Category: Administrative Law

A Defense of Doctrine

Sometime ago, I was doing a presentation on the recent doctrine in a particularly contentious area of law at a Canadian law school. The presentation was designed to show how developments in the doctrine were inconsistent with fundamental principles underlying the doctrine, and that the doctrine should therefore be adjusted. I’m remaining at a high level of generality, because the details of the area of law don’t really matter.

When I finished my presentation, I received questions from the audience. Many were excellent. One was quite critical. But it was not critical on the doctrinal point I was making. Rather, the individual made the point–and I am paraphrasing–that the presentation was doctrinal. The gist of the argument was that doctrinal questions in law are too esoteric, not connected enough to the “real world,” and elide questions of empirics, morality, or otherwise.

My initial shock at the question–I was in a law school, after all–gave way to reflection. It seemed to me that this criticism, as I understood it at least, was way too broad. And if such a criticism is taken far enough, it can change entirely the expectations for lawyers and legal academics in a way that we are unequipped to handle.

At one level, perhaps the questioner’s point can be steelmanned. If one says that doctrine is all there is from a methodological perspective, legal analysis might miss something. Legal analysis that analyzes cases as a connected line of decisions, but unconnected to the philosophical or moral norms embedded in our legal system, will inevitably be incomplete (though all-things-considered moralizing is not the stuff of legal analysis). For a full picture of how the law actually works (at least at the functional level), empirics are important. In many ways–and despite the dangerous risks I will point out–the study of law has benefited from interdisciplinary work, done well.

But this questioner’s comment–and other trends I observe in the academy–lead me to think that the underlying argument is more radical. The point seems to be that the study of doctrine itself is the stuff of pedants; fiddling while Rome burns. On this account, if a legal academic is just studying doctrine, they are either complicit in the immorality of that doctrine, or they are unintentially missing the broader picture of how the law operates.

I think this criticism is misguided.

For one, as legal academics, we are trained in the law. We go to law school and graduate school to learn about the law–as it is, and in light of fundamental principles, perhaps how it should be. This is our craft. Without proper training, the further we go beyond this craft, the greater the risk of distortion or misinterpretation. This is why interdisciplinary work, particularly empirical work, carries such a great risk for legal scholars, despite its ascendancy in the academy. While legal scholars do produce good empirical work, no one suggests that this is the craft of the academic lawyer.

The specific craft of lawyers is also no more suited to philosophy or moralizing. In a memorable turn of phrase in the recent Rogers-Shaw decision, Justice Stratas tells us that judges are just lawyers who happen to hold a judicial commission. There is truth to this. While judges have been granted the power of judicial review of legislation under the Constitution, the problem is not this grant of power per se. Rather, it is the pretense that judges have special insight into the moral values of Canadians in exercising that power, as opposed to special insight into the law. When judges stray from the legal craft, it becomes irresistible for the public to conclude that lawyers have some special insight into the way the world should be. A dose of humility should tell us why this is wrong.

On the fundamentals, I worry about the degradation of doctrine. As Paul Daly pointed out in a recent piece, the role of doctrine in legal analysis is not the stuff of pedants. Decisions that are reached according to settled principles enhances public legitimacy of those decisions. Justified departures from those decisions can sometimes be warranted; but this is the point, they must be justified according to fundamental legal norms. Doctrine cabins in all-things-considered moralizing, which–as I have pointed out–lawyers are no more equipped to handle than anyone else. When crisis strikes–pandemics, war, what have you–floating adrift on a sea of political or moral theory (or worse, the say-so of someone in a robe) will only distort the sort of legal protections upon which Canadians have come to rely. This is not to say that the law is fool-proof and all-protective. Law is a human creation. Nonetheless, it is for this reason that doctrine serves an important legitimating function.

This is where the doctrinal methodology, best-suited to lawyers, comes in. Lawyers who study doctrine should not shirk from doing so. The clarification and study of doctrine can assist judges in reaching reasoned decisions that best reflect the legal materials. Whether we like it or not, the common law method is the bread-and-butter of legal decision-making. Someone needs to step into the role to study the doctrine, to try to make sense of things that could elude the attention of the philosopher or political scientist.

I’m glad the questioner phrased the challenge in the way they did. In a way, it provided an opportunity for reflection on the important, continued role of doctrine. The only error, to my mind, is hubris in either direction–a confident belief that doctrine doesn’t matter, or a confident belief that doctrine is all there is. But for the academic lawyer who finds a home in the weeds of doctrine, there should be no shame.

Simplicity in the Law of Judicial Review of Regulations: Auer and TransAlta

This post is derived from this week’s edition of my newsletter, the Sunday Evening Administrative Review.

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Auer v Auer, 2022 ABCA 375 (November 22, 2022); TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 (November 23, 2022)

Context and Holding: In these decisions, the ABCA deals with the question of how courts review regulations for compliance with primary law. The cases hold that the framework set out in Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64 applies, rather than the revised judicial review framework in Vavilov. In so doing, the ABCA sets itself up directly opposite from the Federal Court of Appeal, which has endorsed Vavilov as the starting point for the review of regulations: Portnov v Canada (Attorney General), 2021 FCA 171 (Issue #7). It is also set up opposite the BCSC/ BCCA: see e.g. Pacific Wild Alliance v British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2022 BCSC 904 at paras 68-75; Whistler (Resort Municipality), 2020 BCCA 101.

Analysis: As readers of this newsletter will know, I strongly disagree with the ABCA’s conclusion, and the reasons underlying it. Reading Auer and TransAlta together, the ABCA advances several reasons for preferring the “hyper-deferential” Katz framework for the review of regulations over Vavilov:

  1. Vavilovian reasonableness impermissibly invades the exercise of legislative powers, violating a core tenet of the separation of powers. Katz “maintains the integrity of the separation of powers and the role of the legislative branch of government. It ensures that courts do not enter the legislative field by weighing in on matters that properly fall within the sphere of the legislature and the executive” (Auer, at para 58; see also para 83). Or as put in TransAlta, at para 50: “[t]o decide whether a valid regulation is, in outcome ‘reasonable’ is to judge the merits of the path chosen by the delegated lawmaker to achieve the objectives of the enabling statute.”
  2. Vavilov cannot be taken to implicitly overturn Katz: it makes only one passing reference to Katz (see Auer, at para 42; TransAlta, at para 47).
  3. There are practical problems with applying Vavilovian reasonableness review to regulations. As Auer notes, “…[m]any of the contextual factors highlighted in Vavilov simply have no application to a vires review” (Auer, at para 77).

I will respond to these three concerns, but I first want to highlight a core feature of my response. There have long been debates in the law of judicial review over the need to “limit and simplify” versus the need to “tailor deference to variety” (US v Mead Corp, 533 U.S. 218 at 236). Of course, this is rarely a binary, and because of the subject matter, some consideration of variety will be necessary (as Vavilov‘s acceptance of context demonstrates). This is inevitable. Nevertheless, I am on the side of limitation and simplification to the extent possible. The fact that administrative decision-makers come in all shapes and sizes does not mean we require legal rules that track every individual type of decision-maker or decision, absent any fundamental reason. To my mind, all that is required is: (1) the recognition of fundamental principles that guide the doctrine (in Vavilov’s case, legislative intent and the rule of law); (2) the creation of general, all-purpose doctrinal rules plausibly connected to these principles; (3) guidance on how to apply the doctrine.

Vavilov and its progeny accomplish this. While Vavilov is, admittedly, contextual, it simplifies judicial review because it provides (1) a set of standard of review categories that plausibly map to legislative intent and the rule of law (though imperfectly); (2) on the reasonableness standard, it provides guidance about the contextual constraints that are relevant in a given case–this guidance limits these constraints so courts and litigants know when they will be relevant. Most importantly, when I speak of simplicity, I think of the fact that Vavilov provides an agreed-upon starting point, connected to fundamental principles, for all review of action of all kinds taken under delegated power. In this sense, Vavilov is a hard-won template. As we will see, the recent case of Law Society of Saskatchewan v Abrametz, 2022 SCC 29 (see Issue #48), inexplicably unmentioned by the ABCA, endorses the “start with Vavilov” idea on a question outside Vavilov’s contemplation: procedural fairness. This shows Vavilov’s utility as a general framework.

Starting with the same well of conceptual resources for all sorts of decisions simplifies the law of judicial review, and is no small thing. Simplification isn’t just aesthetic. Lawyers—to their detriment—sometimes overcomplicate matters beyond what is necessary, perhaps out of academic self-satisfaction. But the reality is this: the law of judicial review must be workable. It must connect to fundamental principles but at the same time be applicable by judges and understood by parties who bear the brunt of state action. This is the gargantuan challenge of administrative law. In this sense, Vavilov has done an extraordinary thing by largely accomplishing this goal. Parties now tend to argue about the merits of their cases rather than the standard of review. The ABCA’s discursus on Katz, unfortunately, is a step back to the old days of distinctions between legislative/quasi-legislative/adjudicative functions, where there are islands of government power uninhibited by the regular law of judicial review. If there was a compelling reason in principle for this, that is one thing. In this case, the Court’s decision endorses Katz because of its own erroneous perception of what the separation of powers, Vavilov, and general principles of administrative law require.

