—Andrea Pozas-Loyo, Legal Research Institute (IIJ), National Autonomous University of Mexico (UNAM)
Mexico is in the midst of a legal and political storm in which events unfold at an accelerated pace, where the prevalent perception is that of uncertainty in an increasingly polarized public arena. In what follows, I will use the concept of “critical juncture” to give some order and perspective to those events, and on their possible legal and political effects. By “critical juncture” I mean here a major exogenous shock that disrupts the existing balance of power. At this time, whether the COVID-19 outbreak will become a critical juncture in Mexico’s political and legal development remains largely an open question. Nevertheless, using this concept allows us to think about the possible effects of this pandemic in terms of a broad dichotomy: either as the acceleration/consolidation of preexisting processes without significant power shifts or as a critical juncture.
I first give a brief account of what I consider have been the most important political and legal events so far into the pandemic, they are organized into two sections: vertical and horizontal checks and balances; and security and militarization. In the last section, I reflect on the possible effects of the COVID-19 outbreak in terms of the dichotomy continuity or critical junction, by focusing on inequality and poverty on the one hand, and on elections, political parties and polarization on the other.
1. Checks and Balances
Article 29 of the Mexican Constitution governs the declaration and use of emergency powers. Nevertheless, President López Obrador (AMLO) has decided not to invoke them. Instead, 257 regulatory measures issued since the beginning of the outbreak compose the bulk of the federal response to the pandemic. The set of regulatory measures AMLO’s administration has issued as a response to the COVID-19 pandemic is large and heterogeneous. As I discuss here, and in the following section, the likely effects of a subset of them can hardly be overestimated.
On April 2, in its daily morning press conference, AMLO declared that the economic crisis produced by the pandemic “fit us like a glove [“nos vino como anillo al dedo”] to consolidate the purpose of the transformation”. This declaration is, I believe, a clear window into the President’s diagnosis of Mexico’s political system, and to the logic behind an important group of regulatory measures issued by his administration. These measures are characterized by strong budget cuts to public institutions (with the exception the Armed Forces and the Health Ministry), concentration of power on the executive, and direct transfers to the poorest segment of the population.
To make sense of them, I need to introduce some context. Under the official narrative, AMLO’s election inaugurated “The Fourth Transformation (4T)” in our history, after the Independence, the 19th century liberal victory, and the Mexican Revolution. The 4T’s identity is constructed by opposition to the four decades of “neoliberal rule” characterized by rampant corruption, moral decay, and the exploitation of the people by the “mafia in power.” Part of this “mafia” –composed by the political, economic, and cultural elites– still populates public institutions. In view of this official narrative, in order to construct a new and true government for the people, the inherited institutional framework needs to be discarded or reduced to a minimum, including a large number of autonomous constitutional organs that host the neoliberal experts, the state bureaucracy, and the public administration’s budget.
Many regulatory measures issued during the COVID-19 crisis follow the above logic. But let me single out one as a paradigmatic example. On April 23, a decree known as the “Austerity Decree” was issued. Among the measures the President mandates are: a 75% cut to the operation budget of all public agencies and a “voluntary” progressive reduction in the salary of all “high” public servants of up to 25%. In addition, most governmental expenditures have been postponed (with the exception of the administration’s megaprojects). Through this decree the President makes substantive changes to the 2020 federal budget, which is a faculty of Congress. The decree itself seems to tacitly recognize conflict with the system of checks and balances, and affirms that its content will be send to Congress for its approval as a Law, but it also mandates its immediate enforcement.
The Austerity Decree not only upsets the system of checks and balances, but also endangers the state’s capacity both in the short run through this year’s budget cuts and also in the longer term through losses in human capital, organizational capacity, and infrastructure decay. The consequences of state capacity loss can be dire, particularly to the most vulnerable segments of our outrageously unequal country. This was tragically the case of the Health Ministry when the pandemic hit our country. In March 2019, the Health Secretary had proudly announced that at least 30% of personnel had been laid off.
During this period of intense activity in the executive branch, the legislature has suspended its sessions; their last meeting was on April 22. The judiciary has also been mostly absent. The Supreme Court cancelled its sessions for 40 days from March 10 to April 20, when it met virtually for the first time. On June 16,the Federal Judiciary restarted its work remotely after eleven weeks of suspension. Several of the regulatory measures the executive has issued during this period will be facing constitutionality judgments before the Supreme Court. These cases will be politically complex for the Court, since at this time an important Judicial Constitutional Reform is waiting to be discussed in Congress.
