990, together with parallel institutions at state level. In 1996, the IFE gained complete independence from the executive, and in 2013 a constitutional reform renamed the institution INE (Instituto Nacional Electoral) and gave it more powers over the organization and monitoring of elections at state level. The institution soon established itself as one marked by professionalization (its employees are career officials) and a model of election organization and supervision that included extensive input from the citizenry and was grounded in administrative rule of law. Thus, the voting booths in Mexico are managed by citizens who are selected on the basis of their birth month, trained before the elections by the INE, and who count the votes and make the results public before taking them personally to the INE offices. The INE General Council’s members do not need to be lawyers.

The INE is a huge institution responsible for many tasks: it issues voter ID; it organizes the elections and trains the citizens who run the voting and do the counting; it reviews whether candidates satisfy the conditions of eligibility and monitors observance of legal requirements concerning access to and use of funding and access to mass media space and time during campaigns and precampaigns; and it supervises certain aspects of political party life outside electoral processes.

Despite winning 53.19 percent of the vote in an election that, by all accounts, was impeccable, AMLO soon leveled fierce criticism at the INE – initially, as part of a broader campaign against all independent agencies as well as the judiciary. The attacks on INE, however, continued to grow and, over time, reached astounding levels. (The 2006 election had been narrowly won by Felipe Calderón, and from that moment AMLO became disillusioned with the INE, despite the great credibility of the system and the political alternation in the presidency.) One of the more worrying episodes occurred in April 2021, when the INE, applying existing law, cancelled the candidacy of Félix Salgado Macedonio in the Guerrero gubernatorial election because he failed to report on his precampaign expenditures (paid in Mexico with public money).Footnote ⁶⁴ Salgado then mounted a demonstration in front of the INE, which included the presentation of a huge coffin and the issuing of assassination threats against the INE president; threats were also made against INE counsellors, whose home addresses Salgado urged his followers to locate. Salgado (who had also been denounced for several instances of sexual abuse) was the candidate AMLO wanted to win in Guerrero, and the president did not abandon him. He rather defended Salgado, saying that the INE should have imposed a fine but not prevented him from running.Footnote ⁶⁵ In the end, MORENA selected the daughter of Salgado Macedonio as the candidate – and she won the election. The incident gave the impression that the president was happy to validate the most egregious attacks on institutions (and persons) if there were political gains in return, in violation of basic rule-of-law norms.

In November 2021, the MORENA-controlled Congress approved the budget for the year 2022, and it did not assign to INE the funds that it had precalculated. In particular, the INE was not given the funds necessary to organize the presidential recall consultation that the president had already scheduled for August 2022 to forecast his popular support. The INE then filed two constitutional claims before the Supreme Court: one to protect its counselors from incurring administrative or criminal liability if they organized the recall in disregard of legal parameters for lack of money to comply with them; and the other denouncing the unconstitutionality of the budgetary cut.Footnote ⁶⁶ In February 3, 2022, the Supreme Court declared that the INE could and should organize the presidential recall as best it could with existing funds and the reduced budget passed by Congress,Footnote ⁶⁷ and on June 1, 2022, it declared the budget cut to be invalid.Footnote ⁶⁸

At the time, President López Obrador had already decided to submit the proposal of a constitutional amendment to change the existing architecture of the electoral system. The reform proposed five main changes: the transformation of INE into a National Institute of Consultations and Elections, headed by counselors elected by popular vote from candidates selected by Congress, the executive, and the Supreme Court; a reduction in the amount of public funds received by political parties; electronic voting; a reduction in the number of members of Congress, state legislatures, and municipal councils; and changes in the size of the electoral districts for the election of deputies by proportional representation.Footnote ⁶⁹ While some of these changes were reasonable and not particularly dangerous in rule-of-law terms, they were packaged with the first proposal, the risks of which unbalanced any other potential gains. The proposal to elect counselors by popular vote would have allowed the government to remove all existing counselors and bring ordinary party politics into an institution that should operate as a neutral electoral arbiter. It would have generated an “adverse selection” effect, in view of the trouble associated with the need to launch a political campaign to be an electoral counselor, after being included on a short list largely rigged by the executive (given its control of the legislative branch, and its unpredictable future influence on the Supreme Court).Footnote ⁷⁰