On to some specific points of contention:

  1. The ABCA’s separation of powers argument does not get off the ground because of (1) a fundamental (though understandable) confusion about the word “merits” in Vavilov; and (2) a confusion about the role of secondary legislation. As Paul Daly argues, (1) leads the ABCA astray. Auer says that “[a] true Vavilov approach can only be accomplished by the reviewing court descending into a consideration of the merits of the policy decisions underlying the regulations and formulating its own reasons why the regulation was a reasonable policy choice” (Auer, at para 75). As Daly says, it is true that Vavilov speaks of its framework applying to the “merits” of administrative decisions (e.g. Vavilov at paras 2, 10, 16). But this does not mean that Vavilov endorses a judicial questioning of the policy wisdom of an administrative decision. This simply cannot be the case as a matter of fundamental principle. Vavilov’s reference to merits, instead, refers to the substance of administrative decisions as opposed to procedural concerns. As is well-known, judicial review polices the boundaries of the administrative state according to the concepts of legality, reasonableness, and fairness. This is different than questioning the policy merits of an administrative decision in the abstract. Judicial review—and Vavilov reasonableness—does not mean that courts arrogate to themselves the right to make certain policy choices. A few specific examples are relevant to show how this works throughout the law of judicial review:
  • In Alberta Teachers’ Association, 2011 SCC 61, the Supreme Court addressed the situations in which it would be appropriate for litigants to make new arguments on judicial review. Generally, the presumptive rule is that new arguments cannot be made on judicial review, because “the legislature has entrusted the determination of the issue to the administrative tribunal” (Alberta Teachers, at para 24). This is a recognition that judicial review cannot proceed as a trial de novo, a recognition of the space left to the decision-maker to flesh out the law in its field so long as the decision fits within the purview of the statute.
  • As the Federal Court of Appeal has stated with reference to new evidence on judicial review, the same rule applies because the legislature delegated the power to the administrator to “determine certain matters on the merits”; permitting new evidence routinely would undermine the demarcation between legislative and judicial roles, and so “[t]his Court can only review the overall legality of what the Board has done, not delve into or re-decide the merits of what the Board has done” (Association of Colleges, 2012 FCA 22 at paras 17-18).

Deference under Vavilov takes on a similar hue. Courts do not reweigh the evidence on judicial review (Vavilov, at para 125); deference necessarily involves a restriction on the court in intervening with an administrative decision-maker because that decision-maker has been delegated the power to make decisions (Vavilov, at para 13). These decisions may have policy consequences, but courts do not second-guess those consequences; they only ensure that a particular decision fits within the purview of the statute, and meets the basic requirements of rationality. This is even so where regulations are made after submissions in a legally-defined process: in such a case, the submissions form part of the record that courts use to assess whether the secondary legislation is justified by the law and the facts to which it applies. None of this involves, properly applied, an impermissible intrusion into the realm of lawmaking because the court is not formulating policy alternatives nor weighing in on which alternatives are best. It is only asking whether the action fits the bounds of the law and the evidence, like it does for all executive action. Indeed, this is the same rule we apply to all acts taken by the executive under statutory authority, including municipalities and other bylaw-creating bodies. As I will point out, the sweep of Auer/TransAlta is unknown, and presumably it should capture these bodies as well.

This is related to the second problem. The ABCA skirts over what I consider to be the real issue: the subordinate nature of what we call “executive legislation.” The ABCA’s entire point apparently seems to rest on the assertion that regulations are part of the primary legislative process—that, legally, the exercise of legislative powers by the Governor in Council is subject to the same rules that apply when Parliament enacts laws as an exercise of primary legislative authority (Auer, at para 53, citing Mikisew Cree First Nation v Canada, 2018 SCC 40 at para 32). Primary legislative authority is the authority to “enact, amend, and repeal statutes” (Pan-Canadian Securities Reference, 2018 SCC 48 at para 76). These statutes cannot be reviewed except for constitutionality, and this was the context of Mikisew Cree (notably not executive legislation). But this ignores a fundamental distinction between primary and secondary legislation. Inexplicably, the ABCA recognizes that regulation-making is “an act incidental to the legislative process” (Auer, at para 56), but does not take this to the logical conclusion. Secondary legislation (regulations) is subordinate legislation, which must fit the terms of the primary legislation. But regulations can be reviewed in order to determine whether they fit the scope of their enabling statute. Read literally, Auer seems to prove too much: if one simply transposes, as Auer does, the primacy of primary legislative authority to secondary legislation, one is endorsing a “hands-off” approach in judicial review altogether when it comes to executive legislation. But as we know, even if we follow Katz, secondary legislation can be reviewed to determine its fit with the governing statute, and so the analogy Auer draws to the primary legislative process is inapposite.

The point here is that secondary legislation is still executive action, amenable to review like all executive action–with the caveat that because of the legislative form of the action, it will be reviewed under Vavilov in a certain way (see point #3 below).

  1. The “Vavilov does not mention Katz” argument has been made before: see e.g. Ecology Action Centre v Canada (Environment and Climate Change), 2021 FC 1367, and this post from Martin Olszynski and I. We were not impressed with this argument at the time, and I remain unimpressed, for two reasons. First, the “Vavilov does not mention x” argument has lost a lot of steam after Abrametz. Again, Abrametz held that questions of procedural fairness that arise under a statutory right of appeal are reviewed under the appellate standards. These questions were not mentioned in Vavilov. Following Abrametz leaves the ABCA on shaky territory. Second, as Prof. Olszynski and I wrote, the question is not whether this or that case was mentioned. Vavilov tells us where (as with Katz) there is a question as to the appropriate standard of review, a court “should look to these reasons first in order to determine how this general framework applies to that case” (Vavilov, at para 143). The ABCA in Auer and TransAlta do not even attempt to do this. This is despite the fact that Vavilov is a “holistic” framework (Vavilov, at para 143), one that is “sweeping and comprehensive” (Portnov, at para 25). Auer and TransAlta suggest that courts use a magnifying glass to see if particular examples of executive action are mentioned within Vavilov. This is unnecessary. They simply need to follow Vavilov’s general principles, as outlined in Vavilov, at paras 143-144.
  1. The practical problems of applying Vavilov to regulations, with respect, do not exist. When Auer maintains that some of the legal and factual constraints listed in Vavilov do not apply in cases of regulation, the Court appears to misunderstand how Vavilov works. Not all of the constraints have to apply in a given case for Vavilov to be relevant. In some visa decisions, for example, statutory interpretation will not be the forefront consideration—these cases generally turn on evidence and findings of fact. With regulations, the dominant constraints will be the legal ones mentioned in Vavilov, and in many cases, deference will be expansive. This is not a surprise, though perhaps it is to the ABCA, which erroneously sees Vavilov as a more intrusive standard, always and everywhere (Auer, at para 61).

But the Court is also is too quick to discard the other constraints because it focuses on only one type of regulation-making: secondary legislation of general application. But as Portnov shows, this is not all there is. Portnov concerned the Governor in Council’s ability to “issue an order or regulation restricting or prohibiting any dealings with certain property held by designated individuals,” eighteen in total (Portnov, at paras 3,5). In such a case, the mere fact that the Governor in Council proceeded by secondary legislation does not immunize it from review on Vavilov grounds. In such a case, the statutory prequisites to the exercise of the power will be central. But because the court must also discern how the Governor in Council understood the authority granted to it under the primary statute (ie) to apply a regulation in these limited circumstances, the record must disclose the Governor in Council’s basis for its legal conclusion as applied to these individuals. In other regulatory cases, determining whether the regulation is justified by the primary law will depend on what explanations find their way into the record. This is the nature of Vavilov review, which is not always and everywhere more aggressive than Katz. Indeed, when we apply this review in cases of other “legislative” bodies including law societies and municipalities, the review looks fairly deferential, respecting the legislative posture of these bodies. While the Court calls this state of affairs “confusing,” (TransAlta, at para 49), I beg to differ: the same contextual constraints from Vavilov apply, with different force depending on the decision at issue. Regulations, if they are not primary legislation, are similarly nothing special as executive action.

I could say more—I hope to in longer form soon. But I end where I began. The ABCA’s approach will complicate the law of judicial review, not just because of its endorsement of a carveout for Governor in Council regulations. We do not know how far this could go. Are regulations made by agencies with a responsible Minister also captured by this rule? The logic should follow—and yet it would be a stretch to say that agency law-making is the same as primary law-making, especially given the deficiencies in the scrutiny of regulations process. What about rules of binding “legislative” effect created by agencies? These are unanswered questions left open by these decisions. The bottom line: when in doubt, start with Vavilov.

Paul Daly
John Mark Keyes

Standing Isn’t Free

On the importance of thinking about costs, as well as benefits, of judicial review of administrative action

NB: This post has been prompted by my teaching and is first addressed to my students in Public Law 2 at Reading, but I hope that other readers, at least those interested in administrative law, will also find it of interest.

Who can challenge an administrative decision: only the persons directly affected by it or, well, just about anyone? This is the question of standing. US law resolutely sticks to the narrow view (as will be apparent, for example, from the discussion of the prospects of the challenges to President Biden’s debt-cancellation plan on this recent episode of Advisory Opinions). But Commonwealth jurisdictions have tended to take a broader view.

As Lord Hope put it in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868, (even as he disclaimed “risk[ing] a definition of what constitutes standing in the public law context”), “the interest of the person affected by or having a reasonable concern in the matter to which the application related” is enough. [63; emphasis added] This means that “[a] personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent.” [63] Or, in the more colourful words of Palmer J in Smith v Attorney-General [2017] NZHC 1647: “The requirement of standing in judicial review proceedings has been significantly relaxed in New Zealand. But it is not so relaxed that it is horizontal. It still exists.” [2] While there are differences between the UK and New Zealand approaches, this description is apt for UK law too.

But is this very considerable relaxation of the standing requirement ― when you need to say that something “still exists”, its existence, evidently, is a matter of some doubt ― a good thing? Or does the stricter, American-style, approach has something to recommend it? It is not, after all, without precedent in English law too. In R v Environment Secretary, ex p Rose Theatre Trust [1990] 1 QB 504, Schiemann J insisted that “the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated”. (522) Doesn’t it, though?

