Last week, the Secretary of the Interior, Adán Augusto López, announced that President López Obrador will present the “preferred initiative” to transfer the National Guard to the Secretary of National Defense (SEDENA). During his intervention in the plenary of deputies of Morena, he made it known that the presidential proposal contemplates only changes to various secondary laws; it does not include constitutional reforms.
Although the content of the Executive’s initiative has not yet been disclosed to the public, the Secretary of the Interior specified that the president will propose changes to four legal provisions: the Organic Law of the Public Administration, the Law of the National Guard, the Law of the Army and Armed Forces and the laws of promotion of the Armed Forces. His goal, he said, will be to consolidate the National Guard administratively and operationally in SEDENA.
The President of the Republic has the power to present up to two “preferential treatment” initiatives at the beginning of each ordinary period of sessions, according to Article 71 of the Constitution. The chamber of origin is obliged to discuss and vote in plenary sessions on these proposals within 30 calendar days following their presentation.
Otherwise, the initiative, as sent by the president and without the need for a committee opinion, must be the first issue discussed and voted on in plenary in the following session. Once approved as is or with modifications by the chamber of origin, the presidential initiative for preferential treatment must be discussed and voted on by the reviewing chamber within the same terms and under the same conditions.
The preferential initiative was introduced in 2012 to strengthen the President of the Republic. With this power, he acquired the ability to influence the agenda of Congress and force it to pronounce on issues that he considers urgent and relevant. It was conceived at the end of the government of Felipe Calderón as an instrument to deal with a Congress in which his party does not have a majority.
However, it has been little used. President Peña Nieto resorted to the preferential initiative on two occasions during his six-year term. He used it for projects that aroused a broad consensus among political parties, such as the Law for the Protection of Children and Adolescents in 2016 and reforms to the General Education Law to simplify the revalidation of studies in 2017.
President López Obrador seeks to give a different use to the preferential initiative. He doesn’t need it to get the chambers of Congress to discuss and vote on his bill. He has a parliamentary majority at his service, made up of Morena, PT and the Green Party. On previous occasions he has used them to approve presidential initiatives on a fast track, with a waiver of legislative proceedings to avoid the opinion in commissions.
It could do it again with the initiative to transfer the National Guard to SEDENA. The opposition in Congress lacks the ability to prevent legislative changes from being passed. However, you can file an action of unconstitutionality before the Supreme Court of Justice of the Nation (SCJN). For this reason, President López Obrador prefers to make a more ostentatious display of his power.
He knows that his project hardly passes the constitutionality control. The Magna Carta clearly defines the National Guard as a “civilian police institution.” There is no way to maintain this nature, if it is inserted into a military structure like SEDENA; even more so if their commanders and elements are active military.
Faced with the inability to build a political consensus around his project to militarize public security, the president bets on the passivity of the SCJN.
His strategy is that the insertion of the National Guard in SEDENA becomes a fait accompli, that no one dares to reverse.
*Professor at CIDE.