In November 2022, this reform was discussed in Congress against a background of high political contestation. A popular demonstration in support of the INE, called by a heterogenous assembly of civil society groups, took place on November 13, and its success surpassed everyone’s expectations. The streets of Mexico City around the Monument to the Revolution and Reform Avenue were filled by an organized throng of thousands of families and groups of citizens, and the same occurred in the main cities outside the capital.Footnote ⁷¹ A few days before, the president had asked his followers to “allow” the demonstration, while qualifying those planning to attend as “racist” and “classist.”Footnote ⁷² The day after the march, clearly upset, he summoned his followers to attend a “response” demonstration on November 27 “to celebrate the gains of four years of Transformation” – which also was a success.Footnote ⁷³

The constitutional reform did not pass, however. Having lost the capacity to amend the constitution alone after the results of the intermediate 2021 election, MORENA was unable to secure the necessary support by negotiating with the other political parties, which felt the pressure of the popular march.Footnote ⁷⁴ A few days later, however, on December 13, 2022, with the holiday season about to start, the president made a surprising move and submitted to Congress the so-called Plan B electoral reform. This contained a proposal to amend six statutes (something MORENA could do by a simple majority vote). At its core, it involved a radical shrinking and weakening of INE as an institution, to the point of compromising its ability to organize and supervise elections under the rule of law.Footnote ⁷⁵

Several parts of the project are perfectly acceptable, even to be welcomed, such as the overdue guarantee of the right for people in prison to vote, the regulation of online trials, the simplification of complaint procedures, the need to implement gender parity in elections for state governors, and the restructuring of the calendar for federal and state elections. Yet other proposals are sensitive, and some deeply troubling. In this last category are the elimination of the rule that had so far prevented individuals holding public office (and in receipt of a salary paid with public money) from engaging in political advocacy in electoral campaigns; the elimination of the INE administrative apparatus across the country, endangering electoral IDs and the training of citizens who serve on election day; the reorganization of the INE’s internal units, with the immediate removal of the executive secretary, the dissolution of the trusts guaranteeing the salaries of INE employees (which would now depend on annual budgetary allocations); and the provision (tailored to “save” a future Salgado Macedonio) that being sanctioned by the INE for violating electoral law is no impediment to run for elections (only a criminal conviction is).

Plan B was published in two steps. After the publication of a first package, more than one hundred constitutional controversias were filed by municipalities, which maintained that their powers of self-organization were curtailed, and by actors, who argued that the reform affected electoral processes already underway, thus disregarding the prohibition on making amendments to electoral rules in the ninety days preceding an election.Footnote ⁷⁶ Before the publication of the remaining package of reforms, civil society organizations summoned a new march in defense of the vote on February 26, 2023, with great success. This time, people gathered at the Zócalo, the tectonic power center in Mexico, and available estimates put the attendance in Mexico City and other cities across the country at approximately 700,000.Footnote ⁷⁷

On March 4, 2023, however, the second package of Plan B was published. A few days later, the INE filed two controversias against the reform and two groups of Congress members filed acciones de inconstitucionalidad.Footnote ⁷⁸ As the demonstrators in the February march made clear through their banners and chants, protection of democracy and the rule of law would depend on the Supreme Court.

AMLO has striven to undermine the Court using all means. He has taken advantage of the opportunity to appoint four justices, two of whom are unconditional supporters, while the other two have proven to be fairly independent. Yet, for a statute to be declared void in abstract review in Mexico, and disappear from the books, there must be a qualified majority of eight votes – a threshold difficult to pass in any scenario, but specially so in the current climate. Further, for four years the presidency of the Court was held by Arturo Zaldívar, who was quickly criticized for cultivating an excessive closeness to the government. Under his presidency, the Court delayed decisions in many politically sensitive cases.

