Administrative and Constitutional Litigation in Mexico

On 15 September 2024, the Federal Official Gazette published a constitutional reform to the Judicial Branch (the “Judicial Reform”). This reform has had a significant impact and repercussions in the country.

Fundamentally, this reform aims to renew judges and magistrates in both the federal and local judiciary, establishing popular vote as the method of appointment.

Committees formed by each branch of government reviewed the candidates to confirm their suitability for the positions to be renewed in the electoral process on 1 June 2025. At time of writing, the candidate lists have been approved.

Specifically, 872 judicial positions will be elected: 9 Justices of the Supreme Court of Justice, 2 magistrates of the Superior Chamber of the Federal Electoral Tribunal, 15 magistrates of the Regional Chambers of said Electoral Tribunal, 5 members of the Judicial Discipline Tribunal, 464 circuit magistrates and 386 district judges.

In December 2024, the General Council of the National Electoral Institute (INE) approved the ballot designs for the judicial election. A total of six ballots will be distributed, containing more than 64 candidacies for justices, magistrates and circuit judges.

However, this process has not been exempt from legal challenges filed both by the opposition in Congress and by various members of the Federal Judiciary. These legal actions have sparked debates over the scope of constitutional control mechanisms used to challenge an amendment to the Constitution itself.

Several additional reforms have followed this constitutional amendment, including the so-called “constitutional supremacy reform” and the elimination of autonomous constitutional bodies.

To consolidate these constitutional changes, secondary legislation must be enacted to regulate and operationalise the mandates enshrined in the Constitution. This will be the stage where opportunities and challenges arising from the new structure proposed by the incoming administration can be identified. The need to challenge certain regulations for potential violations of the Constitution or Mexico’s international treaties may also arise.

The country is closely watching the implementation of the Judicial Reform, as it represents an unprecedented shift in the justice system. It also poses a significant challenge for the INE, which must organise an election of this magnitude with only half the budget it allocates for congressional and presidential elections.

Moreover, secondary legislation must establish the necessary measures to ensure that, despite the extensive restructuring of the judiciary, the resolution of pending and new cases is not delayed, thus preventing irreparable harm to the parties involved.

Challenges to the Judicial Reform and the Constitutional Supremacy Amendment

In October 2024, opposition political parties in Mexico filed constitutional challenges (acciones de inconstitucionalidad) against the Judicial Reform before the Supreme Court of Justice of the Nation.

The plaintiffs argued that the reform violated fundamental constitutional principles, including judicial independence and the separation of powers.

The constitutional challenges questioned whether the Supreme Court had the authority to review the substance of a constitutional amendment and assess its consistency with other constitutional principles and values.

Faced with the possibility that the Supreme Court might declare itself competent to invalidate the Judicial Reform, a new constitutional amendment on the unchallengeability of constitutional reforms (the “Constitutional Supremacy Reform”) was published in the evening edition of the Federal Official Gazette on 31 October 2024. This amendment explicitly prohibits judicial review of constitutional amendments.

Furthermore, the second transitory article of the Constitutional Supremacy Reform stated that ongoing cases must be resolved according to the new mandates, effectively applying the amendment retroactively. This provision was intended to prevent the Supreme Court from ruling on the constitutional challenges against the Judicial Reform.

This development arose because the draft ruling, prepared by Justice Juan Luis González Alcántara Carrancá, proposed invalidating certain provisions of the Judicial Reform, particularly those relating to the popular election of judges and magistrates.

On 5 November 2024, the Supreme Court began discussing the ruling. A qualified majority of eight votes was required to declare a constitutional amendment invalid. However, during deliberations, Justices Lenia Batres, Yasmín Esquivel, Loretta Ortiz (who are generally aligned with the current administration) and Alberto Pérez Dayán opposed the proposal, arguing that the Supreme Court lacked jurisdiction to invalidate constitutional reforms. The final vote was seven in favour and four against, falling short of the majority needed to strike down the contested provisions.

