More Charter Values Nonsense

When will this end?

Doré, that bedeviling case that held that administrators must take into account “Charter values” when exercising discretion, continues to trouble lower courts. This is not only true on a theoretical level—I still have yet to hear a convincing explanation of what a Charter value actually is—but on the level of applicability. Courts are struggling with the following question: should Charter values apply in the administrative law context whenever a decision-maker interprets a statute, even if there is no ambiguity or discretion? For reasons that I will explain, this distinction between statutory interpretation and discretion is more of an illusion. In administrative law, discretion exists when statutes are ambiguous. Therefore, if one must have regard to Charter values, it should only be in the context of a pure exercise of discretion, where an administrator has first concluded that a statute is truly ambiguous and therefore an administrator has room to maneuver. Where legislation is clear, decision-makers must apply it, unless there is a direct constitutional challenge to the legislation before the decision-maker, and the decision-maker has the power to consider the challenge under the Martin line of cases. If there is any law to apply—ie if the statute is clear after a review of the canons of interpretation—then Charter values have no place in the analysis.

Let’s start with the basics. The hornbook law answer to the problem says that courts—and by logical extension, inferior tribunals—can only take into account Charter values in cases of genuine statutory ambiguity, where this is discretion at play (see Bell ExpressVu, at para 28). Where legislation is clear, administrators should apply that legislation absent a direct constitutional argument raised by an applicant where the decision-maker has power to decide constitutional questions (Singh, at paras 62-63). And yet, the Supreme Court and other courts have sometimes said otherwise, relying on the line in Doré that decision-makers must always exercise their authority in accordance with Charter values (Doré, at para 35), even in absence of ambiguity. Take R v Clarke, where the Court seemed to suggest that administrative interpretations of law are always subject to a consideration of Charter values, even in absence of ambiguity:

Only in the administrative law context is ambiguity not the divining rod that attracts Charter values. Instead, administrative law decision-makers “must act consistently with the values underlying the grant of discretion, including Charter values” (Doré, at para. 24). The issue in the administrative context therefore, is not whether the statutory language is so ambiguous as to engage Charter values, it is whether the exercise of discretion by the administrative decision-maker unreasonably limits the Charter protections in light of the legislative objective of the statutory scheme.

This approach was followed by the Court of Appeal for Ontario in Taylor-Baptiste, and most recently by the Ontario Superior Court in Ontario Nurses Association. There, the court chastised a tribunal for failing to consider Charter values, even when the Tribunal found that the statute at hand was not ambiguous and where the court did not impugn this legal finding

So we have two lines of cases. One line of cases presents the defensible, hornbook law version of the hierarchy of laws, under which laws apply to all—including administrative decision-makers. The other line of cases permits decision-makers to use Charter values before determining whether the statute is ambiguous using the ordinary tools of interpretation, potentially changing what the legislature meant to say on an ordinary meaning of the text in service to some abstract consistency with a Charter “value.”

The distinction between administrative law discretion and statutory interpretation is really just two different points on a continuum. In the context of administrative law, saying that there is “discretion” and that the statute is “ambiguous” are slightly different ways of getting at the same concept. That concept is the idea that the statute cabins the interpretive movements of the administrator. Sometimes statutes will be written in ambiguous or broad terms, permitting discretion. There, Charter values should be fair game. But otherwise, if there is any law to apply at all, Charter values have no role to play.

It should therefore be obvious that this second line of cases is grossly—and dangerously—mistaken. These cases permit Charter values to enter the fray where the statute is not ambiguous (ie) at the first-order interpretive question stage of the analysis. The basic problem can be divided into two categories: (1) the effect of an administrative decision invoking Charter values on the hierarchy of laws and (2) the pernicious consequences of permitting decision-makers to use Charter values in the context of statutory interpretation.

Consider the first problem. The hierarchy of laws might be regarded as a quaint subtlety in today’s world of law, but it remains the bedrock to the Rule of Law. The idea is simple: absent constitutional objection, legislation binds (for a discussion of the continued relevance of this simple maxim, see Justice Stratas’ opinion in Hillier). A statute that is clear creates no discretion; upon first impression, an administrator interpreting a statute must simply apply the statute after determining its meaning using all the permissible tools of textual interpretation. This is because the legislature is the authoritative writer of laws, and those operating under the statutes the legislature promulgates must apply those statutes.

When there is ambiguity, discretion enters the fray. This is because the legislature has delegated to the decision-maker but has not said with specificity what law the decision-maker must apply. Such a finding of ambiguity should only happen after a consideration of all the normal tools of interpretation. At that point, BellExpressVu is a logical way to view the problem: decision-makers and courts can take account of Charter values, so that statutes in ambiguity are interpreted in pari materia with the Charter. This itself is an important canon of interpretation. Laws should be interpreted as a consistent whole, especially where the legislature has not specified what law to apply.

How would this work in the context of a concrete case? In Singh, for example, the problem was whether there was discretion for the Refugee Appeal Division (RAD) in interpreting whether to admit new evidence under s.110(4) of the Immigration and Refugee Protection Act. Section 110(4) contains explicit conditions for the admissibility of evidence. But an intervener made the argument that “the values protected by s.7 of the Charter must enter the interpretation and application of s.110(4) of the IRPA and even lead to the admissibility of new evidence that does not meet the explicit requirements of this provision” (see para 58). The Court rejected this argument because “an administrative decision-maker’s obligation to enforce Charter values arises only if it is exercising statutory discretion” (Doré, at para 55; Singh, at para 62). Since s.110(4) was not written in an “ambiguous manner,” Charter values could not enter the fray. And this is because of the hierarchy of laws: “[i]t is up to Parliament to amend legislation that has been declared unconstitutional so as to ensure compliance with the fundamental law of the land” (Singh, at para 62).

Doré itself involved a much more discretion-laden case, where the question was whether a lawyer’s conduct violated the sparse terms of a rule of professional conduct which simply required lawyers to act with “objectivity, moderation, and dignity.” Here, there is some ambiguity. This is not a statutory recipe, as s.110(4) is. Rather, it permits some discretion in the administrative decision-maker to decide whether particular conduct violates the rule. As such, Doré is a case where there arguably is ambiguity, in contrast to Singh. That said, were I on the Supreme Court, I would have ultimately held that the statutory text could be interpreted in absence of Charter values.