In the electoral domain, however, the Court’s decision-making is subject to time limits. And its performance as regards Plan B has been admirably solid, even in the face of all imaginable kinds of pressure. In admitting the cases, the Court thus precautionarily suspended the effects of the reforms,Footnote ⁷⁹ to which MORENA “responded” the next day by filing a bill of constitutional amendment for the entire judiciary to be selected by popular vote.Footnote ⁸⁰ And in May and June 2023, applying precedents developed and regularly enforced since 2005, the Court invalidated the two segments of Plan B for reasons everyone in Mexico had witnessed in the media: the flagrant disregard of the requirements safeguarding legislative procedure,Footnote ⁸¹ without any need to assess the content of the statutes. This came as a relief to many, but the government again responded by redoubling its attacks on the judges.Footnote ⁸²

VI The Militarization of Public Life and State Functions

From the 1940s and throughout the rest of the twentieth century, in contrast to the situation in other countries in the region, the Mexican army was securely subordinated to civil authorities. It was in this subordinated quality that the army was involved in the dark episodes of the “dirty war” of the 1970s.Footnote ⁸³ Yet, during the gradual transition to democracy of the 1980s and 1990s, the military was generally held in high regard by the population – which would associate it with assistance during natural disasters, among other tasks of that sort.

The situation changed when Felipe Calderón won the presidency in 2006. Some two years later, although the matter had been mentioned during his campaign, Calderón decided to launch a “war against drugs” that put the army on the streets in several parts of the country without any legal basis for doing so. In December 2017, during the presidency of Enrique Peña Nieto, and partly responding to demands from the army itself, aware of the absence of legal grounds for its street-level operations, Congress enacted the Interior Security Act (Ley de Seguridad Interior), which enabled military personnel to participate alongside the police in ordinary tasks of maintaining public security in the country’s public spaces.Footnote ⁸⁴

The national ombudsperson and several state counterparts filed challenges against the Interior Security Act before the Supreme Court, which declared it invalid in November 2018.Footnote ⁸⁵ The Court found a violation of Article 21 of the Constitution, which allowed for army participation only in tasks associated with national security; the statute wrongfully allowed for army participation in ordinary daily tasks of public security, which had to be fulfilled by ordinary political forces.Footnote ⁸⁶

By the time AMLO became president, the degree of damage caused in the country by the “war against drugs” was already incalculable.Footnote ⁸⁷ Everybody expected a change of strategy from López Obrador, who during the campaign had advocated for the massive problems of violence to be managed “with hugs, not bullets” (abrazos, no balazos). Soon after taking office, however, in March 2019, with the cooperation of the inoperative “opposition” parties, he submitted an amendment to Article 21 of the Constitution to create the National Guard.Footnote ⁸⁸ Congress approved fast-tracking this reform and four complementary statutes: the Law of the National Guard, the Law on the National Registry of Detentions, the National Law on the Use of Force, and the General Law of the Public Security System,Footnote ⁸⁹ all of them raising frontal challenges to controls over the arbitrary exercise of power under the rule of law.Footnote ⁹⁰ A month later, Article 19 of the Constitution also was reformed and the range of cases in which judges are obligated to order automatic pretrial imprisonment (an institution incompatible with standard due process guarantees) was greatly expanded.

Many in civil society, wary of the president’s militarized conception of the National Guard and knowing how lethal the army’s record was, organized the platform “Seguridad sin guerra” (security without war).Footnote ⁹¹ The great efforts they made before Congress resulted in the Constitution providing that the National Guard remains ultimately subordinated to civil authorities – specifically, the Secretary of Public Security.Footnote ⁹² However, the decree creating the National Guard included a transitory provision that few noticed at the time, allowing the army to “perform tasks of public security in an extraordinary, regulated, supervised, subordinated, and complementary manner” for a period of five years. These were the exact words that the IACtHR had used when condemning Mexico in its Alvarado Espinoza rulingFootnote ⁹³ concerning a woman whom the army forcibly abducted while deploying tasks of ordinary security. The IACtHR declared that the army’s involvement in these tasks was inadmissible; only in an extraordinary, regulated, supervised, subordinated, and complementary manner could the army be involved in them.Footnote ⁹⁴