The picture regarding vertical checks and balances is more nuanced. Mexico’s federal structure gives state government’s important control over local policies, and the National Health Law establishes a scheme of power sharing between the states and the federation. The states’ responses to the pandemic have been active (they have issued 1222 regulatory measures) and heterogeneous. For instance, federal economic measures to face the pandemic have been limited to cash transfers and credits, while 90% of the states have delivered food, 87% have issued some form of tax and administrative stimulus, and 62% have given other kinds of help such as free medications and support for production. There has been a very clear political strategy from some governors to distance themselves form the federal response. Politically, the pandemic seems to have activated our federalism.
In sum, the government’s reactions to the pandemic have implied weakening the horizontal checks and balances. But, on the other hand, some of the local government’s responses to the pandemic apparently have activated the vertical checks and balances. Whether this combination is sustainable or potentially disruptive remains to be seen.
2. Militarization and Security
On May 11, an Agreement known as the Militarization Agreement was published. This agreement legally authorizes the armed forces to make detentions, including that of migrants, seize assets, execute arrests warrants, preserve, secure, investigate, and process evidence in crime scenes (among other functions). It also gives the armed forces the tasks of preventing crime, maintaining order and social peace in all the places that are subject to federal jurisdiction (e.g. airports, customs, federal roads). Importantly, this agreement establishes that all the actions taken by the armed forces in the fulfillment of this Agreement will be under the supervision and control of an internal control organ (i.e. to a military authority not subjected to transparency laws and without clear accountability mechanisms to a civilian authority).
I want to stress three points regarding the above Agreement: First, there are strong arguments in favor of its unconstitutionality. To name just two: (a) the President does not have the prerogative to issue “agreements” of this nature, and (b) this Agreement does not comply with the 2019 Constitutional Reform that clearly establishes a transitory regime under which the deployment of the armed forces for public safety needs to satisfy the international standards of extraordinary, regulated, monitored, subordinated and complementary use. Second, the “Agreement” de facto eviscerates the core of the constitutional decision enacted in the 2019 Constitutional Reform that mandated the creation of the National Guard under civilian authority and the progressive de-militarization of public safety tasks. Finally, this agreement also has an important political message: the armed forces in the context of the COVID-19 pandemic have finally obtained legal support for their de facto role in Mexico’s public security. The administration appears to have wholly abandoned the systematic construction of a civilian police and the professionalization of criminal prosecutorial institutions. The armed forces are filling the gaps that such an abandonment has left.
An additional element that may become consequential is that under this administration the armed forces have acquired new economic and administrative roles. A company under their control will build, administer, and acquire the profits of the new Santa Lucía airport in Mexico City. The cost of the project is estimated in $3600 USD millions. They will also build two sections of the Mayan Train, and will build 13000 bank branches to distribute AMLO’s social programs. During the COVID-19 pandemic these new tasks have multiplied: the armed forces are transforming all their hospitals into clinics for COVID-19 patients, and they are administrating and operating 33 public hospitals. These new economic and administrative roles have implied the acquisition of a substantial amount of goods and services, the great majority of which have not been subject to the transparency and supervision required to public bids. This unfortunately opens the door to corruption, and dangerously grants the armed forces an increasing economic independence from the federal budget.
Finally, violence and crime continue to be a serious challenge. For instance, the number of intentional homicides registered in the first trimester of 2020 has increased vis-à-vis the same period of 2019, from 8,775 to 8,829. The expectation is that the economic recession produced by the pandemic will increase crime. The armed forces will be in the streets and human rights violations accompanied with lack of accountability and great opacity are an ominous possibility.
3. COVID- 19 Pandemic: Continuity or Critical Juncture?
In this last section, I briefly reflect on the possible effects of the COVID-19 pandemic in terms of the dichotomy between continuity or critical juncture for change.
Inequality and Poverty
In 2018, 41.9% of the Mexican population lived in poverty, 11.0% lived in extreme poverty, 24.7 % of the population lacked basic services in their homes, and 20.2% did not have access to health services. In addition more than 50% of the labor force is part of the informal economy. Given this panorama, it is no surprise that the pandemic has reinforced inequality. So far most of the COVID-19 cases have been in densely populated urban areas, but the data on the impact of the virus in poor and isolated communities is dreadful: the case fatality rate in the poorest municipalities almost doubles that of the richest (9.17% and 17.1%).