Other cases will be closer to the line. But what should not be permitted is the use of Charter values in absence of ambiguity, like in the Ontario Nurses Association case. By forcing this sort of analysis, courts enable decision-makers to change the clear meaning of statutes in order to accord with abstract Charter values, even when those values are not clear and the legislation was not written in this manner. The answer in such a case is for someone to raise a direct constitutional challenge to the legislation, either before the decision-maker or before a court. Otherwise, administrative decision-makers have no power to rewrite statutes to conform with Charter values—not necessarily coextensive with the Charter’s text—because to do so permits the decision-maker to co-opt the legislative role.

This leads into the second problem. The use of Charter values in statutory interpretation could lead to mass unpredictability in the application of law. First, this is because Charter values remain undefined. No one can tell whether a Charter value is co-extensive with the text of the Charter or not. No one can tell if there are Charter values that exist in addition to Charter rights. No one can tell the level of abstraction at which Charter values must be stated. While I have previously noted that Charter values are simply being deployed as if they were co-extensive with existing Charter rights, this need not be the case, given the ambiguity in how the Supreme Court has defined Charter values.

And this is the problem. Charter values are potentially so abstract that they provide a wishing-well of material for inexpert administrative decision-makers to mould clear statutory text in favour of their preferred policy outcomes. This is positively dangerous, and the mere possibility of it should be avoided by courts. What’s more, the invocation of Charter values in this way could lead to different findings of “inconsistency” with Charter values across the mass of administrative decision-makers, raising the prospect of palm-tree justice. In other words, it might simply depend on the decision-maker you draw as to whether a statute will be interpreted in accordance with “Charter values”; what such an interpretation would mean for your case; and what “value” would even be invoked in the first place.

Much of constitutional interpretation should exist to prevent such outcomes. Doctrinal rules should be developed to limit the discretion of judges and decision-makers to depart from the hierarchy of laws; or at the very least, rules should mandate that reasoned explanations be given for such departures. This is even more true in the context of the administrative state, where the mass of decision-makers exercising authority is so divergent that it is difficult to control as a matter of law. But the Charter values framework consists of no rules to control these decision-makers. It is simply unprincipled balancing under the guise of law. It is the realm of philosophers rather than lawyers and courts.

The Empire is Still Strong: A Response to Prof. Daly

Over on Administrative Law Matters, Prof. Daly writes that “[a]nti-administrativists have not had a good couple of weeks.” So his argument goes, in the last number of years “the administrative state in the United States has been under sustained attack, traduced as illegitimate and a betrayal of the commitment of the Founding Fathers.” This “cartoonish version of modern public administration” with “quavering judges unable or unwilling to get in its way” apparently met three defeats in three separate cases at the United States Supreme Court this spring: (1) Gundy, a non-delegation challenge, which I wrote about here (2) Kisor, a challenge involving the doctrine of deference which applies when administrators interpret their own regulations and (3) Dept of Commerce v New York, the census case, in which so-called “hard look review” was deployed by the Court. To Prof Daly, each of these cases represents the victory of well-developed administrative law principles over broad-side constitutional challenges to the administrative state. In this sense, “anti-administrativists” indeed had a bad few weeks.

I view the matter quite differently. Each of these cases actually shows how the “anti-administrativist” position has gained some traction, such that administrative state sympathizers like Justice Kagan must respond and incorporate them. In different ways, each case represents at least a partial triumph for positions and tools of administrative law that have roots in what Prof Daly calls the “anti-administrstivist” position.

Before moving to the cases, a note first about terminology. The term “anti-administrativist” implies that there is some objection to administrators writ large. But virtually no one makes this argument—not even Gorsuch J, who in Gundy did not criticize the very act of delegation to administrators itself, only the practice of legislative delegation. Much administrative law criticism sounds in bringing doctrine into a more coherent state, with a greater tie to fundamental constitutional arrangements. Jeff Pojanowski’s article, Neo-Classical Administrative Law, is a good example of this sort of argument. Accordingly, I will not use the term “anti-administrativist,” because it catches too much criticism: criticism that is not necessarily opposed to administrators making decisions, but that is instead focused on rooting those decisions in legislative authorization or other constitutional norms.

In terms of the cases cited by Prof Daly to support his argument, consider first Gundy. There, Justice Kagan interpreted the statute at issue to avoid a non-delegation problem, noting that delegation problems are in reality problems of statutory interpretation. To be sure, this was not a success for those who believe in a strong-form version of the non-delegation doctrine. Some of Kagan J’s opinion reads as a paean to administrative law functionalism, speaking for example to the modern “necessities of government” and concluding that if the statute at issue was unconstitutional, “then most of Government is unconstitutional.” But at the same time, the actual conclusions in Kagan J’s opinion are not at all monolithic. Rather than simply stating that the delegation passed muster under the easy-to-satisfy “intelligible principle” test, she took pains to qualify the delegation according to the text, context, and purpose of the statute. This had the effect of narrowing the delegation to avoid the sort of broad non-delegation problem that Gorsuch J saw in the case.

What motivates this sort of reasoning? It is very similar to the adoption of a clear statement rule, used variously as substantive canons of statutory interpretation in the United States. Clear statement rules work like this: absent a clear statement in the legislation, courts will not presume a certain result. Usually that certain result is contrary to some constitutional norm or value, even though the result is not an in-law constitutional violation. As William Eskridge explains, the Court has variously deployed this sort of reasoning in the context of delegation problems, “refer[rring] to the non-delegation idea as a canon of statutory interpretation rather than an enforceable constitutional doctrine.” Why? Because the US Constitution vests all legislative power in the Congress, and statutes (laws) cannot be made without bicameralism and presentment. This was the approach adopted in the Benzene Case, for example, where the Court interpreted a delegation to OSHA to create a “safe and healthful workplace.” The Court interpreted the statute to prevent the broad delegation, imposing a requirement of cost-benefit analysis on the agency.

Kagan J’s opinion is basically the same. She qualified the delegation with reference to the broader statutory scheme. She would only do this to avoid some delegation problem that engages a core constitutional presumption against delegation, as Eskridge points out. The result was an interpretation of the statute that avoids constitutional problems that many of us who oppose widespread delegation would find problematic. In this sense, constitutional objections to widespread delegation found their way into Kagan J’s opinion.