The other view is exemplified in a much quoted (and sometimes implicitly referenced) statement of Sedley J in R v Somerset CC Ex p Dixon, [1998] Env LR 111 (1997):

Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs —that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. (121)

The idea is that the law must see to it that public wrongs are set right, and that it matters little who commences the litigation that may lead to this beneficial result. The way I put it to students in my public law tutorials is that the people who take this view emphasise the “review” part of judicial review ― in contrast to those who stress the “judicial” part and so are wary of transforming courts into general-purpose defenders of the public interest.

But to say that an area of the law “is about wrongs” is not enough to show that it must make it possible to identify and ensure consequences for every wrong of the relevant kind that occurs. Just as the socially optimal amount of crime is not zero, so to the socially optimal amount of misuse of public power is not zero either. Some wrongs should actually go unredressed. The idea might seem counter-intuitive, but it makes good sense. The costs of a wrong, be it crime, misuse of public power, or anything else, must be set off against the costs of preventing or rectifying it. If prevention or redress consume more resources (money, time, brainpower, etc) than are lost as a result of the wrong itself, or indeed if they generate further wrongs, then they are wasteful, from the standpoint of society.

In the context of crime, this means, for example, that we wouldn’t want a police officer on every street corner. While their presence would probably deter and possibly help solve some meaningful number of crimes, it would be very costly. The cost, to be clear, is not just money, though that’s part of the story. Salaries are indeed costly, but so are the unseen opportunities lost due to all these people not doing something more productive than standing on street corners. And so, too, is the possibility that they may, if only to occupy themselves, harass or arrest people who are quite innocent.

Recognising all this does not mean that we do not care about crime and about the Rule of Law. As Lord Reed put it in AXA, “the protection of the rule of law does not require that every allegation of unlawful conduct by a public authority must be examined by a court, any more than it requires that every allegation of criminal conduct must be prosecuted”. [170] Acknowledging the costs involved simply means being realistic about the constraints that apply when our ideals come into contact with reality.

The same sort of thinking should apply in public law. While Sedley J and other advocates of expansive standing (such as Lady Hale) do not acknowledge this, some public wrongs are not worth redressing through judicial review because of the cost of doing so. Timothy Endicott’s Administrative Law textbook does make this point. Professor Endicott writes that “the test of standing is a proportionality test. … Proportionality in this case is a relation between the value of hearing a claim for judicial review and the process cost, and any process danger that may result.” (415) I think this is basically the right idea, but it worth unpacking further.

Professor Endicott’s review of the decided cases suggests that courts do, in fact, attach some importance to “the value of hearing a claim”, in that standing is the more easily granted the more serious the claim raised in a case is. And it is not exactly a surprise that courts would pay some attention to this despite sometimes embracing the justice-at-all-costs rhetoric exemplified by Sedley J’s dictum. I have argued here that something similar happens in the realm of procedural fairness. But this is only one side of the proportionality equation.

What about “process cost” and “process danger”? Professor Endicott’s survey suggests judicial interest in this may be limited, and he too has comparatively little to say about these things. I’m not even quite sure what the distinction between “costs” and “dangers” is. Carol Harlow’s article “Public Law and Popular Justice” focuses on a particular set of such concerns, perhaps dangers rather than costs: those that have to do with courts being transformed into political institutions and/or made to address polycentric problems for which they lack institutional competence.

I think these dangers are real, but there is more, too. I discussed the costs (and the benefits) of judicial review in an old post here. I won’t rehash everything I said then, but one point that bears repetition is that

all judicial review is in a real sense superfluous. Ordinary litigation is necessary in order to provide the parties with an authoritative determination of their legal position when that position is unknown or contested … But judicial review is not necessary to do this. The legal position of the party or parties involved has already been authoritatively determined … by an administrative decision-maker.

Perhaps I should have used a different word: judicial review is not so much superfluous as it is redundant, in the sense of providing an additional layer of protection to a system that could operate without it ― but at some real, and perhaps unacceptable, risk.

Be that as it may, the costs of judicial review, even those that accrue in any legal proceeding, are thus particularly significant. And some are peculiar to judicial review. Among other things, judicial review risks both unwarranted interference with the legitimate activities of government (insofar as anything the government does is legitimate) and, conversely, undue legitimation of government decisions that, while lawful and hence deserving of being upheld, are daft, immoral, or both. Ignoring these (and other) costs of judicial review does not make them go away; nor does it somehow strengthen the Rule of Law.

The other concern I have with Professor Endicott’s approach has to do with the concept of proportionality. As in human rights law, it seems to invite a comparison of things that cannot be assessed on anything like a common scale. As noted above, the costs of judicial review are not all reducible to pecuniary expenses, and its benefits are of course not pecuniary at all. How can we know that one is proportionate to the other? Professor Endicott argues that courts have not struck the right balance, allowing cases where there was no sufficient public interest in having the claims litigated to be brought forward, but with a proportionality approach, such arguments are inherently subjective.

What is more, case-by-case analysis of proportionality exacerbates what Professor Endicott laments as “[t]he irony of process”. This arises when

parties … need to be given more process than is actually due to them [because a] claimant without a sufficient interest in a matter is not entitled to be heard, but it is often necessary to hear the whole story from the claimant and the defendant in order to decide whether the claimant has a sufficient interest. (417; emphasis removed)

This, of course, only adds to the costs of judicial review: debates about standing have to be considered, on top of those of the substantive disputes.

In light of this, it is tempting to look for alternatives to proportionality in the form of clear, rigid rules. They might, of course, not be exactly right: perhaps they will allow some claims to go forward that should not, as is already the case now, Professor Endicott suggests. Or perhaps they will result in some unlawful decisions not being reviewed even though they should be. But if these rules can be applied straightforwardly and predictably, they will still be preferable to the uncertain proportionality approach, provided that they are reasonable proxies for where a case-by-case analysis would end up.

The argument for a narrower approach to standing, limiting it to those whose legal rights and obligations are directly affected by the administrative decision they seek to challenge, would have to be that this rule helps us distinguish those cases where the lawfulness of administrative action should be tested from those where doing so would be wasteful in a way that is more efficient than the proportionality approach preferred by Professor Endicott or the easy-going approach now preferred by the courts. I think this is possible: the redundant nature of judicial review is particularly salient in case where the applicant’s right and obligations are not involved, and it may be that it is also in those cases that the risks of undue interference with government, and perhaps also of undue legitimation of legally sound but morally questionable decisions arise. But this is just a tentative view for now.

What I am confident about is we must not neglect the costs of judicial review, even as we study and perhaps promote its importance and advantages. The ideals we seek to realise through the law are seldom unmitigated goods, and we do them no justice by forgetting about this. In judicial review as elsewhere, in the heavens as in on Earth, TANSTAAFL.

The Post-Vavilov Supreme Court and Administrative Law

Reason for optimism?

After the Supreme Court’s recent decisions in Abrametz and ESA (both of which are summarized and analyzed in my newsletter here and here, respectively), there is much to say.  But I just want to quickly identify one emerging trend: the centrifugal force of the principles in Vavilov in areas of administrative law not immediately in its contemplation. For reasons I hope to outline in future work, I think this trend is positive, because the sweeping and comprehensive approach in Vavilov provides a set of plausibly, administrable rules that reduces the amount of time spent on finding the standard of review, among other things. This is a good thing because the law of judicial review shouldn’t be overly complex. It is designed to be quick, on the record, and facilitative for individuals challenging government action. Labyrinthine doctrine stifles that purpose.

 For now, though, I only write to highlight a few examples of this trend I identify:

  • In Abrametz, the question of the standard of review for procedural fairness issues arising in a statutory right of appeal was at issue. For a majority of eight, Rowe J applied Vavilov’s holding on rights of appeal (the appellate, not judicial, standards apply) to the issue of delay (Abrametz, at para 27). This was despite the majority’s acknowledgement that this “proposition was stated in the context of substantive review.” This was also despite the fact that the orthodox view is that correctness applies to issues of procedural fairness (set out in cases like Khela). As I outlined in my newsletter, I think this move is justifiable, and it may raise questions about assimilating all issues of procedural fairness to Vavilov’s rules and standards. This is not an argument I can explore here, but it has been mooted in the courts (e.g. Maritime Broadcasting, at para 50). That said, one will likely find a resolute voice in favour of hard-line correctness review on all issues of procedural fairness: see Côté J’s dissent in Abrametz. And the move made in Abrametz regarding rights of appeal is a much easier hill to climb than a full-on application of Vavilov to issues of procedural fairness.

  • In ESA, the question was whether the laws like the Copyright Act that confer jurisdiction over the same questions to courts and the Copyright Board invite the correctness standard. In Rogers, a previous Supreme Court case, the Court recognized this as an appropriate circumstance to deviate from a reasonableness standard. For a seven judge majority, Rowe J again approached the problem by asking how Vavilov altered the Rogers standard (ESA, at paras 24-25). This was because—as I argue—Vavilov “simplified the law” (ESA, at para 24) and “overtook the prior jurisprudence” (Vavilov, at para 14). Analyzing the problem from the perspective of Vavilov’s principles of legislative/institutional design and the rule of law, Rowe J recognized the Rogers exception as an additional category that would attract correctness review. It is “analogous” to a statutory right of appeal (ESA, at para 32) and inconsistencies could arise between judicial and administrative interpretation, undermining the consistency and systemic clarity required by Vavilov’s idea of the rule of law (and, I argue, the Supreme Court’s other precedents). Karakatsanis J and Martin J said the majority’s conclusion “undermines Vavilov’s promise of certainty and predictability” (ESA, at para 117) because despite the fact that Vavilov “obviously considered” cases like Rogers, it did not choose to recognize it as an example of a case requiring correctness review (ESA, at paras 117, 124). In fact, if anything, it implicitly (but not “inadvertently”) overruled it (ESA, at para 125). While I do not agree with the concurrence’s worry about the majority’s decision, I note that the concurrence, too, sees Vavilov as a simplifying, cohering mechanism—it just reads Vavilov differently (in my view, much too narrowly—see Vavilov at para 70, which focuses on the application of its principles in future cases).

