Ignoring Legislative Intent: Deference in Quebec and s.96

The constitutionality of a regime of deference is not something much explored in the wider context of Canadian administrative law. But in Quebec, the question is a live one because of particular statutory and judicial arrangements. The Quebec Court of Appeal just released a case [the Reference] that dealt with the question head on: does a statutory court’s statutory review of administrative decision-makers become unconstitutional if that court is required to apply principles of deference?

In this post, I first review the set-up of the Court of Quebec and its relationship with various statutes that nourish it with appellate review power. Then I address the controversy surrounding the way the Court is arranged. I argue that deference in these circumstances is, indeed, unconstitutional based on first principles. It deprives the Superior Court of Quebec of a core element of its jurisdiction—its ability to review, without impediment, inferior tribunals. But I argue that there is a way around the constitutional problem. Courts should begin to recognize, and give full effect, to statutory rights of appeal as elements of legislative intent. Doing so largely eliminates deference questions and is more aligned with the task of judicial review: to discover what the legislature means when it delegates power.

The Court of Quebec, Established Law, and the Quebec Court of Appeal’s Conclusion

The Court of Quebec is a statutory court. It has been given, through a number of statutes, appellate review jurisdiction over a number of administrative tribunals in the province of Quebec. This is a key point that I will return to later: appellate, statutory review jurisdiction should be fundamentally different from an application for judicial review.

In the reference before the Court of Appeal, the chief justices of the Superior Court challenged eight separate legislative schemes that provide for appeals to the Court of Quebec. Their challenge was based on s.96 of the Constitution Act 1867, which, among other things, guarantees a core jurisdiction for the superior courts of the provinces. The challenge concerned not the establishment of a statutory court/tribunal per se (which has typified the jurisprudence around s.96), but the requirement imposed doctrinally that the Court of Quebec must apply principles of judicial deference when they review the decisions—via statutory appeal—of administrative decision-makers.

Administrative law buffs might immediately recoil at the argument, because the Supreme Court has long made clear that judicial review principles apply regardless of whether a case comes to the court via an application for judicial review or statutory rights of appeal (see Dr. Q, at para 20; Saguenay, at para 38). The Court has even held, with respect to the Court of Quebec, that it is required to apply principles of judicial deference (Proprio Direct, at paras 19-21). But recall that this argument is constitutional in nature—that the status of the Court of Quebec, coupled with the requirement of deference, runs afoul of the protections afforded in s.96 of the Constitution Act, 1867 for superior courts. This is a unique argument because it is both the jurisprudential requirement of deference and the Court of Quebec’s statutory status which, together, create an alleged unconstitutional effect.

The Quebec Court of Appeal, though, rejected this argument in whole. It held (1) that the Court of Quebec must apply common law principles, with Dunsmuir standards of review as the governing tests (see para 280); and (2) although there was a transfer of authority to the Court of Quebec that, at first glance, usurps the Superior Court’s s.96 role, this was insufficient to cause a s.96 problem, because “…all of these legislative schemes maintain the Superior Court’s superintending and reforming power” (324). In other words, there was no privative clause ousting the Superior Court’s power on “jurisdiction,” even if the Court of Quebec was to apply deferential principles of review. Since what was envisioned was not an exclusive transfer of jurisdiction (as exemplified in the s.96 cases, see MacMillan Bloedel), there was no constitutional problem.

Avoiding the Constitutional Problem: Statutory Rights of Appeal

In my view, and putting aside for the moment the constitutional concerns, whether the Quebec Court of Appeal got this right is dependent on how one characterizes a statutory right of appeal. If a statutory right of appeal is characterized as a legislative signal for a reviewing court—even a statutory court like the Court of Quebec— to simply apply the ordinary principles applicable on appeal, what basis is there for a court to apply the principles of deference? It is only by accepting that the common law principles of judicial review override clear statutory signals that we get into this problem of constitutionality, at least in the context of this case.

As noted above, though, the Court has been content to permit uniformity in the way courts review administrative decision-makers, through the application of the typical common law tests. In a variety of contexts, the Court has either treated statutory rights of appeal as non-determinative (see Pezim, at 591 and Southam, at para 54) or has specifically said that the common law principles of judicial deference apply, even in the face of a clear legislative regime governing a statutory court (Khosa, at para 25).

While the Quebec Court of Appeal rightly followed this jurisprudence, it seems to me completely wrong in principle. Under no circumstances should common law principles of judicial review apply if the legislature has specified, in the relevant statutes, a right of appeal to a statutory “court of justice” (see para 363). This is because a statutory right of appeal is an implicit legislative signal that, on questions of law, the statutory court should simply intervene in a lower administrative decision as it sees fit. Statutory rights of appeal stand for this proposition unless they contain some wording that would imply deference, or unless there are other signals in the statute, like a privative clause.  Forcing these courts to apply common law principles of judicial review ignores this implicit legislative signal.

What’s more, the theoretical underpinnings of the Supreme Court’s maintenance of the common law rule are wanting. The basic point is that the very act of delegation to (apparently) “specialized” and “expert” administrative tribunals justifies deference. But there are two problems with this justification. On one hand, it is completely unjustified to impute a legislative intent of deference to the legislature when it merely delegates power. The reasons why a legislature delegates power are many, but there is no evidence to assume that it does so because it wants the decision-maker to receive deference. Why should courts assume so? Secondly, the across-the-board expertise presumption is not necessarily empirical true. In this sense, it is a classic overbroad rule.