The statutes relating to the National Guard were deeply troubling and were soon challenged before the Supreme Court by the national ombudsperson (still directed by a person appointed during the former administration).Footnote ⁹⁵ The Law on the National Guard, for instance, defines the functions of the National Guard in a most open-ended way, paving the way to clearly unconstitutional action. It empowers the National Guard to investigate ordinary crimes and to supervise and check migrant people, but fails to define torture and forced disappearance as serious crimes.Footnote ⁹⁶ The Law on the National Registry of Detentions, for its part, leaves out essential elements required by the Constitution. It does not indicate what action is to be taken when events occur that put the detentions database at risk, and it is ambiguous regarding the obligations of the army when participating in tasks of public security, since it can be interpreted to mean that the army is not subject to the constitutional obligation to immediately communicate any detention to the police and provide the information necessary for it to be properly registered, and thereby allow oversight of rule-of-law protections.Footnote ⁹⁷

The National Law on the Use of Force similarly fails to regulate the minimum elements required by the constitutional amendment that created the National Guard and fails to specify the scope of crucial notions such as fuerza epiletal. Another provision could be interpreted as authorizing deadly use force from the moment operations are planned, as opposed to being a last-resort response to an actual or imminent aggression. Moreover, the law is unclear about the possibility of using force in demonstrations; interpreted contrario sensu, it opens the door to the use of all levels and means of force, including firearms and deadly weapons, in “illicit” demonstrations – a notion that is left undefined – or demonstrations that become violent.Footnote ⁹⁸ The General Law of the Public Security System, for its part, violates the right of access to public information by authorizing total ex ante withholding of all information in the national public security information system and national registries, preventing public access to this information to defend rule-of-law guarantees.Footnote ⁹⁹

While these cases were at the Supreme Court, the army was given an ever-growing number of responsibilities: the administration of the main ports,Footnote ¹⁰⁰ the administration of customs,Footnote ¹⁰¹ and the construction of a wide range of public works, including 1,500 branch offices of Banco del Bienestar, the Maya Train and the Felipe Ángeles Airport.Footnote ¹⁰² This means that the army has immense economic power at the moment.Footnote ¹⁰³ The so-called Guacamaya leaks demonstrated the army’s ubiquity (both legal and illegal) in all areas of public life in Mexico.Footnote ¹⁰⁴ As of June 2023, the marines have been given the administration of the main Mexico City airport and the government continues negotiations to buy Mexicana de Aviación – one of Mexico’s first commercial airlines, which went into insolvency in 2010 – for it to be run by the army.Footnote ¹⁰⁵

The army manages the training of the National Guard, 75 percent of whose members are former soldiers.Footnote ¹⁰⁶ In May 2020, the president, taking advantage of the window opened by the transitory constitutional provision,Footnote ¹⁰⁷ issued an executive decree providing that the army would assist the National Guard in performing public security tasks for a period of five years. In a surreal turn, the heading of the decree (known in Mexico as Acuerdo militarista) reads: “Decree providing for the participation of the Army in public security tasks in an extraordinary, regulated, supervised, subordinated, and complementary manner.” Yet these adjectives do not appear in the body of the text; on the contrary, the text of the decree fails to place any conditions on the participation of the army,Footnote ¹⁰⁸ thus disregarding IACtHR doctrine and the fact that the Constitution’s reference to those limitations meant that they had to be observed and taken up by the legislative branch.