These Supreme Court examples only serve to buttress trends in the lower courts. In Portnov, for example, Stratas JA in the Federal Court of Appeal held that the bespoke standard of review analysis for regulations set out in Katz should be foreclosed and assimilated to Vavilov’s reasonableness standard (Portnov, at paras 24-28). And even beyond the grounds of substantive or procedural review,  Boivin JA in Ermineskin Cree Nation merged considerations of judicial discretion and cost-expediency in the question of whether a case was moot; in so doing, it tied an important consideration underlying Vavilov’s discussion of remedies on judicial review to the preliminary issue of mootness (see Ermineskin Cree Nation, at para 41; Air Canada, at para 14). What’s more, there is debate in the lower courts, and even at the Supreme Court, about the standard of review on arbitral appeals: whether the standard is reasonableness or the appellate standards, as prescribed by Vavilov (see here).

In all of these examples, we see Vavilov potentially doing a lot of conceptual work.  Not only are its principles affecting substantive review (ESA), but also preliminary objections to judicial review (mootness), and further, even in domains not necessarily within the Vavilov Court’s express contemplation (Abrametz). Nonetheless, it appears as if a number of judges on the Court are viewing Vavilov not only as a good encapsulation of accepted administrative law values (primarily, institutional design and the rule of law, but also discretion and cost-effectiveness), but a plausible set of operational rules deduced from those values.

For my own reasons, I think the overall effort in Vavilov was sound. In theory, there are some imperfections in Vavilov. I’d much prefer, for my part, a Chevron-like approach to judicial review of administrative action, which doesn’t start from a presumption of deference, but which asks courts to interpret whether the statutory language can support “more than one answer” in the first place. Nonetheless, I can live with Vavilov because it is a clear rule with clear exceptions, and we get something like Chevron  on questions of law when we apply the reasonableness standard (though this does not solve the fundamental issue: see Leonid Sirota here). The presumption of reasonableness is rooted in a plausible, though imperfect, conception of legislative delegation (again, I have my own fundamental objections to it—delegation does not necessarily equal deference). But the “wrongness” of the presumption, in my view, is mitigated by sound exceptions to its application in cases where there is a clear contrary signal “subtracting” from the specific delegation (rights of appeal, concurrent jurisdiction); where the question at issue transcends the legislative delegation (constitutional questions, for example); or perhaps even when it is unclear the delegation extends to the decision-maker at all (see here). And as I say, even on questions where reasonableness applies, we get an approach that takes into account administrative legal errors, statutory language, and which forces more extensive justification to facilitate judicial review on the reasonableness standard.

We live in an imperfect world, and in my view, this old trope extends with even more force to the law of judicial review. So at the end of the day, imperfections in the theory and doctrine do not undermine the workability that Vavilov has achieved. Because selecting the standard of review is categorical, theoretical imperfections aside, the process is much simpler. As I say above, certainty and predictability in the law of judicial review should be built-in, so that citizens can understand how to challenge government action. What I think Vavilov has done is settle the fundamentals, allowing development around the edges, while providing a sound starting point for that development. For this reason, I agree with the overall trend: courts should look to Vavilov’s principles to infuse, to a greater or lesser degree, the doctrine of judicial review where relevant.

Some Major Questions About Major Questions

In West Virginia v EPA, the Supreme Court of the United States, wielding the “major questions doctrine” found that the EPA did not have the statutory authority to adopt regulations implementing the Clean Power Plan, initially proposed by the Obama administration in 2015.  In this post, I describe why I think this decision was ultimately misguided, how the major questions doctrine might be recast, and why some of the dissent’s concerns are themselves misguided. In short, while I share concerns about agency opportunism, I do not think this judicial creation is the solution.

Under the Clean Air Act, the EPA has broad authority to establish regulatory “standards of performance” in relation to certain categories of pollutants. These include the adoption of the “best system of emission reduction,” taking into account various factors, that the EPA administrator “determines has been adequately demonstrated.” Under this provision, the EPA adopted a “generation-shifting” system rather than a plant-by-plant regulation system; in other words, it decided that the “best system of emission reduction” included generation-shifting. A generation-shifting approach, as I understand it—such as cap-and-trade, or investment in alternative sources—is a different sort of regulation because it purports to operate on a system-wide basis, rather than on an individual source basis. The EPA’s regulatory choice thus cut rather broadly to attack emissions across different sectors. There is much more detail in the opinions that I am leaving out for the sake of brevity.

The majority opinion (Roberts CJ) concluded that this was a “major question,” meaning there was “every reason to hesitate” before concluding that Congress meant to confer this authority on the EPA (20, see also Brown & Williamson, at 159-160). In order to draw this conclusion, Congress would need to include special authorization, or a so-called “clear statement.” In “major questions” cases, the majority tells us that “both separation of powers principles and a practical understanding of legislative intent” make it reluctant to find that the EPA’s stated authority here was buried in “vague” provisions like s.111(d) (19); here we see some concern about agency opportunism and attempts to expand statutory authority. The Court tells us that it has, as a matter of course, deployed the major questions doctrine in extraordinary cases where the agency asserts broad authority of economic and political significance (17). Put simply, as the majority frames it, the major questions doctrine is like a substantive canon of construction: the Court proceeds on its own assumption that Congress would not have wanted the EPA to have this authority, absent an explicit statement otherwise.

In dissent, Kagan J attacked the majority’s use of the major questions doctrine. Chiding the doctrine as a “get-out-of-text-free card” (28), Kagan J reasoned that the statute here was broad, but not vague (8). The breadth of the statute was by design. While this was so, Kagan J noted that the grant was also constrained: in concluding what the best system of emission reduction is, the EPA must consider “costs and non-air impacts” while making sure that the best system has been “adequately demonstrated” [7].

For Kagan J, the invocation of the major questions doctrine elided this delegation of power. She reasoned that the “doctrine,” such as it is, had only been deployed as part and parcel of ordinary statutory interpretation, determining the scope of delegated power conferred on an agency: “the text of a broad delegation, like any other statute, should be read in context, and with a modicum of common sense” [13]. Kagan J was concerned that the use of this special rule short-circuited the Court’s duty to actually determine what the statutory provisions meant, and whether the EPA’s regulation fit within the provision. Kagan J goes on to wax poetic about the importance of expertise and the administrative state (I’ve registered my opposition to these particular, age-old arguments before, and renew them to some degree below).

That said, I see a few problems with the majority’s recast of the major questions doctrine:

  • Despite the majority’s protestations otherwise, there has been a shift in the way the major questions doctrine works. Scholars, as I read them, tend to disagree about which cases mark the turning point, but I think it is fair to say that WV v EPA is the capstone. As I understood it, the doctrine was previously attached to Chevron deference. If a question was a “major question,” it was a reason to deny deference to the agency’s asserted interpretation; not a presumptive rule against ordinary agency action in certain, ill-defined “major” areas. But now the doctrine has taken on a life of its own; gone is Chevron. The lineage of this change does not suggest that it is justified.

 In Brown & Williamson, for example, the Court conducted a normal statutory analysis as prescribed under Chevron Step 1, and concluded that “Congress has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products” (Brown & Williamson, 126, 132). It was only after this exhaustive analysis that the Court additionally concluded that, given Congress’ structured and deliberate scheme for tobacco regulation, the FDA could not likely have been given the authority to regulate tobacco products (Brown & Williamson, 159-160). This was not a standalone, substantive canon of construction; it was a tool of judicial common sense, an insight drawn from the application of the tools of interpretation, to determine that a statute precluded the agency’s view. Second, in Utility Air, the majority (Scalia J) questioned whether the agency’s construction could be reasonable under Chevron Step 2, given its “claim to extravagant statutory power” (Utility Air, at 20). Here, the “major questions” concern operates as a sort of defeasible outer limit that limits the range of reasonable options at Chevron Step 2. Even in King v Burwell, the Court used the major questions exceptions as a means to an end: to conclude that it should conduct an independent assessment of the statute in that case. In all of these cases, the major questions doctrine was operating more as an “add-in,” or “tie-breaker”: see, relatedly, fn 3 of the concurring opinion of Gorsuch J.

So, quite aside from the sotto voce overturning of these, weaker versions of the major questions doctrine, the consequences of moving from a deference rule (a rule changing the intensity of review, but not changing the legislature’s delegation process) to a delegation rule (a rule denying a power to delegate straightforwardly on an ill-defined set of questions at all)  is not small, and there are two. First, because the Court only offers a set of mushy guidelines for what constitutes a “major question” on which Congress will require an explicit statement, Congress may be left wondering how and when it must make itself “clear.” Second, on principle, Congress regrettably must—according to the Court’s standards—make itself clear. This was not required under Chevron. As Kagan J notes, the major questions doctrine—as deployed by the Court in WVA v EPA—basically shortcircuited this statutory analysis. Instead, rather than determining whether the statute supported the EPA’s reading, the Court was rather results-oriented: because the issue is big, even normal statutory authorization should not count, even though the EPA’s view was plausible (and certainly not vague—as Kagan J says, the issue here is breadth). It is plausible, as the majority suggests, that Congress did authorize this power in the text of its law. But this authorization was not explored, or otherwise, was inexplicably not enough.