Consider next Kisor, the regulatory deference case. Kisor reformulated so-called Auer deference to administrative interpretation of regulations, which simply held that a court would only interfere with such an interpretation if it was “plainly erroneous or inconsistent with the regulation.” But Kagan J, in a majority opinion, came to a very different view of the conditions for the engagement of now-renamed “Kisor deference.” This opinion had the effect of cabining deference such that it only applied when the underlying justifications for it—legal and epistemic—were truly present. Consider each of the steps of Kisor deference, as explained by Chris Walker and excerpted by Professor Daly:

  1. The regulatory provision must be “genuinely ambiguous” after applying all of the traditional tools of interpretation (Chevron step one).
  2. The agency’s regulatory interpretation must be “reasonable,” and “[t]hat is a requirement an agency can fail” (Chevron step two).
  3. The agency’s regulatory interpretation must be the agency’s “authoritative” or “official position,” which means it must “at the least emanate from [the agency head or equivalent final policymaking] actors, using those vehicles, understood to make authoritative policy in the relevant context” (some version of the Mead doctrine/Chevron step zero).
  4. The agency’s regulatory interpretation must implicate the agency’s substantive expertise (some version of Skidmore deference).
  5. The agency’s regulatory interpretation must reflect “fair and considered judgment” — not an ad hoc litigating position or otherwise an interpretation that causes regulated entities unfair surprise (existing Christopher exception to Auer deference).

Each of these steps reflect varying justifications for deference that must actually be present before deference follows:

(1)-(2): Genuine ambiguity engages the presumption that if the legislature spoke clearly to a matter, its view must prevail over contrary interpretations by an agency. This is related to fundamental constitutional ideals of congressional/legislative superiority over a mere delegated body.

(3) and (5): Authoritativeness and fair and considered judgment reflects the requirement that agencies must adequately explain their conclusions, so that courts can conduct the constitutional act of judicial review, and so that the public can understand their conclusions. Both of these conditions are important for the public acceptance and legality of the administrative state, as noted in the Commerce Department case discussed below.

(4) Truly-existing expertise is an epistemic reason for deference, as Prof. Daly points out in his book, A Theory of Deference in Administrative Law. While it may not be a legal reason for deference (and hence not a very persuasive reason for it), it at least shows that Kagan J was concerned with ensuring that deference should apply when the reasons for its justifications are present.

So, Kisor is actually a representation of a much more constitutionally-justifiable doctrine of deference that is consistent with critiques of the administrative state as untethered to and uncontrolled by constitutional norms. Kisor is driven by a need to cabin deference to the situations where it is most justifiable, especially with reference to constitutional norms that require congressional text to govern and judicial review to be available and effective. This is in direct contrast to the Supreme Court of Canada’s unprincipled, automatic doctrine of deference.

Finally, consider the Commerce Dept case concerning a citizenship question on the census. The problem here was the Government’s explanation for why it wanted such a question. As Chief Justice Roberts explained:

We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process…[W]e cannot ignore the disconnect between the decision made and the explanation given. The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

This formulation of the requirement of so-called “hard-look” review frames the problem as one of public justification so that courts can scrutinize administrative action, as a corollary to the Rule of Law. To Professor Daly, this means that the “anti-administrativists’ caricature of fawning judicial servility to technocratic masters” is incorrect. But it is useful to note that the tools used to restrain judges pointed to by Professor Daly developed because of important critiques of the administrative state. Hard look review developed because of a broad trend towards pluralism, as explained by Martin Shapiro. This pluralism, which supported broader standing rules to challenge administrative action, also supported the creation of a new ground of review to ensure the adequacy of judicial review and the public justification of administrative actions. This trend was decidedly skeptical of administrative power, on the theory that agencies were “captured” by regulated parties. Far from being a welcome tool of administrative law, hard look review was and remains deeply contested. Those who might consider themselves Wilsonian progressives would balk at hard look review, even on procedure, because it means that courts are readily interfering in the policy and discretionary judgments of so-called “experts.” This says nothing of hard look review on substance. But administrative skepticism, and the requirement of public justification, cuts hard the other way in hard look review—which also means, like liberal standing rules, that agencies must be ready to defend its action before the courts and in the public eye (the APA is broadly representative of this trend).

For these reasons, each of the cases identified by Prof. Daly are not rejections of administrative skepticism. Rather, they are incorporations of a certain idea of administrative law as a control over the fiat of administrators. In this sense, reflexive deference and delegation met strong judicial rules and attitudes about controlling the administrative state. This might not amount to “anti-administrativism” but it means that the administrative critique is not without its judicial defenders. Professor Daly and I get to the same place; there are tools of administrative law available to control administrators. It just depends on whether judges use them, and from where they come.

All or Nothing At All?: Restricting the Growth of the Administrative State

Non-delegation limits do not spell the end of administrative government.

The Supreme Court of United States (SCOTUS), in the recent Gundy decision, once again rejected a challenge to a delegation of legislative power based on the so-called non-delegation doctrine. The non-delegation doctrine, in theory, holds that all legislative power rests in Congress, and so by necessary implication, Congress cannot delegate that power away to agencies without an “intelligible principle” to guide the delegation. In practice, the SCOTUS has only ever sustained a non-delegation challenge in a handful of cases in the New Deal era, instead endorsing wide delegations of authority to any number of administrative bodies for over 70 years. One might say that the Court’s reluctance to invoke the non-delegation doctrine is due to the important fuel that delegation provides to the administrative state. Indeed, one might argue that such widespread delegation is necessary for the project of “modern governance.”

But this is not necessarily true. Much of the discussion of limitations on the administrative state speaks in large generalities, and Gundy is no exception. The spectre of the destruction of the modern government that Americans (and Canadians) have come to know is always invoked by those who seek to preserve its power. But, if the non-delegation doctrine is constitutionally justifiable, its invocation in any of its instantiations will not end up destroying modern government. This is because non-delegation limits do not speak in absolute prohibitions, but rather limits in degree and emphasis; shifting the onus back to Congress to legislate within the confines of the Constitution. Canadians should take note and remain wary of arguments advanced by those who reject constitutional limits on administrative power based on functional scares.