The Acuerdo militarista, too, was challenged before the Supreme Court. Three municipalities filed controversias denouncing infringement of jurisdiction, and the Chamber of Deputies filed another one arguing that the president had bypassed Congress in addressing the matter by way of a decree, without prior enabling legislation.Footnote ¹⁰⁹ This time, the National Commission of Human Rights, now under the direction of a close ally of the president, did not react.Footnote ¹¹⁰

To complete the circle, at the request of the president, the Law on the National Guard was amended in September 2022, so as to place its operation more fully under military command.Footnote ¹¹¹ The law was fast-tracked and, after being passed in the Chamber of Deputies without discussion by commissions, was approved by the Senate within twelve hours of receipt.Footnote ¹¹² As Estefanía Vela and Nuria Valenzuela observe, the “civil” National Guard is now an empty shell.Footnote ¹¹³ The reforms do not comply with the conditions put forward in the Constitution and entrust the SEDENA (the Secretary of National Defense) with full financial, administrative, and operative control of the National Guard.Footnote ¹¹⁴ A formal mention of the Secretary of Public Security means nothing in a detailed regulation that places the body under the leadership of a person designated by the president on the basis of criteria that only high-ranking military officers can meet, and which situates operation and infrastructure under military control.Footnote ¹¹⁵ A group of senators again challenged the law before the Supreme Court.

A Supreme Court under siege has dealt unevenly with these cases, often in a miminalist way, but also refraining from acknowledging the legitimacy of the militarist onslaught. On November 29, 2022, the Court declared the “Militarist Decree” valid on the basis of the purely formal argument that it did not contradict the literal text of the Constitution,Footnote ¹¹⁶ ignoring IACtHR decisions. Yet on April 20, 2023, on the basis of a draft prepared by one of AMLO’s appointees, the Supreme Court declared the transfer of the National Guard to the military branch invalid and ordered civilian control of this body from January 1, 2024.Footnote ¹¹⁷ Given the amount of political pressure the judges had endured – including insertions in national newspapers paid by MORENA governors requiring the Court to certify the validity of the reform – this was seen as an immense victory by the law’s opponents.

The Court also discussed the question of automatic pretrial preventive imprisonment, but there was no consensus over declaring it invalid. The fact that it features in the Constitution, and not just in statutes, posed a great problem for a Court that has never declared the unconstitutionality of a constitutional amendment. Shortly afterward, in any case, the IACtHR decided the cases Tzompaxtle Tecpile v. Mexico and García Rodríguez v. Mexico, declaring that arraigo (pretrial unsupervised house arrest by the prosecutor) and automatic preventive imprisonment were incompatible with the American Convention.Footnote ¹¹⁸ The IACtHR has directed Mexico to enact the necessary changes in national law – that is, the Constitution.Footnote ¹¹⁹ Again, this was experienced by many in civil society as an immense triumph of rights in defense of the rule of law. The day after Tzompaxtle came out, the home affairs secretary (Secretario de Gobernación), an individual close to the president and prospective candidate in the next presidential election, declared that the ruling was not to be complied with. In the buildup to the 2024 election, we will see how this saga and the many dozens of others underway unfold for the future of the rule of law in Mexico.

VII Concluding Considerations: A War of Attrition, and the Difference the Constitution Makes

This chapter’s account, while providing overwhelming evidence of challenges to the rule of law in Mexico, is based on only a few paradigmatic examples of current dynamics. The AMLO administration in Mexico viewed basic rule-of-law requirements as daily obstacles to the fulfillment of its political program. In contrast to other autocratic legalists, who have tried to conceal contortions of the law or bypass, rather than openly disregard, constitutional requirements, President López Obrador has not hidden his distaste for legal “barriers.” He has defied them, among other reasons because he knows that the law is something people can be polarized about in countries where compliance with the law has not historically been an unconditional good, and where constitutional democracy has not brought about the material progress expected.Footnote ¹²⁰