  • Gorsuch J, in a concurring opinion, attempted to avoid this conclusion by stating that substantive canons of construction are accepted tools of interpretation. Indeed they are. But one should evaluate the lineage and triggers for these substantive presumptions, and at any rate, all should agree they should be used with caution and rooted in consistent doctrine and principle. Otherwise, they can be manipulable “get out of text free” cards. For this reason, many of the substantive canons are rooted in clear constitutional concerns: for example, some of the presumptions concerning federalism.

What is the constitutional basis of this form of the major questions doctrine?  One candidate might be the same pool of principles that grounds the non-delegation doctrine. But I think it is hard to justify this doctrine as some extension or analogue to the non-delegation doctrine (cf Cass Sunstein) in the mould of the Benzene Case. Undoubtedly, one can conceive of some important similarities—the Court has sometimes gestured to an asserted power as being too broad to justify Chevron deference. But, again, in all the cases, the problem was simply that Congress had foreclosed such extravagant regulation. Instead, the non-delegation doctrine, as a constitutional doctrine, is primarily concerned with the scope of delegated power. Courts seek an intelligible principle to determine whether the power is adequately guided. The idea is that, absent a guiding, legislative principle, an agency is exercising legislative power unconstitutionally, in a manner contrary to Article I.

While there are powerful historical arguments against the non-delegation doctrine that I am not equipped to evaluate, I take it as a given that it is alive and well, and that it—at least in some part—aims at preserving legislative power and control over administrative decision-making. Nonetheless, the new major questions doctrine deployed by the Court in WV v EPA is not, at least primarily, concerned with the breadth of delegated power per se. As Kagan J recounts, the delegation of power to the EPA in this case is, indeed, broad, but it is not beyond the pale. The EPA does have some meaningful constraints built-in to the statute, and such constraints likely save the delegation from any challenge on non-delegation grounds. The major questions doctrine, then, isn’t so concerned with the breadth of delegated power as much as the significance of the issue at hand. But issue significance does not necessarily equal broad delegated power; in other words, we can have broad delegated power in unimportant areas, which could plausibly raise non-delegation concerns, or we can have narrow delegations in important areas, which would raise major questions concerns. These doctrines are aiming at different things. As John Manning so eloquently said: “If the point of the nondelegation doctrine is to ensure that Congress makes important statutory policy, a strategy that requires the judiciary, in effect, to rewrite the terms of a duly enacted statute cannot be said to serve the interests of that doctrine.”

In whole, the result of this doctrinal shift is a complication of the basic task of the law of judicial review, and an arguable corruption of the legislation delegating the power at issue. The law of judicial review is designed to be an adjunct branch of statutory interpretation, to determine the scope of powers granted to an administrator. Whether Chevron has one or two steps, this is the core of the thing. With this new major questions doctrine, the law of judicial review is somewhat different. Less important is the text of the laws delegating power. More important is whether the court thinks the issue over which the power is delegated is “important” or “big” enough. This abstracts away from the core question on judicial review: does the agency have this asserted power to conduct this action, no matter how big the problem  may be?

II.

With these concerns in mind, I think it might be useful to consider how Canada deals with questions of this sort, because I think the doctrine aims at some of the same concerns as the major questions doctrine while avoiding some of the potential pitfalls, as I see them.

 In Canada, our going-in presumption is reasonableness review (for an apt description of why Canada gets this backwards in relation to the United States, see Leonid Sirota). This presumption can be rebutted, in which case the court reserves to itself the right to pronounce on the legal issue without any deference. One of the circumstances in which the presumption can be rebutted is in cases involving “general questions of central importance to the legal system as a whole” (see Vavilov, at para 58 et seq). This category has much in common with the gist behind the “major questions” category, but there are important differences. First, the justification for the central questions category in Canada is not concern about delegated power; rather, it is designed to protect the role of the judiciary as the most important external check on administrative power. Issues that are considered centrally important must be answered consistently by courts, because they engage the rule of law, over which the judiciary is the primary guardian. Notably, however, in defining a central question, the courts are careful not to unduly eat away at the legislature’s right to delegate power. As the Supreme Court says, “the mere fact that a dispute is ‘of wider public concern’ is not sufficient for a question to fall into this category—nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue” (Vavilov, at para 61).

And so the questions recognized by the court concern the stability of the legal system, issues that transcend an administrator’s particular statutory grant of authority. These issues have typically concerned constitutional or quasi-constitutional issues. For example, in University of Calgary, the question was whether a decision of an administrator that a statute permits solicitor-client privilege to be set aside. The Court refused to defer in this case, because solicitor client privilege has a constitutional dimension, and the “question of what statutory language is sufficient to authorize administrative tribunals to infringe solicitor-client privilege is a question that has potentially wide implications on other statutes” (University of Calgary, at para 20).

Why is this doctrine preferable, at least on these points, to the major questions doctrine, as deployed in WV v EPA? For one, the Canadian version expressly forecloses the possibility that an issue’s importance factors into the analysis. Many issues can be characterized as important; this is the challenge of the law of judicial review, to channel and sometimes restrict administrative power over these important areas of public life. Second, the benefit of a rule restricting deference is that it can be justified with reference to fundamental tenets of the law of judicial review. There are good rule of law reasons, pertaining to the judicial duty to pronounce the law, to carve away deference in cases where an agency attempts to exert power in a way that may transcend its own statute, or engage quasi-constitutional norms. Legislatures should not be impliedly granted the power to, by delegation, carve away the core powers of judicial review. And so,  uniformity of the administrative justice system requires not percolation, but correct answers. This approach also answers for the problem of agency opportunism: an agency that seeks to manipulate its own powers in order to affect these broader areas of legal importance should be met with a resolute judiciary. Nonetheless, the category is pared down not to every conceivable important issue, but to core concerns of the judiciary that implicate the rule of law. With these more narrow justifications, I would venture that the Canadian law of judicial review—only on this score—may be more stable than the American.

III.

In the meantime, I do not expect nor suggest that American courts should look to Canada for guidance. Even still, I do not think that the US situation is as dire as the dissent and some commentators suggest. As Kristin Hickman notes, Congress can rectify the ruling in WV v EPA tomorrow (even if it should not have to): it can simply legislate a clear statement. To be clear, this is an additional, probably unjustified hurdle. But the ball is in Congress’ court.  And, as I have argued before, non-delegation limits on administration will not hobble administration, and may actually incentivize better deliberation and guidance.  Further, administrative government is vast, and few regulations are challenged such that this case will make a difference on a wider scale. These are the practical realities that limit this new major questions doctrine, but I admit there may be more I am simply missing or misunderstanding

Nonetheless, as far as it goes, the new major questions doctrine that matured in WV v EPA is unwelcome from my perspective. Unlike the non-delegation doctrine, it cannot easily be traced to the same constitutional concerns, and it is isn’t immediately clear to me that “clear statements” will really provoke much deliberation. The doctrine appears to be a wholly judicial creation; it complicates the law of judicial review, puts a hurdle up for Congress, and finds no real animating purpose, beyond nods to concerns already covered by the existing non-delegation doctrine. I stress, as I did above, that I too worry about “bureaucratic domination,” drift, etc. But these are concerns that are best kept in check by a legislature and by consistent and principled application of the law of judicial review. Creating an amorphous thumb on the scale, in this manner, is an ill-fit.

Immigration and Refugee Decision-Making: The Vavilov Effect?

It has been a while since I’ve blogged. The last few months have been—in a word—chaotic. I’m hoping to blog more regularly going forward now that some of these things have settled

One of the areas where administrative law really comes to life is in immigration decision-making, particularly front-line decision-making like visa decisions or humanitarian and compassionate decisions [H&C]. This is where the pressures, incentives, and moral worldview of “street-level bureaucrats” in particular contexts can tell us about how decisions affecting all-too-real rights and interests are made. The area, though, presents all sorts of challenges for those studying the law of judicial review.

First, immigration visa decision-making is also just one particular iteration of a broader reality: the inexplicable diversity of administrative decision-making. That diversity leaves monist accounts of the administrative state wanting. Expertise—advanced by the Progressive school as a core reason for delegation and deference—presents a different empirical reality in these contexts. In other words, this is not the labour board or the human rights tribunal where we might have more confidence in the “expert” nature of the decision-maker. In this context, not only is “expertise” not to be assumed, but what it means on the frontlines escapes easy definition.

Second, emerging democratic theories view the administrative state either as a place to facilitate and channel democratic deliberation or a place to encourage contestation (agonism). These theories are deeply insightful and may have resonance in other areas. But in some of these immigration and refugee cases, it is hard to say that there is anything substantively democratic happening. The only democratic argument is entirely formal: the delegation of power to officials to make decisions. This delegation of power must be respected, but the chances for contestation or facilitation seem far off.

Other features of front-line immigration visa decision-making present problems from the perspective of the law of judicial review. Notwithstanding what I say below, it was typically the case that visa decisions did not—and still, do not—require extensive reasons: Persaud v Canada (Citizenship and Immigration), 2021 FC 1252 at para 8. And in theory, this remains true post-Vavilov. What’s more, there was, and remains, a presumption that decision-makers considered all the evidence before her: Cepeda-Gutierrez v Canada, 1998 CanLII 8667. 