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Gundy involved a delegation of power from Congress to the Attorney General, under the Sex Offender Registration and Notification Act (SORNA). Under SORNA, it is up to the Attorney General to decide whether the statute’s requirements for registration of sex offenders convicted before the enactment of the statute apply.

Nonetheless, based on existing doctrine, Kagan J for the plurality said that the delegation in SORNA “easily passed constitutional muster.” This is because, to Kagan J, the SCOTUS in a previous case had already cabined the Attorney General’s discretion in this regard by requiring that SORNA apply to all pre-Act offenders “as soon as feasible.” Taken in light of the context, text, and purpose of the statute, the Court found that the delegating language was sufficiently cabined in order to provide an intelligible principle, because the Attorney General’s discretion is limited to deciding when it is feasible to apply the statute. The Court, then, interpreted the statute to avoid the non-delegation problem, as it had done years previously in the Benzene Case.

This conclusion appeared driven not only by the law, but by the consequences of permitting a non-delegation challenge to succeed. Kagan J frighteningly noted that “…if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.” Alito J concurred in the result, but noted that should a majority of the Court wish to revisit the non-delegation doctrine, he would.

Justice Gorsuch penned an important dissent. In it, he criticized the plurality’s apparent waving-away of the delegation problem. In the litigation, the Department of Justice did not concede that the Attorney General was required to apply the statute to pre-Act offenders “as soon as feasible.” More to the point, the Attorney General has wide discretion to select the offenders, if any, that should be subject to the statute. For Gorsuch J, “[t]hese unbounded policy choices have profound consequences for the people they affect,” including criminal defendants. In light of Gorsuch J’s problem with the SORNA delegation, he proposed a new test. That test would permit Congress to delegate the power to “fill up the details” of a statute—so delegation would not be prohibited outright. And, the delegation of power may make the “application of that rule depend on executive fact-finding.” But for Gorsuch J, the intelligible principle doctrine “has no basis in the original meaning of the Constitution, [or] in history” and should be replaced by a basic requirement that Congress make the necessary policy judgments.

In response to the problem that some have raised that Gorsuch J’s test would spell doom for the administrative state, he responded as such:

The separation of powers does not prohibit any particular policy outcome, let alone dictate any conclusion about the proper size and scope of government. Instead, it is a procedural guarantee that requires Congress to assemble a social consensus before choosing our nation’s course on policy questions….Congress is hardly bereft of options to accomplish all it might wish to achieve.

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I think Gundy contains within it a number of important implications for the delegation of legislative power that apply in both Canada and the United States. The first question is whether it is really true, as Kagan J notes, that non-delegation would render most of government unconstitutional; the second is the sort of limits that one could envision applying to delegations of power.

The Kagan J criticism is a classic functionalist proposition. So the argument goes, if the Court enforces a non-delegation norm of any sort, it would interfere with the practical ability of agencies to implement their enabling statutes, hobbling modern government. And to some observers, it wouldn’t take a full-fledged non-delegation doctrine: even some limitations on administrative government could have “pernicious consequences.” But this strikes me as a vast overstatement, and a self-defeating one at that. First, if Kagan J is right that most of government constitutes a delegation problem as the Constitution is interpreted, what does that say about modern government? It says that government as constituted is a sprawling beast that has far outpaced the Constitution. Some might respond: who cares? But for anyone who cares about the Rule of Law, and government by law, the Constitution reigns supreme over the fiat of administrators. And if one is a legal formalist—as I am—then the arrangement of an extra- constitutional government is itself a problem for both intrinsic and instrumental reasons.

But I do not think what Kagan J says is true, on the facts of Gundy or generally. First, Gundy involved a very particular type of delegation: the power to essentially decide how a statute applies, if at all. Some might say that these sorts of delegations exist all over the map, and they may be right. But one can draw a meaningful distinction between delegations that are meant to “fill in the details” of a statute, even in a legislative sense, and delegations designed to give power to an administrator to decide how, when, and to whom a statute applies, as in SORNA. Gymnastics around “feasibility” aside, SORNA delegates wide power for the Attorney General to decide the scope of application of a statute. This allows him to make law outside of the requirements of bicameralism and presentment. And for instrumentalist reasons, this is a problem: the Rule of Law requires predictability, and why should those deserving the presumption of innocence be subject to the whims of a chief prosecutor as to whether their conduct violates the law?

Now consider the consequences if a non-delegation limit is imposed on Congress. This would not render most of government unconstitutional, nor would it have “pernicious consequences.” Such arguments mistake the mere existence of a limitation for its extent. No one—not even Gorsuch J—is suggesting that delegation itself is unconstitutional. Such a finding would, indeed, render unconstitutional administrative government. But limiting delegation to simply require Congress to speak in more detail would only minimally increase the transaction costs of legislating while paying much more ex post in terms of predictability and consistency with the Constitution. It is unclear to me why the proponents of the administrative state fight even this requirement.

And this flows into the second question. Assuming the non-delegation doctrine is constitutionally justifiable, there are any number of limits that could be imposed on delegations, each of which would not hobble the ability of government to delegate. Courts could require Congress to speak using a clear-statement rule when it chooses to delegate legislative power. This would be on the theory that the delegation of power has the risk to be extra-constitutional, and should be treated with caution from a Rule of Law perspective. The SCOTUS already accepted this sort of requirement in the Benzene Case, when it interpreted the statute at issue to avoid the delegation problem in absence of any clear statement in the legislation. While clear statement rules of this sort could be attacked from the perspective that they allow courts to put their fingers on the scale in favour of certain interpretive outcomes, one might respond that the preferred outcome in this case is one protected by the Constitution in the form of a limit or restriction on delegation. It is apparent that requiring Congress to use a clear statement would likely do nothing to stop modern government.

Courts could also simply enforce the intelligible principle doctrine on its own terms. That is, courts should simply ask whether there is a “principle” that is “intelligible.” Intelligibility would impose some requirement on courts to actually interrogate the policy aims of a delegation to determine its internal consistency, and perhaps question whether it actually provides guidance to executive officials. A principle that is unintelligible will not provide guidance. One could meaningfully question whether courts have actually applied the existing doctrinal instantiation of the non-delegation doctrine on its own terms.