Regarding the amparo (constitutional review) lawsuits filed against the Judicial Reform, several district judges granted suspensions to halt its implementation until the cases were resolved.

However, the Superior Chamber of the Federal Electoral Tribunal ruled that these suspensions were not binding, allowing the INE and other relevant authorities to continue the election process for judges.

As a result, several judges requested the Supreme Court to resolve the conflict between the suspensions granted in amparo lawsuits and the Superior Chamber’s decision to disregard these precautionary measures, arguing that they were not issued by competent authorities.

On 13 February 2025, the Supreme Court ruled that the suspensions granted by district judges had to be revoked within 24 hours, as they pertained to electoral acts, against which amparo relief is not applicable. However, it also determined that the Superior Chamber of the Federal Electoral Tribunal is not competent to disregard precautionary measures issued in amparo proceedings.

At time of writing, the Judicial Reform is still being implemented, with the candidates who will appear on the June 2025 election ballots already selected.

Dissolution of Autonomous Constitutional Bodies and Transfer of Functions to the Federal Executive

In the 1990s and early 2000s, Mexico adopted an economic model that facilitated trade and financial liberalisation.

As part of this new approach, various autonomous bodies were created and later granted constitutional status, such as the Bank of Mexico, which was granted autonomy in 1994, the National Human Rights Commission (CNDH), established in 1999, the Federal Electoral Institute (now INE), created in 1996, the Federal Economic Competition Commission (COFECE), created in 1992 and granted autonomy in 2013, the Federal Telecommunications Institute (IFT), created in 2013, and the National Institute for Transparency, Access to Information and Personal Data Protection (INAI), established in 2002 and declared autonomous in 2014.

The creation of these bodies has been crucial in carrying out highly technical functions and, in the case of INAI, exposing corruption scandals such as the “Master Fraud”, in which federal agencies diverted over MXN7.6 billion through shell companies.

COFECE has intervened in several key cases to combat anti-competitive practices in Mexico, such as the case of collusion in drug tenders from the Mexican Institute of Social Security (a government agency providing public healthcare services). Through this case, COFECE imposed sanctions on both pharmaceutical companies and medicine distributors that illegally co-ordinated to allocate public sector drug supply contracts among themselves.

Also, in September 2024, the IFT sanctioned a telecommunications company with a fine of MXN90.6 million due to monopolistic practices in various states of the Republic. The company was found to have provided incentives to distributors on the condition that they would not sell devices with SIM cards from competing providers.

However, on 20 December 2024, a constitutional amendment was published in the Federal Official Gazette, dissolving seven autonomous constitutional bodies and transferring their functions to the Federal Executive Branch.

According to the amendment, the primary objective is to reduce bureaucracy and associated expenses by centralising functions to improve administrative efficiency. The savings will be allocated to the Pension Fund for Well-Being.

Among the eliminated bodies are INAI, the IFT and COFECE.

The functions of COFECE and the IFT will be transferred to a new antitrust authority with technical and operational independence. Meanwhile, INAI’s responsibilities may be integrated into the Ministry of Public Service, which will be rebranded as the Ministry of Anti-Corruption and Good Governance.

Congress has a period of 90 days from the entry into force of the reform – 21 December 2024 – to make the necessary adjustments to secondary legislation. In the meantime, the autonomous constitutional bodies will continue to perform their functions as usual.

It should be noted that the secondary legislation issued to implement the reform will be of critical importance, as the loss of autonomy of the agencies responsible for enforcing competition and telecommunications laws may lead to scrutiny from Mexico’s trading partners in the upcoming United States–Mexico–Canada Agreement (USMCA) review scheduled for this year.