The combination of these rules, to my mind, creates an important tradeoff. On one hand, given the backlogs in this area of administrative decision-making, we may think that officers should not spend time writing extensive reasons. On the other hand, a paucity of reasons or an adequate record that “immunizes” decisions from effective review presents problems from the perspective of legality, but more directly, to the individuals who wish to seek judicial relief: see Canada (Citizenship and Immigration), v Canadian Council for Refugees, 2021 FCA 72 at para 102.

There should be some balance struck here. Post-Vavilov, courts in some cases are beginning to strike this balance. They have done so in favour of more substantive reasoning that addresses the legal and factual stakes to the party affected by a decision. In other words, in these cases, the courts are not abiding boilerplate and rote recitation of the facts. Nonetheless, they are not expecting long, involved reasons in every case, and they need not be perfect: the reasons can be short, but should be directed to the actual stakes facing the individual. In my view, this decisively moves the balance towards the ideal of legality, understood in this case as enhancing the role of the courts to ensure compliance with administrative law.

Here are some examples of what I am describing:

  1.  Singh v Canada (Citizenship and Immigration), 2022 FC 692

Here, Justice Diner describes well the post-Vavilov position on reasons:

[22] Visa officers are certainly entitled to deference, but only where their findings have at least a modicum of justification. That was entirely absent here. In the age of Vavilov, the Court cannot defer to reasoning missing from the Decision, or fill in that reasoning for administrative decision-maker. Lacking justification, the matter will be returned for redetermination

2. Rijhwani v Canada (Citizenship and Immigration), 2022 FC 549

This was a denial of a permanent residence application where the applicant plead H&C grounds. The applicant specifically pointed to establishment and hardship as supporting her application. The Officer did not address these factors in detail. The Court says, at para 17: “It is particularly important that when there are few factors raised—in this case only hardship and establishment—that the Officer addresses the rationale clearly for each.”

This did not occur here. Noting, at para 10,  that “brevity cannot excuse inadequacy” the Court takes issue with the “two significant errors…in under a page of reasons” that characterized this decision.

3. Gill v Canada (Citizenship and Immigration), 2021 FC 1441

Gill was found inadmissible to Canada for five years by a visa officer because of misrepresentation; he failed to disclose an unsuccessful tourist visa application to the United States. Gill advanced the argument that his “misrepresentation” was actually an innocent mistake. He argued that the officer did not reasonably explain why he rejected the “innocent mistake” argument.

Specifically, the officer in this case apparently took—word-for-word—reasons that were given by a separate officer in another case that was reviewed in the Federal Court. Speaking of the Cepeda-Gutierrez presumption, the Court said, at para 34:

I note, however, that the use of identical template language to express not just the relevant legal test or framework, but the reasoning applicable to an applicant’s particular case undermines to at least some degree the presumption that the officer has considered and decided each individual case on its merits.

The Court did note, however, that templates can be useful tools in high volume-decision-making [33].

I do not present these cases to make an empirical claim about what any number of courts are doing post-Vavilov. This is impossible to do without closer study. But I can say that there are many more of these cases, and I recommend you consult my weekly newsletter if you are interested in reading more. In the meantime, I think we can draw some conclusions from these cases:

  1. There is something to be said for a signal sent by a judicial review court to administrators about what they should expect. Prior to Vavilov, decision-makers may have expected strong presumptions of deference and courts claiming that inadequate reasons did not provide a standalone basis for review. Now, decision-makers may expect a closer look if their decisions are reviewed, particularly in this front-line context. One hopes that this incentivizes structural solutions within administrative bodies. This should not be hard to expect from Immigration, Refugees, and Citizenship Canada, which houses Canada’s largest administrative decision-maker.
  2. No one should take this to mean that reasons need to be extensive in every case. But it should be taken to mean that boilerplate is presumptively problematic. This is because boilerplate, by its nature, does not respond to the individual stakes raised by many of the decisions in the immigration realm. This is, in part, the thinking behind the Vavilovian constraints. If the constraints bind differently in different cases—if Vavilov is truly contextual—then boilerplate is a non-starter because it will generally fail to account for the context of various decisions.
  3. Nor is this emerging line of cases overly onerous for administrative decision-makers or front-line officers. Again, the reasons need not be perfect, need not look like a judicial decision, and need not be extensive. But they must address the actual legal and factual issues at play. If a decision-maker cannot do this, then one should wonder why they were delegated power in the first place.

At any rate, this is an area that I hope receives more attention going forward.

Same Pig, Different Lipstick: Bill C-11

Last year, I wrote about Bill C-10, which was concerned with “compelling companies like Netflix Inc and TikTok Inc to finance and promote Canadian content.” The Bill was controversial, not least because the law could be read to target content produced on user-driven sites (TikTok, say) targeting individual content creators rather than the tech giants and subjecting them to discoverability requirements and penalties. One of the biggest concerns was free expression. This law could be read to grant Canada’s telecom and broadcast regulator (the CRTC) power to regulate the content of individual expressions, something that—to many of us—presented constitutional and regulatory concerns. As Professor Michael Geist of the University of Ottawa stated upon the tabling of the bill, it “hands massive new powers to Canada’s telecom and broadcast regulator (the CRTC) to regulate online streaming services, opening the door to mandated Cancon payments, discoverability requirements, and confidential information disclosures, all backed by new fining powers.” 

Bill C-10 died because of the election, and some of us thought that would be the end of this. Not so. Yesterday the Trudeau Government re-introduced the same pig with different lipstick: Bill C-11. Professor Geist has led the charge on this and I would direct you to his site for deep analysis of the Bill, but for now, it’s enough to say that this Bill is generally not an improvement on its predecessor, at least from the perspective of the power it vests in the CRTC. Its central problem is hinging the entire controversy of the Bill on a clause which allows the CRTC to decide when and to whom the Act applies, subject to some exceptions. This should be, if not constitutionally problematic, politically so: this is the power to expand the scope of the law to a large class of individual users, allowing the Government to evade responsibility for this controversial choice in Parliament. In other words, the Government still has power to regulate user generated content and subject that content to discoverability regulations and users to potential penalties. It has this power despite the Bill representing that it does not.

Let’s take a look at the Backgrounder for the Bill. The Government says that this Bill solves two problems with Bill C-10. First, “it captures commercial programs regardless of how they are distributed, including on social media services.” Second, “the proposed bill is also clear that the regulator does not have the power to regulate Canadians’ everyday use of social media, including when they post amateur content to these services.” It seems, then, that the proposed bill does not apply to Canadian users or individual creators. And the opening part of the actual text of the Bill sounds promising. It says that it must be construed and applied in a manner that is consistent with “(a) the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.” Section 4.1 (1) of the Bill sounds even better: “This Act does not apply in respect of a program that is uploaded to an online undertaking that provides a social media service by a user of the service for transmission over the Internet and reception by other users of the service.” This seems to deal with the problem so many of us had with Bill C-10 when it purported to extend its scope to the average TikTok user.

This sounds like a real improvement. But the promise fades when we consider the CRTC’s new regulation-making power. A regulation is a form of law—the power to make regulations is given to an agency by the elected legislature. This isn’t itself inherently problematic, and of course regulation-making is widespread today. But this goes further. Section 4.1(2) of the Bill basically “takes back” s.4.1(1), when it gives the CRTC power to make regulations governing “programs” despite the seeming exclusion of user content. This is something approaching–if it isn’t already–a Henry VIII clause, which allows an agency to amend a primary law (h/t Leonid Sirota for raising this point). If not constitutionally problematic, it is politically so. It allows the Government to evade responsibility for the potentially vast scope of this law.

This is the controversial clause. It is cabined by a few factors, namely s.4.2 (2) (a) which directs the CRTC to consider “the extent to which a program, uploaded to an online undertaking that provides a social media service, directly or indirectly generates revenues” as it makes regulations. As Professor Geist notes, the target here appears to be YouTube music. But there are many other types of user-generated content that could conceivably fall under the scope of the law, including user generated TikTok videos or podcasts that indirectly generate revenue and have other features that fall within the scope of the regulation-making power.

The end result, as Professor Geist says, is that this technical change “would likely capture millions of TikTok and YouTube videos.” In his post on the Bill, he summarizes the wide berth of power granted to the CRTC in Bill C-11:

Views on the scope of this regulatory approach may vary, but it is undeniable that: (1) regulating content uploaded to social media services through the discoverability requirement is still very much alive for some user generated content; (2) the regulations extend far beyond just music on Youtube; (3) some of the safeguards in Bill C-10 have been removed; and (4) the CRTC is left more powerful than ever with respect to Internet regulation.

Taking into account alternative views on the scope of the Bill, I agree. The Bill basically downloads the real decision-making a level down. Rather than the Government taking responsibility for regulation user content in this fashion, it will grant it to the “independent” CRTC. If there is controversy about a future regulation, the Government can shift responsibility to the CRTC. The regulation-making just reinforces this, granting a power to the CRTC to expand the scope of the law and to make the decisions Parliament should be making in plain view.

Others will differ. They could say that I am discounting the CRTC’s own democratic process. Or, one might say that the statute cabins the regulation-making power, and that the income-generation factor is one, non-exhaustive factor. Maybe they’d be right. But I think I could grant all of this and still maintain that the Bill purports to grant significant power to the CRTC to apply the law to users, something the Backgrounder suggests it does not. This disparity concerns me.

It is important here to address another possible response. Much is made in administrative law about the need to empower regulatory experts to make decisions in the public interest. So far as this goes, the device of delegation could be useful. But it is not always and everywhere so, and there are differences in kind. A delegation to the CRTC here may be justifiable, but the Government should take responsibility for the choice to regulate user content. Presumably, this should be something that—if it needs to be addressed—should be addressed in the primary law, rather than by the CRTC in its own wide, relatively unconstrained discretion. In other words, if Youtube music is the problem, the law should be appropriately tailored.  And the use of something like a Henry VIII clause is ill-advised, to say the least.