According to CEPAL, Mexico will have, among all the Latin American countries, the largest increase in the percentage of the population living in extreme poverty due to the COVID-19 crisis (4.8%), going from 11.1% to 15.9%. This would be a terrible result for an Administration, which, I think, honestly and deeply cares about poverty. AMLO’s administration has made an important effort to extend social aid to some of the most vulnerable segments of the population. Consistent with their distrust with institutional structures, their chosen path has been direct cash transfers. Unfortunately, the positive effects of such a strategy may be undermined by the economic crisis. Mexico’s expected GDP contraction this year is 7.1%. It is impossible to know how bad the economic crisis will be, but it is very likely that it will cause strong political pressures.
Elections, Parties and Political Polarization
In July 2021, Mexico will have a major election: Congress will have 500 new members, fifteen out of thirty-two states will elect a new governor, and thirty states will change their legislatures. Currently MORENA (AMLO’s party) holds 254 seats in Congress (50.8%). In May 2020 AMLO’s approval rating was 60%. In contrast, the electoral support for political parties is at a record low: MORENA leads the polls with a mere 18% of support, followed by PAN with only 10%, and the previously hegemonic PRI with 8%. A huge 59% of the population does not support any party.
At the same time, the public sphere feels more polarized than ever. While such polarization has many contributing factors, AMLO and some “opposition leaders” have used it as a political strategy. For the former, it has arguably been an effective tool to unify an otherwise heterogeneous and inherently conflictive coalition, whose only common denominator seems to be the opposition to such a constructed “otherness”. For the latter, so far, polarization has been a much less effective tool to create a coordinated group that could constitute a political alternative to the coalition in power. The groups who do not approve of the Administration’s performance and policies are all over the ideological spectrum, from the very progressive, feminist and environmental groups, to very right-wing actors. The likelihood that they will overcome this ideological barrier, and the collective action problems they face to constitute a feasible political alternative, seem very remote now. But crises can lead to critical junctures, and for better or for worse new leadership can emerge from them.
In the first sections of this text I presented an overview of some of the events that I consider to be the most consequential politically and legally during the pandemic. So far everything seems to point to the continuity/acceleration of preexisting processes, especially those initiated with the electoral triumph of AMLO and MORENA in the elections of July 2018. Tensions within the system of checks and balances, conflict with autonomous organs, austerity measures with substantive costs on State capacities, and the empowerment of the armed forces have been the expected effects of the AMLO administration for a while … up to a point. The COVID-19 pandemic and its effects could change the parameters of what has been reasonably expected. It could become a critical juncture that empowers the President or a section of MORENA beyond all our expectations. Alternately, it could lead to the formation of a new political coalition or coalitions, or to the emergence of a lonely political outsider who capitalizes on the discontent that will likely emerge from the combination of the health, economic, and political crises. So far it is a good piece of news that the target of all relevant political forces seems to be the legislative mid-term elections of 2021. But the coin is in the air.
Suggested citation: Andrea Pozas-Loyo, On the Possible Legal and Political Effects of the COVID-19 Pandemic in México, Int’l J. Const. L. Blog, Jun. 25, 2020, at: http://www.iconnectblog.com/2020/06/on-the-possible-legal-and-political-effects-of-the-covid-19-pandemic-in-mexico/
 Acemoglu, Daron and Robinson, James A. 2012. Why Nations Fail: The Origins of Power, Prosperity and Poverty. New York: Crown Business, p. 106.
 There has not been a curfew, and distancing measures have been largely voluntary.
 For a list of all these regulations, see: https://conamer.gob.mx/respuestas-regulatorias-covid-19/
 For a list of these, see https://conamer.gob.mx/respuestas-regulatorias-covid-19/EstadosMunicipios/Index.
 López Olvera, Miguel Alejandro. 2020. “La disposición de la fuerza armada permanente para funciones de seguridad pública por un reglamento autónomo”, in Nuria, González Martín(coord.), Emergencia sanitaria por COVID-19: Un acuerdo desconcertante, ¿emergencia por motivos de salud o de seguridad? Mexico City: IIJ-UNAM. at https://www.juridicas.unam.mx/publicaciones/detalle-publicacion/164.
 Vázquez, Daniel. 2020. “Institucionalizando la militarización en México. ¿Por qué justo ahora?: La ominosa resolución del 11 de mayo de 2020.” in Nuria, González Martín(coord.), Emergencia sanitaria por COVID-19: Un acuerdo desconcertante, ¿emergencia por motivos de salud o de seguridad? Mexico City: IIJ-UNAM, at https://www.juridicas.unam.mx/publicaciones/detalle-publicacion/164.