Finally, non-delegation limits might be imposed by the elected branches: this was the approach that was seemingly advocated by then Professor Antonin Scalia in a paper he wrote after the Benzene Case: (the questions raised by delegation “…are much more appropriate for a representative assembly than for a hermetically sealed committee of nine lawyers”). Congress could simply start to speak clearly. The incentive for Congress to do this might be political. As I have noted elsewhere, the delegation of power can be wielded in either direction. Gundy provides a great example. The delegation of power to the Attorney General to decide when, how, and to whom a law applies is a great deal of power. Right-wing legislators might predict that, when they are not in power, such a power might be used against political causes they support. In the US, Democrats are already seeing how powers can be abused by the Attorney General. Of course, the power of the executive can filter through executive agencies, as well. If Congress itself recognizes the ability for delegated power to be used for ends with which it may not be sympathetic, it may have an incentive to limit and control delegation within constitutional limits.

None of these limitations spell the end of administrative governance. Far from it. I fear that the death knell of administrative government is a rhetorical tool used by administrative law functionalists who wish to preserve the power of the administrative state. But as Gundy shows, the powers conferred on executives by Congress can be vast—and the delegation of vast power can be abused, contrary to constitutional limits. All actors in the system have the ability and the responsibility to prevent that abuse, as a corollary to the Rule of Law.

The upshot of all of this is that the administrative state is likely here to stay, but it does not have to remain in its current form to be successful or useful. It can move towards consistency with the Constitution at a small marginal cost to its supposed efficiency and effectiveness.

The Cruel Ritual of the Ontario Bar Exam

Every June, lawyers-to-be in the province of Ontario make the pilgrimage to one of a few cities to undergo the ritualistic exercise of writing the bar exam. For many, the bar exam—otherwise known as the lawyer licensing exam—represents a large part of the process to become a lawyer in the province of Ontario. Students migrate into convention halls with their little Ziploc baggies of highlighters and granola bars, and carry in large bags their heavily indexed binders of material. But the Law Society of Ontario’s (LSO) bar exam is not an exercise in actually demonstrating competence. Instead, the regulator has imposed a search-and-destroy style exam on students, in which the charges must find the right answer buried in their indexed binders. If the goal of the bar exam process is to ensure that students have a minimal level of competence in the profession, it is hard to see how the bar exam achieves that goal.

More to the point, it appears that the only good justification for a bar exam of this sort is to teach students how to take a timed examination under strict conditions. But what purpose does this justification have in terms of competency for a lawyer? Indeed, other that imposing needless anxiety and pressure on already debt-burdened students, how does this ritual do anything for competency? Maybe it could be justified as a tradition that all lawyers should have to bear—but this seems like a thin reed on which to charge students for the pleasure of it.

Instead of taking the bar exam as a given, perhaps Ontario should start from first principles. What is the goal of the licensing process? Starting from the highest level of abstraction, the Law Society Act states that a goal of the LSO is to ensure that “all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide.” In its “Options for Lawyer Licensing: A Consultation Paper,” the LSO noted the following:

Lawyer candidates are required to demonstrate proficiency in respect of competencies that reflect the minimum requirements of both barristers and solicitors entering the profession in the seven areas of law that are most frequently practised. The current barrister and solicitor examinations provide a means of testing candidates’ abilities in core knowledge, application and critical thinking competencies, irrespective of their educational background.

With this connection to the competency requirement in mind, the LSO also defended its licensing process, citing only one article from American scholars:

The LSO’s licensing examinations are internationally-recognized as high-quality, psychometrically-defensible professional qualification assessments.

That relatively unsupported assertion aside, the LSO to its credit recognized in its consultation paper that the licensing process needed some amendment. In fact, the LSO outlined four options for the licensing process. Two of those options would add a “skills-based” examination to the existing bar exams. Indeed, the option ultimately chosen by the LSO would involve ”[c]onsideration of some form of skills testing in the licensing process.” But there did not appear to be a serious appraisal of whether the bar exam—from a common-sense, regulatory perspective—really advances the goals of competency. In other words, while some form of skills-testing is probably tied closer to a regulatory goal of ensuring competency, I fail to see how the mode of the existing licensing examinations does anything to even basically ensure that competency.

The Ontario mode is not the only one that could be followed. In Manitoba, for example, the focus of the process is almost entirely skills-based rather than examination-based. Instead, through the CPLED program, students are exposed to different tests in oral advocacy, writing, and other areas that are more directly related to lawyer competency. One can at least make the regulatory business case for this mode of testing as connected to testing lawyer competency.

I cannot say the same for Ontario’s whack-a-mole-style licensing examinations. While the LSO tries to suggest that its licensing exam is acclaimed internationally (simply on the basis of one US article), I truly would like to know, at the level of regulatory policy, the justification for a bar exam of Ontario’s sort. From where I am standing, it appears as nothing more than a cruel joke to already-burdened students.

Environmental Sustainability is Not An Unwritten Constitutional Principle

On the IACL-AIDC Blog, Professor Lynda Collins (Ottawa) suggests that “ecological sustainability [should be recognized] as an Unwritten Constitutional Principle (UCP)—a foundational, binding norm to provide guidance to courts and legislators as we navigate the difficult waters of our current environmental crisis.” This argument also appeared in a joint article by Prof. Collins and (now Justice) Lorne Sossin, where the authors link this nascent principle of environmental sustainability to the Constitution’s apparent status as a living tree. In short, without the UCP of ecological sustainability, or whatever the principle is defined as, “the Constitution would become ‘self-defeating’; to extend the metaphor, it would be a dying tree rather than a living tree” [318].

I strongly disagree with the thrust of both the blog post and the article. While environmental sustainability is a noble objective, and I commend the authors for saying so, interpretation of legislation or assessment of the legality of discretionary decisions cannot be driven by our own personal policy preferences (Hillier, at para 33) . Simply because environmental sustainability is a good idea does not make it a constitutional mandate. Accepting it as such would continue a dangerous trend in constitutional law—a desire to transform the Constitution into a vessel for popular modern policy objectives, thereby making it a document of majoritarian rule rather than a counter-majoritarian restriction on governmental action.