The basic problem here might be more fundamental. I am candidly not sure what the need for this Bill is, particularly the targeting of user content. It seems the regulatory goal here may be to subject the Act’s requirements to users who generate a certain income, for example, and among other things. If that is the regulatory goal, why is the CRTC regulatory mechanism desirable here? If the Government wants to make this policy choice, why can’t it do so in the plain view?  Perhaps I simply do not understand the CanCon-motivated reason why this particular power is justified.  I’m open to someone explaining to me what I might be misunderstanding here—perhaps something specific to this regulatory context.

Nonetheless, I think there are real democratic tradeoffs to the use of this sort of regulation-making power, and more specifically the deflection of responsibility to the CRTC. This is a controversial application of a regulatory law—with penalties—to a potential huge class of users. Not only does the Government purport not to do this, but it does it here with a delegation to the CRTC. If later challenged, the Government can simply defer to the CRTC.  I do not see this legal device—and this Bill—as any better than Bill C-10.

A Cheer for Administrative Law

Administrative law can only do so much to avert injustice―but what it can do still matters

I’d like to come back, however belatedly (sorry!) to an interesting post by Paul Daly at Administrative Law Matters. Professor Daly uses the example of Novak Djokovic’s ultimately unsuccessful challenge to the Australian government’s cancellation of his visa to illustrate “the value of administrative law”. He writes:

Immigration has traditionally been a prerogative of the executive, an island of unregulated discretion in the legal system. But over the last half century or so, courts around the common law world have landed on this island, wielding principles of procedural fairness and substantive reasonableness. Several generations ago, it would have been unthinkable that a Minister would give any reasons — still less 10 pages of reasons! — to support a decision to cancel a visa. Yet because the courts now stand ready to scrutinize executive action, ministers can no longer rely on authority alone to make decisions. They must engage in the reasoned exercise of public power.

Professor Daly acknowledges that “[a]dministrative law is no panacea. Hardly any immigrant has Djokovic’s resources and will receive the Cadillac justice he has been receiving.” That’s true of course. Still, he concludes that Mr Djokovic’s case “is an important reminder of the value of administrative law in pushing ministers and others to justify their exercises of public power in reasoned terms”. This also is true. And one might even add that, in law as elsewhere, those who cannot afford the Cadillac will often benefit from the ability and willingness of others to shell out for one.

Yet despite this I think that Mr Djokovic’s case shows at least as much that administrative law is, at best, only a partial remedy to injustice. Granting the point that it can force officials to “engage in the reasoned exercise of public power” (which is often though not always true), it does comparatively little to ensure that the power is exercised justly, and nothing at all to ensure that its existence is just. The latter of course is not administrative law’s role. But it’s a point that we should not lose sight of if we choose to celebrate administrative law. In a just world, there would be a great deal less administrative law than we need in ours.

In our world, it is indeed an achievement that immigration decisions have to be reasoned and justified. After all, the founding father of Canadian administrative law scholarship evidently lamented the fact that, although the government “regards immigration as a privilege, not as a right, and wants to avoid having to disclose to a court its sources of information about the political colour of immigrants”, courts lack the good sense to see the point: “On the other side of the ideological fence, a court , with the sweating immigrant before it, sometimes sets aside a deportation order on very flimsy grounds, for instance, that it was made on a Sunday”. (John Willis, “Administrative Law in Canada” (1961) 39:2 Can B Rev 251 at 258) It’s good that we’ve moved that ideological fence some way towards decency.

But let’s not kid ourselves. We haven’t moved it very far. As Maria O’Sullivan explains in The Conversation, the reasons that ostensibly motivated the cancellation of Mr Djokovic’s visa were that his ― presumed ― opposition to vaccination against the present plague might encourage similar opposition among Australians and might undermine “social order”. Professor O’Sullivan points out that ministerial explanations were questionable on their own terms. But she also notes that, perhaps more importantly for the future, the precedent set in Mr Djokovic’s case means that people’s ability to come to Australia might be taken away on account of their actual or even perceived views being a hypothetical source of possible trouble in the opinion of a minister. What starts with an arrogant fool of a tennis player won’t stop there. Yet substantive Australian immigration law seems to allow for precisely this result, and administrative law offers no redress.

Redress will come, not any further development of administrative law, but from substantive law being such to prevent this sort of injustice. In this regard, it is telling that Professor Daly sets his reference point to 50 or 60 years ago, when immigration restrictions ― and the government’s willingness to treat immigration as a privilege to be granted or withheld on a political whim ― had become generally accepted. But let’s not stop 50 years ago; let’s go back another century. In 1872, English-speaking countries simply did not restrict immigration, though health measures and quarantines did exist. (Hence let me note: I’d have very little sympathy for Mr Djokovic if he had been barred from Australia due to not being vaccinated. But that’s very much not what has happened.) In North America, immigration controls were the product, first, of anti-Asian racism in the late 19th century, and then of more generalized xenophobia in the first decades of the 20th. On the other side of the pond, as David Cannadine writes in The Victorious Century, the closing of the UK’s borders at the turn of the 20th century was the result of bigotry against the Irish and, especially, of anti-Semitism. Australia too implemented and long held to an overtly racist immigration policy.

Of course, contemporary immigration law does not discriminate as overtly. But the idea that movement across borders is something that can be regulated in the first place comes from that evil and unjust source. And it still means that people can be stopped from doing the same (often stupid) things that we are allowed, even though they are in all particulars bar their failure to have been born in the right place or to the right parents the same as us, for no reason other than that failure. The old-school racism may be gone, but the xenophobia inherent in the idea of immigration restrictions remains. And it is not administrative law that will purge it, but the realisation that the closing of the borders 120, 140 years ago was an injustice, and that it must be ended.

Hence I will only give one cheer for administrative law. Not two, for administrative law is not meant to reform repressive substantive laws, and certainly not three, for it is powerless to mend injustice raised up to the rank of political philosophy. The trouble with cheering too loudly for administrative law is that this risks making us forget these deeper injustices; we might be content with bringing order and reason to what remains, at bottom, a logic of repression.

But my cheer for administrative law ― at least, for robust administrative law, which truly holds the administrative state to its legal and constitutional duties, rather than for the all-too-often diluted version that many administrative lawyers prefer ― will be a loud one. As E.P. Thompson famously said,

We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretentions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power.

Administrative law is an essential component of the Rule of Law, and so of the unqualified human good that Thompson had the wisdom to discern amid what he saw amid great substantive injustice. Hooray for it.

Boilerplate in Decision-Making

Administrative boilerplate is probably legion in government, but of course, this is an empirical question. Nonetheless, I have read enough cases to know that individuals at the foot of administrative power—many times in front-line decision-making— are at least sometimes faced with deciphering reasons that purport to have “considered all the factors.”  Confronted, as well, with a strong presumption that decision-makers considered all of the evidence in the first place (Cepeda-Gutierrez), it is theoretically hard for applicants to move beyond boilerplate.

Besides internal administrative mechanisms that could—but may not—discourage this sort of behaviour, judicial review doctrine in Canada is starting to take notice of it. Here are a few recent cases:

Gill v Canada (Citizenship and Immigration), 2021 FC 1441

In this case, a visa officer in New Delhi used almost identical language to reject Gill’s application as another visa officer used in another denial out of New Delhi. The Court said [34]: “I note, however, that the use of identical template language to express not just the relevant legal test or framework, but the reasoning applicable to an applicant’s particular case undermines to at least some degree the presumption that the officer has considered and decided each individual case on its merits.”

Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157

In this case, the Federal Court of Appeal chastised the Patented Medicine Prices Review Board for, among other things, “conclusory” analysis that purported to consider all the evidence [43]. This was important for the Court: “At best, on this point the Board obfuscated, making it impossible for a reviewing court to know whether the Board has helped itself to a power it does not lawfully have. By obfuscating, the Board has effectively put itself beyond review on this point, asking the Court to sign a blank cheque in its favour. But this Court does not sign blank cheques. Administrators cannot put themselves in a position where they are not accountable.”

Publicover v Canada (Attorney General), 2021 FC 1460

In this case, the Minister of Fisheries and Oceans denied a request for a  lobster licence transfer. In her reasons, the Minister stated that she had considered “all the relevant circumstances” [16]. The Court was troubled by this boilerplate, because it did not show that the Minister connected her analysis to the actual law and policy governing the decision [62, 66].

These cases represent a decisive shift from pre-Vavilov caselaw. Gone is Newfoundland Nurses, which permitted courts to take these boilerplate statements and “supplement” them: Nfld Nurses, at para 12. Underlying this doctrinal innovation was an unqualified presumption about administrative decision-making: “To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist” [13].

In the context of boilerplate, Nfld Nurses makes little sense. This is because boilerplate reasons do not do anything to show expertise or the use of specialized concepts or language. It is merely a “say-so” of the decision-maker. Even on the Dunsmuir standard, it was always hard to say–with a straight face– that this sort of reasoning is “justified, transparent, and intelligible.”

Second, Vavilov’s renewed focus on justification and a “reasons-first” approach will be, I think, a boon for those challenging front-line decision-making. There are necessary caveats: reasons are not always required, and in many administrative contexts (such as high-volume study permit decision-making), “extensive reasons are not required” (see Niyongabo v Canada (Citizenship and Immigration), 2021 FC 1238 at para 12). But even in these areas, courts could be more willing to subject front-line decision-making to a slightly higher bar in terms of reasoning.