The Mexican president has substantially progressed in his quest to weaken the checks and balances that the other branches apply to the executive. He has striven to suppress, defund, or leave unstaffed the independent agencies that in Mexico underpin the constitutional division of powers. He has tried to neutralize the judiciary through a mixture of partisan appointments to the Supreme Court, personal public attacks on judges, efforts to negotiate with the former president of the Court, and continual threats of radical reform. He has engaged in fast-track maneuvers to push through the enactment of core political measures, without opening them to public debate and deliberation. Day after day, he has trashed the individuals and groups that shape public opinion and watch over the exercise of power, like the press, the scientific and academic community, civil society organizations, and a varied assortment of other groups. He has structurally changed the nature of public (and economic) power in Mexico by putting the military on an equal footing with the executive. The number of problematic initiatives and actions that he and his parliamentary allies promote every week is astounding. And added to that, López Obrador has engaged in a strategy of attrition–, consisting in uninterrupted legal defiance that leaves political and social actors overwhelmed, without time and energy to react.

We have nonetheless seen that several decades of democratic constitutionalism have placed significant hurdles to this project of personalistic rule that violates core aspects of the rule of law. Concentrating all power has not been ultimately as smooth as imagined for López Obrador, even after a massive electoral victory that left him without any meaningful opposition in Congress. The existence of a highly detailed constitution, as well as fourth-branch institutions with constitutional status, has been crucial in slowing down (and until now preventing) the destruction of the electoral arbiter. Had the INE not been regulated in the Constitution, had it not been designed the way it was, and had it lacked standing to defend its jurisdiction before the Supreme Court, electoral credibility in Mexico might now be something of the past. The results of the intermediate election – which, importantly, diffused power by leaving MORENA as the majority party but unable to amend the Constitution alone – could not have happened without an independent electoral authority.

The presence of reinforced judicial structures with a wide menu of responsibilities and diversified channels of access, has maintained the engagement of the Supreme Court and lower-ranked judges, propelling procedural innovations that will help supervise power in the future, no matter who holds public office. If the national ombudsperson, a body with constitutional status, had not been designed to be appointed on a six-year basis, the militarist statutes enacted at the beginning of AMLO’s term would not have been challenged before the Supreme Court. The Inter-American regional system of rights protection has been equally crucial in aiding national judges under severe pressure. Public criticism of regressive pieces of public policy and regulation would have been impossible without the human rights reforms that have fortified civil society.

Latin America has been able to halt several neo-authoritarian processes. Even if the ups and downs of the political landscape signal a great need for political redirection in ways that genuinely benefit the people, they also show that the sustained, unbridled exercise of presidential power could be something of the past. The dangers of hyperpresidentialism are still here, but the evolution of the region gives some cause for hope. In Ecuador, Lenin Moreno ran for office as a close ally of former president Rafael Correa, but soon became a moderate, and the Council of Social Accountability and Participation provided an appropriate framework for a reappointment process that reversed the presidential capture of state institutions. Colombia lived for eight years under a right-wing populist president, Álvaro Uribe, whom the Constitutional Court stopped from reforming the Constitution so he could run for a third term. Respect for institutions was restored under Juan Manuel Santos, and in 2021, Gustavo Petro won the presidential election with a leftist program committed to reform in crucial areas like land tenure, social policy, and the environment. In Brazil, Bolsonaro deployed policies with immense cost in terms of social justice, pluralism, and democracy. But he lost the election to Lula da Silva and had to leave office, even with his supporters using force in an effort to prevent it.

The hypothesis proposed in this chapter regarding the case of Mexico is that these signs of contestation and recovery in response to challenges to the rule of law by populist leaders have been critically supported by the regional human rights regime as accompanied by broader constitutional developments. The analysis illustrates how important have been features such as the creation of new independent constitutional agencies underpinning the division of powers and the diversification and strengthening of the judiciary, which together have multiplied spaces and occasions for public mobilization. It also suggests, however, that most constitutional resources are activated ex post and place an immense burden on the courts. More effective, systemic prevention of rule-of-law erosion would require the enhancement and use of preemptive solutions, both in the domain of rights and in the domain of the organization of powers. Constitutions in the region are being seriously tested. Nonetheless, carefully pondering their positive contributions in times of crisis gives us reason to continue using the resources they provide in defense of the rule of law, offering resistance to the neo-authoritarian onslaught, and hopefully paving the way to a better future.