I first wish to show why environmental sustainability cannot be a UCP. Then I assess the dangerous implications of recognizing such a principle.

***

For a UCP to be recognized by a court, it must meet general certain criteria. In the Quebec Secession Reference, at para 49, the Court generally described these criteria as follows:

Behind the written word is an historical lineage stretching back through the ages, which aids in the consideration of the underlying constitutional principle. These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based….These defining principles function in symbiosis.

But these principles are not free-standing licences for judges to read-in modern “values” into the Constitution that is designed to be resistant to change. In fact, the principles are institutional or structural in nature. They “inform and sustain the constitutional text…” (my emphasis). Consider some of the commentary from the Quebec Secession Reference:

These supporting principles and rules, which include constitutional conventions and the workings of Parliament, are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive legal framework for our system of government. Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning [32].

[…]

The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scopes of rights and obligations, and the role of our political institutions [52].

Consider also the Court’s comment in the Patriation Reference, at 874:

[The Constitution of Canada includes] the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state.

These comments are clearly related to the role of unwritten principles in interpreting textual ambiguities in the constitutional text, which itself is designed to set out the institutional capacities of the state. The goal is to provide a “legal framework for our system of government.” This restriction means that unwritten constitutional principles, to be recognized, must bear some “vital” relationship to the constitutional structure and the history. These are not freestanding policy preferences: indeed, the Court said as much in the Quebec Secession Reference, when it opined that “the recognition of these constitutional principles…[cannot] be taken as an invitation to dispense with the written text of the Constitution” [53].

Some of the principles recognized thus far reflect this theory of unwritten principles as central to structural or textual concerns. Take, for example, federalism. A federal structure is established by ss.91-92 of the Constitution Act, 1867. Federalism, then, is “inherent in the structure of our constitutional arrangements” (Quebec Secession Reference, at para 56, my emphasis). Federalism responds to “underlying social and political realities” that are implicitly reflected in the “diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction” (Quebec Secession Reference, at paras 57-58). The limiting principle to all of this is the use of an unwritten principle to provide meaning to unstated assumptions or ambiguities inherent in the text or structure of the Constitution. Unwritten principles are not at-large.

So, in all of this, where does ecological sustainability stand? For Collins, either of “ecological sustainability,” “respect for the environment” or “environmental protection” “…meets all of the criteria the Supreme Court has set out for “Unwritten Constitutional Principles.” This is because—picking up on language in the Quebec Secession Reference—sustainability is the “lifeblood” of the Constitution, and a
“vital unstated assumption underlying the Canadian state.” Historically, Collins relies on various documents that show that sustainability is an unwritten constitutional principle. The Charter of the Forest (1217) apparently “guaranteed to British subjects rights of access to vital natural resources” and under Roman Law, the Justinian Code enshrined a version of the public trust doctrine. The Supreme Court itself has recognized that the environment is an important fundamental value (see British Columbia v Canadian Forest Products).

But there is a problem with all of this. It is one thing for environmental sustainability—whatever that means—to be a fundamental societal value. But what is the fundamental structural link back to the Constitution? One does not appear in either Collins & Sossin’s article or Collins’ blog post. As a legal matter, environmental sustainability appears separate and apart from fundamental institutional features that are either a part of British Westminster parliamentary democracy, or are otherwise central to Canada’s particular legal arrangements. Environmental sustainability may be a bedrock societal principle, but whether it is fundamental to the Constitution—which is not necessarily co-extensive with “society,” whatever that is—is a completely different question altogether.

Of course, one might say that ecological sustainability is the basic starting point for any society with a Constitution. That is, it is so fundamental that without it, there would be no world to begin with, hence no Constitution. This argument appears absurd to me, and though Collins seems to make it at some points, it never appears as a full-fledged contention—probably for good reason. For one, the argument as taken would make “ecological sustainability,” a goal without any limiting principle, the dominant organizational principle of the entire society. This would be on the assumption that without ecological sustainability, we’d all die. While protecting the environment is an admirable and necessary goal, no one would suggest that it is a goal to be achieved at all costs. Certainly regulators would not accept this proposition because regulation often involves an eclectic mix of performance standards, design standards, and other incentives that might delay the accomplishment of pure and complete “ecological sustainability.” And yet no one would deny that these measures are somehow unconstitutional because they are not sufficiently strong command-and-control regulation. The unlimited scope of the authors’ nascent principle is a significant problem for its own sustainability.

But more importantly, the Constitution could still exist in a world ravaged by climate change. And that is the key distinction between the principle of ecological sustainability and the other so-far-recognized unwritten principles of constitutional law. The other principles are essential to the workings of the Constitution as such—and I mean this in the most strictly construed manner possible. The Constitution could not exist in any meaningful way without these principles, such that they are “vital” to its operation. Federalism gives life to the textual division of powers. Respect for minorities supports federalism. The Rule of Law is fundamental to any constitutional system. Ecological sustainability is an admirable goal to be achieved by legislatures, but it is not related to the fundamental architecture of the Constitution, such that the Constitution (not society more generally) could continue to work without it. In fact, situations of climate emergency might be the most apt circumstances for the Constitution to work its magic.

***

I want to close by outlining some of the pernicious legal and practical effects of the sort of argument advanced by Collins and Sossin. On the legal front, the correlation that the authors draw between “ecological sustainability” and the “living tree” doctrine continues to prop up this dying metaphor as a doctrine of constitutional law. Take the authors’ footnote 70, which outlines this tenuous connection in the context of the Quebec Secession Reference;

Note the recurrence of biological language in this passage (“symbiosis,” “lifeblood,” “living tree”). This language arguably reflects an implicit understanding that all our human structures depend on our biological survival. In this sense there is no principle more fundamental than that of a healthy environment.

This footnote, more than any other argument I’ve seen, illustrates at least one problem with the living tree mode of thinking. Not only is that mode completely inconsistent with the overall perspective in the Persons Case, in this context, it allows enterprising scholars to draw connections and make arguments that are based primarily on the status of sustainability as an ideal policy goal. But that is not the concern of the Constitution, properly interpreted. The living tree is a constitutional aberration, not a constitutional doctrine.