Third, I think this turn of events marks a tension between the Cepeda-Gutierrez presumption of consideration and the culture of justification endorsed in Vavilov. This tension was pointed out, as I noted above, in Gill. The presumption of consideration makes sense from an efficiency standpoint: after all, legislatures delegate to decision-makers for a reason, and when they do, courts should generally not go on a line-by-line treasure hunt for error. But at the same time, these efficiency concerns should take a decidedly second place: as noted in Alexion, judicial review becomes difficult when there is only boilerplate shedding light on an ultimate decision; this is to say nothing, of course, of the dignitarian reasons why reasoned decision-making is desirable (see, for a recent analysis of these issues, Janina Boughey).

This is all for the best. Boilerplate may work well in a “top-down” culture of decision-making in which those subject to administrative power and courts are in the thrall of purported administrative expertise. No need, on this account, for a decision-maker to show their work; the “just trust us” ethic is what governs. But Vavilov has arguably changed things: gone is the presumption of expertise, and gone should also be the presumptions about reasoning. If expertise exists, it can and should be demonstrated through persuasive and responsive reasons that allow a court to determine the legal basis of a decision.

Fizzy Drink or Fuzzy Thinking?

Questionable arguments in Cass Sunstein and Adrian Vermeule’s critique of anti-administrativism

I have finally started reading Cass Sunstein and Adrian Vermeule’s Law and Leviathan: Redeeming the Administrative State. As it says on the tin, the (very short) book is a defence of the administrative state, and of American administrative law, against criticism by those who ― like me ― would to tear it all, or at least much of it, down. Ostensibly, the book is offered as something of an olive branch, an argument for why those who suspect that the administrative state is inimical to the Rule of Law are mistaken about this, and can, if not embrace powerful government agencies vested with vast discretionary powers, then at least make peace with their existence.

But it gets off to a questionable start in the first chapter, which describes ― and pokes fun at ― anti-administrativist thinking, which Professors Sunstein and Vermeule brand “the New Coke”, ostensibly in reference to Chief Justice Sir Edward Coke, whom anti-administrativists like Philip Hamburger regard as a hero of opposition to executive-branch tyranny but presumably also to one of the biggest flops in the history of marketing. I don’t mind the jab ― it is amusing, although of course the Chief Justice’s name doesn’t sound like that Coke. I do mind that the argument is less forthright than it ought to be.

Professors Sunstein and Vermeule make two main points in their first chapter. One, which is less interesting both to them and surely to most of their non-American readers, is that there is no particularly strong reason to think that the US Constitution’s original meaning outlaws the modern administrative state. The other, in which they are more invested and which will resonate abroad (indeed they assert, in the introduction, that their argument is “promising … for nations all over the world” (18)), is that the administrative state is essential for government to do its rightful work, and that its critics are mistaken to only focus on its alleged dangers for democracy and liberty. This is what interests me here.

One argument I find objectionable has to with the relationship between the administrative state, liberty, and markets, and the relationship of the law, especially the common law, with all three. While anti-administrativists see the administrative state as a threat to be neutralized,

[f]or the theorists and architects of the modern administrative state, private power, exercised through delegation of legal powers and entitlements by the common law and by market ordering, was itself a threat to individual liberty. Hence vigorous government, checking the abuse of corporate and other private power, was deemed just as indispensable to liberty as were constraints on executive abuse. Consider, for example, the question whether the Social Security Administration, the National Labour Relations Board, the Securities and Exchange Commission, and the Federal Trade Commission are threats to freedom or indispensable to it ― questions on which reasonable people differ. (30)

There are several problems with this. First, the claim that private liberty is just something “delegated by the common law” is, at best, taking sides in a contentious debate. The common law itself did not see things that way. A person is free to do that which the law does not prohibit; he or she does not require the law’s permission.

Second, I think it’s quite fair to say that “vigorous government checking the abuse of … private power” is important. Recall Dicey’s example of Voltaire being “lured off from the table of a Duke, and was thrashed by lackeys in the presence of their noble master” and “unable to obtain either legal or honourable redress”. But to say so is not to answer the questions of what forms of “private power” can legitimately be checked by the state, and how they should be checked. Professors Sunstein and Vermeule want us to assume that refusal to deal is the same thing as a private violence in this regard, and that an administrative agency making law and adjudicating claims that the law it made has been infringed is no different from the police and independent courts enforcing the criminal law. These things don’t follow.

And third, the question Professors Sunstein and Vermeule pose is misleading. Reasonable people really should not differ on whether administrative agencies that can create rules backed by the threat of penal sanctions are a threat to liberty. Of course they are! What reasonable people can differ about is whether, all things considered, the threat is offset by, on the one hand, the good these agencies might do and, on the other, the mechanisms that might be devised for controlling and minimizing it. I think that it’s fair for them to argue that the administrative state does good things and that its critics have an unwisely single-minded worldview (whether or not these arguments ultimately succeed is, of course, a different question). But to deny that the administrative state threatens liberty is to peddle a similarly one-sided set of beliefs.

Professors Sunstein and Vermeule go on to give an example of how private law and private power threaten liberty, so that the administrative state is no more coercive than private ordering which it displaces:

If some people have a lot and other people have only a little, it is … not because of purely voluntary achievements and failures, important as those are. It is also because of what the law chose to recognize, protect, or reward. A homeless person, for example, is deprived of access to shelter by virtue of the law of property, which is emphatically coercive. In these circumstances, the creation of modern agencies … did not impose law or coercion where unregulated freedom previously flourished. They substituted one regulatory system for another. (31)

This, again, is quite misleading, and indeed the example comes close to doing the opposite of what Professors Sunstein and Vermeule intend ― it shows the dangers of the administrative state rather than its benefits. A homeless person is not deprived of shelter by “the law of property”, but by refusals to deal on the part of prospective landlords ― and possibly, at one remove, by prospective employers.

I’ll explain why the difference matters presently, but first, it’s important to see that the “law of property” would just as happily assure a person of a home as deny them one. Indeed, when we consider how attempts to interfere with the law of property have fared, we can see that, if anything, it would much rather provide shelter to everyone, as it were. Attempts to abolish private property in land and housing in the Soviet Union did not eliminate homelessness ― but they did result in a dire shortage of housing, such that multiple families were forced to share “communal apartments” with a handful of others if they were lucky, and with dozens if they were not. (My mother was born in such an “apartment” which her parents shared with seven other families.) Less dramatically and closer to us, administrative interference with property rights by means of zoning and building codes raises the cost of housing and prevents enough of it from being built ― which, of course, helps make people homeless in the first place.

In a competitive marketplace, refusal to deal by a prospective landlord or employer will seldom condemn a person to homelessness. Because landlords and employers compete for tenants and employees as much as the latter compete for apartments and jobs, some will moderate their demands to the point when even people who are not well off and/or have limited skills will find something for them. To be sure, some people will still need help ― temporarily in some cases, permanently in others. But this help can take the form of cash transfers, rather than regulation. But once regulation, often enacted by the administrative state, starts restricting the supply of housing or raising the cost of workers beyond what they can produce, refusals to deal by the artificially depressed number of landlords and employers risk becoming much more dramatic. In short, Professors Sunstein and Vermeule, like many well-intentioned pro-administrativists before them, are presenting as solutions mechanisms that often serve to aggravate problems they purport to solve.

This brings me to the last issue I would like to address. Professors Sunstein and Vermeule quote at length a wonderful passage from “The Federalist No. 41“, by James Madison ― a hero for many originalists and supporters of limited government whom they are eager to enlist as an ally to their cause:

It cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. … [C]ool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment.

Professors Sunstein and Vermeule rely on Madison in support of their rejection of “a fallacious mode of reasoning that afflicts the New Coke critics of executive power” ― namely,

selective attention … to the risks of … government action, as opposed to inaction; to the risks arising from the functions of government, as opposed to dysfunctional governments … ; to the risks generated by new powers, as opposed to t he risks arising from old powers that the new powers could be used to counter. (34-35)

This is not altogether unfair: it would indeed be a mistake to only assess government institutions by the potential for abuse of their powers, without asking what good they might be able to do.

But Madison does not stop at this. His affirmative prescription is just as important as his critical point. He says that we must always ask whether a proposed government power “is necessary to the public good”. Put to one side the question of whether the public good is a useful or meaningful metric. (I have just argued that it is not.) It’s Madison’s necessity standard that I want to emphasize. Necessity is a high bar; it is not enough that a proposed power might be advantageous ― it has to be necessary. This is not obviously a prescription for expansive government, let alone for an expansive administrative state. And then, even with necessary powers, Madison says that we must “guard as effectually as possible against a perversion of the power to the public detriment”. This dovetails nicely with his concern for dispersing and checking powers explored in later (and better-known) papers.

The anti-administrative case isn’t that the administrative state can do no good. Of course it can, sometimes. It is, first, that the administrative state is often actively harmful ― on balance, even accounting for the good it can do ― such that it cannot be regarded as necessary; and, second, that the structure of administrative institutions is such that they fail to provide effectual guardrails against the perversion of their powers. The rest of Law and Leviathan is meant as a response to this last contention and, if its arguent succeeds, it will address part of the anti-administrativists’ concerns. But it will be less important part, as the order of Madison’s requirements makes clear. Devising protections against the abuse of power can only come after we have established that the power is necessary. And anti-administrativists’ concerns on this first front cannot be assuaged by simply pointing to the good that the administrative state might do ― least of all when, as in the example offered by Professors Sunstein and Vermeule ― the good is an illusion that rests on faulty or misleading claims about the nature and effect of coercion in the administrative state and in the market.