Article 18.17 (Telecommunications Regulatory Bodies) of the USMCA stipulates that Mexico must ensure that its telecommunications regulatory body does not have a financial interest in, nor maintain an operational or administrative role in, any public telecommunications service provider. A footnote further states that, for Mexico, the telecommunications regulatory body is autonomous from the Executive Branch, independent in its decisions and operations, and is tasked with regulating and promoting competition and the efficient development of telecommunications, in accordance with the prevailing Mexican law at the time.

While the autonomy of the antitrust authority is not a requirement under the USMCA, the loss of such autonomy could be challenged as a regressive measure in violation of the ratchet clause in Chapter 14 of the USMCA.

From a litigation perspective, the governmental structure proposed by the reform means that actions taken by the new antitrust, telecommunications, transparency and data protection authorities may be challenged through a nullity trial before the Federal Court of Administrative Justice (a court of legality), in contrast to the current system, where the only available legal remedy against COFECE, IFT or INAI actions is the amparo lawsuit (a constitutional remedy).

Regarding antitrust law, this change is significant because litigation would, in principle, be resolved by the ordinary chambers of the Federal Court of Administrative Justice, whereas currently, the Federal Judiciary has specialised bodies for this field.

This will undoubtedly shift a substantial workload from district courts to the chambers of the Federal Court of Administrative Justice (a body within the Federal Public Administration with technical autonomy), which will likely necessitate a reassessment of the Court’s composition, potentially requiring the creation of more specialised chambers by subject matter.

Reform to the Amparo Law

On 18 February 2025, the Justice Committee of the House of Representatives approved the bills to amend the Amparo Law and the Regulatory Law of Sections I and II of Article 105 of the Constitution, with the aim of harmonising them with the Judicial Reform.

The key modifications include:

• In amparo lawsuits against general norms, provisional or definitive suspensions will not have general effects, meaning they will only benefit the parties involved in the lawsuit and not third parties.
• In constitutional controversies (controversias constitucionales), the suspension of challenged norms will not be granted.
• Judges and magistrates may not seek amparo relief against sanctions imposed by the Judicial Discipline Tribunal, formerly known as the Federal Judiciary Council.
• The number of votes required in the Plenary of the Supreme Court of Justice of the Nation for its decisions to be binding on all judicial authorities is adjusted to six.
• The provisions referring to the Chambers of the Supreme Court of Justice are repealed, as the Court will only hold sessions in Plenary.

Although the restriction imposed on rulings granting suspension in amparo lawsuits – prohibiting them from having general effects – has generated controversy, the reality is that the Amparo Law already established this principle in Article 148. This provision states that injunctive relief shall be granted to prevent the rule’s effects and consequences on the complainant’s legal rights.

Perspective for the Years to Come

In the past year, crucial constitutional reforms have been enacted, altering the structure of the republican powers and the form of government in Mexico, such as the Judicial Reform and the transfer of functions in the areas of antitrust, telecommunications and transparency to new entities within the Federal Public Administration.

Additionally, constitutional reforms have been implemented aiming to provide a new legal framework for various regulated sectors, such as the energy, mining and railway sectors. This, in turn, creates the need to design secondary laws, which will define the opportunities and challenges that will need to be addressed in the coming years.

The secondary laws arising from these reforms may be contested through amparo, allowing the courts to assess their constitutionality and establish criteria for their application. In this process, the Supreme Court of Justice will play a key role in interpreting the new norms and determining whether they respect the fundamental principles of the Constitution.

The development of this constitutional control mechanism will be a litmus test to demonstrate the independence of the judiciary, especially in a context where the reform seeks to transform its structure and functioning, as well as to renew all its members.

As the first rulings are issued, we will be able to assess whether the Judicial Reform truly strengthens the administration of justice or, conversely, undermines its autonomy and operability. Moreover, this process will provide certainty to citizens and stakeholders in the legal sector regarding the actual scope of the regulatory changes.

The expectations for its implementation are high, and its success will depend on the legal system’s ability to ensure that these changes are applied fairly, transparently and for the benefit of the rule of law.