And courts have been increasingly concerned with preventing judges—let alone scholars—from pouring their preferred policy outcomes into the Constitution. I cited Justice Stratas’ comments in Hillier, above. But consider also his opinions in Williams and Cheema, where the same principle was used to the same effect in the context of statutory interpretation. We always have to be on guard for the imposition of one’s personal policy preferences into the law, when those policy preferences do not represent the duly-enacted law of the responsible legislature. How would the people who believe in environmental sustainability like it if those on the opposite side of the spectrum sought to impose a principle of “resource development” in the Constitution, tying it to tenuous constitutional signals like the fact that the federal government has the power under s.91(2) to regulate trade and commerce? The question needs no answer.

Practically, it continues to be my view that there are certain things that are best addressed and constitutionally assigned to legislatures—not courts. Courts are not designed to vindicate the policy goals of the moment. And, for those sympathetic to the idea that environmental sustainability is a fundamental value of Canadian society, it would seem odd to suggest that courts in the adversarial system should be the ones to vindicate that value. Instead, wide study and a nuanced regulatory response seem to be the best options from a practical perspective. And yet the blunt force of an unwritten constitutional principle—that remains undefined, unclear, and unhelpful—emerges as the regulatory response in Collins and Sossin’s article.

Clearly, the environmental crisis needs a better answer.

“Clear Enough”

Some thoughts on statutory interpretation.

As I finish my graduate studies at  Chicago, it struck me that a major theme of legal design is the degree of perfection (if any) we should expect from legal rules. Drafted legal rules—whether by the legislature or judiciary—will always be over and underbroad, because rules of general application cannot foresee every idiosyncratic individual application. In such a case, the extent to which a perfect rule can be created is dependent on the extent to which we balance the error rate of application with the ease of administrability of a straightforward rule. Here, we will never come to a perfect balance, but we can try to come to something that is defensible and workable.

The same sort of consideration applies in the field of statutory interpretation. The most important issue in statutory interpretation is the clarity exercise—how clear is clear enough? Finding that a statutory text is clear on its face leads to a number of important consequences. For one, the Supreme Court has said that where text is “precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process” as opposed to purpose (Canada Trustco, at para 10). Additionally, the use of Charter values in statutory interpretation to gap-fill only arises where there is ambiguity in the ordinary textual meaning (BellExpressVu, at para 28). And, as Gib Van Ert points out, the Federal Court of Appeal seems to be adopting a similar rule in the context of international law.

Some may object at the outset to a consideration of “clarity” as a means of discerning legislative intent on a particular subject. This line of opposition is deeply rooted in the idea of legal realism, with its skepticism of judicial modes of reasoning and the rejection of abstract legal thought as a means to come to clear answers on the law. Representative works in this regard include John Willis’ “Statutory Interpretation in a Nutshell,” where he argues that, in modern legislation which uses wide language (often to delegate authority to others), literal interpretation does no good, essentially because the language is broad and unclear. And he notes that even if interpretation could be  clear or plain on its face, there are differences between judges as to what “plain” constitutes (see 10 and 11). Additionally, Karl Llewellyn’s classic article on the “dueling canons of interpretation” sheds doubt on the use of the canons of statutory interpretation to come to any clear meaning that is not inspired by motivated reasoning. Underlying each of these important critiques is a belief in the relativism and contingency of language. Clarity, on this account, is probably a fool’s errand, in part because ascribing an intent to the legislature is difficult with open-textured language, and in part because language itself is inherently unclear. If this is true, it will be the rare case indeed where a court should be convinced that a text is clear.

While this might sound good to a lawyer’s ear—especially a lawyer that is paid money to exploit ambiguities—it does not comport with the way we use language in the majority of cases. And this is where the example of crafting legal rules comes into handy. One might wish to craft a legal rule to cover all of the interstitial, idiosyncratic applications—ones that are weird or abnormal. But then we create a rule that might work well in the individual case, and not in the general run of cases. Instead, we should craft legal rules based on the 98% of cases, not the 2%: see Richard Epstein’s Simple Rules for a Complex World on this score. In the realm of statutory interpretation, this means that we should start with the going-in, commonsense presumption that language is generally clear in the majority of circumstances, after a bit of listening and synthesis. People transact in the English language everyday with no major kerfluffles, and even conduct complex business and legal dealings without requiring a court to opine on the language they are using. This underlying mass of cases never makes it to court precisely because English works. The problem with statutory interpretation cases, then, is the major selection effect they present. The cases that make it to court, where the rules are developed, are the cases that are most bizarre or that raise the most technical questions. Those are not the cases on which we should base rules of general application. Instead, the rule should simply be that English works in most circumstances, as evidenced by the fact that each of us can generally communicate—with only small hiccups—in the day-to-day world.

If that is the rule adopted, and if legal language is really no different in kind (only in degree of specificity and technicality), then a court should not be exacting in its determination of the clarity of a statutory provision. That is, if language generally works on first impression, then there is no need for a court to adopt a presumption that it doesn’t work, and hence that something greater than “clear enough” is required to definitively elucidate the meaning of a text. We should merely assume that language probably works, that legislatures know language, and that courts have the tools to discern that language. While we should not assume that language is perfect, we should at least assume that it is workable in an ordinary meaning sense.

This approach also has the benefit of commonsense. Perfection is not of this world.  The legal realists put way too high a standard on the clarity of language, to something approaching perfect linguistic clarity rather than semantic workability. We should not craft legal rules around the fact that, in some far-off circumstances, we can imagine language not working.

What does this mean in operation? The American debate over Chevron deference supplies a good example. Chevron holds that where Congress has spoken to the precise question at issue, courts should not afford deference to an agency’s interpretation of law. This is Chevron Step One. If Congress has not spoken clearly, the court moves to Chevron Step Two, where it will defer to the interpretation and uphold it if it constitutes a reasonable interpretation of law. In a recent case, Justice Gorsuch concliuded at Chevron Step One that the text was “clear enough,” so that deference should not be afforded. The clear enough formulation is reminiscent of Justice Kavanaugh’s article, where he explains the various divisions among judges about clarity:

I tend to be a judge who finds clarity more readily than some of my colleagues but perhaps a little less readily than others. In practice, I probably apply something approaching a 65-35 rule. In other words, if the interpretation is at least 65-35 clear, then I will call it clear and reject reliance on ambiguity-dependent canons. I think a few of my colleagues apply more of a 90-10 rule, at least in certain cases. Only if the proffered interpretation is at least 90-10 clear will they call it clear. By contrast, I have other colleagues who appear to apply a 55-45 rule. If the statute is at least 55-45 clear, that’s good enough to call it clear.

Kavanaugh’s approach is probably closer to the right one, if we accept the general proposition that language will be workable in the majority of cases. If there is no reason to doubt language, then clarity will be easier to come by. It is only if we go in assuming the case of unworkability that clarity becomes a fool’s errand. But from a perspective of legal design, this is not desirable.

Law has a reputation for being a highly technical field, with a laser focus on commas, semicolons, and correcting the passive voice. But at the level of designing legal rules, including rules governing language, the best we can hope for is workability, not technical precision. This is because designing rules involves tradeoffs between incentives, administrability, and fit. And because humans are not perfect, we cannot design rules at this level of abstraction that are perfect. As a result, in the language context, the best we can and should do is workability in the general run of cases.

Virtual Insanity: AI and Judicial Review

I am far from an expert on the growing trend in law and life towards “algorithmic justice,” or decision-making by machines. But a report released by the Law Foundation of New Zealand and the University of Otago got me thinking about the use of neural networks, predictive modelling, and other forms of algorithmic learning in the field of administrative law. Specifically, as these complex models and machines develop, there will be an urgent need for administrative law—conceived as a form of control over delegated decision-making—to adapt to its new subjects. The key question is whether new rules governing “machine-learning” administrative law need to be developed, or whether existing rules can be massaged to apply to new contexts. In my view, with some trepidation, I think our existing rules of administrative law developed over centuries can meet the task of regulating the brave new world of algorithmic justice. The New Zealand report raises a number of interesting issues, but I want to moot a few of them to show how our rules of administrative law and judicial review can evolve to the challenge of machine learning.

Consider first the problems of delegation that might occur when considering the use of machines to make decisions. One can imagine two scenarios. In scenario one, Parliament could delegate to a machine in an enabling statute to make decisions, such that those decisions are binding. In scenario two, Parliament could delegate to a human to make decisions, but the human—perhaps due to internal agency rules or guidance documents—might in turn subdelegate to a machine.

Each situation presents important challenges that traditional Canadian doctrines of delegation will need to meet. Take the first scenario. Why would Parliament ever delegate like this? The New Zealand report notes a worrying trend, among experts and non-experts alike: automation bias. Automatic bias occurs when human operators “trust the automated system so much that they ignore other sources of information, including their own systems” [37]. We might imagine a world in the not too distant future where Parliament, as entranced by “experts” as it already is in traditional administrative law, might trust machines more than humans.

For the New Zealand report, the real problem in such scenarios is the “abdication” of decision-making responsibility [40]. For Canadians, this language is familiar—as I noted in a recent blog post, Canada’s only restriction on delegation articulated by the Supreme Court is a prohibition on “abdication” of legislative power. What if a machine is given power to formulate and apply rules? This may constitute the abdication of legislative power because a machine is not responsible to Parliament, and it is worthwhile to ask whether a machine could ever be traditionally responsible—or if a human could be made fully responsible for a neural network, given that it is so difficult to disentangle the factors on which the neural network relies [42]. Rather than delving into this morass, courts might think about adopting an easily administrable rule that is based in the Constitution and the precedents of the Supreme Court: they may need to be more willing to apply a version of the non-abdication rule to the machine context than they would in the human context.

Scenario #2 is trickier. Here, there is no abdication problem at first blush, because the delegation runs from Parliament to a responsible Minister or decision-maker formally answerable in Parliament. But what happens when subdelegation occurs to a machine, and the machine makes the decision for the responsible delegated party? The existing law in this area does not seem to see a problem with this. Take for instance the rule that a decision-maker is permitted to adopt subdelegated investigative reports as the final decision (Sketchley, at para 36 et seq). Here, courts do not apply a more searching standard of review to subdelegated parties versus primary delegations.

But the existing rule presents new challenges in the context of machine learning. In the human context, where an agency head adopts a subdelegated party’s report, the lines of accountability and authority are clear. Courts can scrutinize the subdelegated report as the reasons of the agency. But the same possibility is probably precluded in the machine learning context, at least at first blush. Courts would need to know how and why humans have accepted the “thinking” of an algorithm; or it would otherwise need to understand the modelling underpinning the machine. While these sorts of factors would be apparent in an ideal subdelegated human report, they would not appear at first impression in a decision by a machine–again, especially if the way the machine has made the decision is not easily amenable to scrutiny by a human. In such a context, if humans cannot deduce the basis on which machines made decisions, courts should afford little weight to a machine decision, or otherwise prohibit subdelegation to such machines.

This might appear as a drastic response to the potentially boundless potential of machines. But much like expertise as a reason for deference, courts should only countenance the existence of machine decision-making to the extent that it is compatible with fundamental premises of the legal system, like the rule of law. While one could have different conceptions of the rule of law, most would concede that the ability of parties to seek judicial review is one of its fundamental elements (see, on this note, Crevier). Where a court cannot conduct judicial review, and administrative decisions are immunized from review, the decisiomn is not subject to judicial review through the ordinary channels. Courts already worry about this in the context of deficient administrative records on judicial review (see Tsleil-Waututh, at paras 50-51). The same concern is present where humans, for reasons of lack of expertise or technological impediments, cannot look behind the veil of the machine in a way that is cognizable to a court.

In situations where it is possible to deconstruct an algorithm, courts should, as an element of reasonableness review, insist that humans present the modelling to courts in a way that courts can understand. Just like when courts might be asked to review economic analysis and modelling, they should insist that experts  be able to deduce from complex formulae what the machine is actually doing and how it made its decision. Subjecting machines to the ordinary world of judicial review is important as a matter of the rule of law.

Of course, all these thoughts are extremely tentative, and subject to change as I learn more. But it seems to me that courts will need to, at the very least, adjust existing rules of judicial review to suit the modern world of machine decision-making. Importantly, we need not move machines out of the realm of normal judicial review. The rule of law says that all are subject to the law, regardless of status. Even experts—machines or humans—are subject to this fundamental tenet.