This conclusion was forcefully expressed by Rothstein J in Khosa. In that context, the Supreme Court majority held that the ordinary principles of judicial review apply when the Federal Court reviews decisions of federal decision-makers. But the Court gave no effect to the Federal Courts Act, which establishes certain grounds of review that could also be said to imply standards of review (see s.18.1(4)). Rothstein J noted that “a common law standard of review analysis is not necessary where the legislature has provided for standards of review” (Khosa, at para 99).  Instead, where the legislature has done so,  the common law idea of deference melts away. It is for the legislature to evaluate expertise, and include a privative clause, if it sees fit to mandate deference; it is not for the court to simply override legislative language in service of some court-created ideal of deference.

Rothstein J’s position is on better footing. Rather than buying into the expertise presumption, and the subversion of the relationship between common and statutory law that it creates, his position expresses support for the typical relationship between these two types of law; statutory law takes priority over the common law. It is for the legislature to prescribe the relevant standard of review. And in the context of the Court of Quebec—at least the relevant statutes in the case—the legislature has. Of the eight statutes at play in the Quebec case, all of them contain a statutory right of appeal. Some even contain language specifying that “The Court can confirm, alter or quash any decision submitted to it and render the decision which it considers should have been rendered in first instance (see para 217; s.175 of the Professional Code). This is strong, “correctness”-type language.  Even in absence of such language, a statutory right of appeal ousts the common law rule of deference, and removes any constitutional doubt from the issue. In each case of a statutory right of appeal, it is a sign that deference should not be the modus operandi.

Addressing the Constitutional Problem: The Core of Judicial Review

But, whether or not my preferred position is adopted, there could still be cases where deference arises—either by legislative language or judicially imposed doctrines. In such a case, was the Quebec Court of Appeal right to hold that there is no constitutional problem with deference?

In my view, it was not. The starting point is the Supreme Court’s comment in MacMillan Bloedel that it is not permissible for the legislature to remove any “core” powers of the superior courts in the provinces (MacMillan Bloedel, at para 37). As the Court noted, “ [d]estroying part of the core jurisdiction would be tantamount to abolishing the superior courts of general jurisdiction.” Therefore, even abolishing part of the core jurisdiction is tantamount to destroying it all, according to the Supreme Court. This conclusion was cited by the Quebec Court of Appeal (at para 46).

What is protected in the core jurisdiction? For our purposes, as the Quebec Court of Appeal noted, “the exercise of a superintending and reforming power over the provincial courts of inferior jurisdiction and provincial public bodies” is part of the core (at para 45, citing MacMillan Blodel at paras 34 and 35). This is an aspect of the core jurisdiction which can never be removed—even in part. Yet the effect of asking the Court of Quebec to apply deference is to dilute this reviewing function. As Professor Daly notes in his “Les appels administratifs au Canada” (2015) 93 Canadian Bar Review 71:

This power of the Superior Court to correct certain types of illegalities committed by inferior tribunals in the exercise of their jurisdiction was an integral part of the Court’s supervisory authority as it existed in 1867; it is therefore clear that such control power cannot be validly transferred by the Legislature from the Superior Court to a court that is not comprised within the enumeration contained in s. 96 of the B.N.A. Act.

Attorney General (Que.) et al. v. Farrah [1978] 2 SCR 638 at p. 654. See similarly Séminaire de Chicoutimi v. City of Chicoutimi, 1972 CanLII 153 (SCC), [1973] S.C.R. 681.

The requirement of deference significantly dilutes this role, to the point where the core power of the superior court is imperiled. This is because of a “double deference” problem, as Professor Daly argues. The Court of Quebec will apply deference to the administrative tribunal’s legal findings. Then, the Superior Court will defer to the Court of Quebec. When the Superior Court defers, though, it simply asks whether the Court of Quebec’s decisions is reasonable or not. It does not get a first instance glimpse of the legality of the decision. This double deference problem significantly limits, if not fundamentally changes, the task of the Superior Court.

The Court in the Reference responds to this problem by saying that:

[W]hen the Superior Court hears an application for judicial review of a judgment of the Court of Quebec, it must begin by focusing on the administrative decision in order to first determine whether the Court of Quebec identified the appropriate standard (which, in Superior Court, is a question of law subject to the correctness standard, and then determine whether it applied the standard properly. Thus, strictly speaking, the judgment of the Court of Quebec is set to one side and the impugned administrative decision is the one under review.

This might solve the double deference problem, but it creates a whole other issue: it deprives the Court of Quebec of the appellate jurisdiction that the legislature intended it to have (see Professor Daly’s post here). Now, the Court of Quebec’s ruling is set aside. Here again is another example of courts failing to respect legislative intent.

This is a less-than-ideal solution to the constitutional problem of double-deference.

Conclusion

This is a complex case, and my views are necessarily tentative. But I think, in the first place, that the constitutional problem can be avoided in many cases by simply giving effect to the appellate jurisdiction that the legislature granted to the Court of Quebec. In cases where the problem does arise, I think the Quebec Court of Appeal’s solution to the problem is less than ideal, because it again ignores legislative intent.

CARL v Canada, 2019 FC 1126: Administrative Delegation and Guidelines

How far can an administrative agency go before it fetters its decision-making discretion? This is an important practical question. On one hand, the Federal Court of Appeal has recognized that agencies can issue guidelines—even in absence of any legislative authorization to do so (Thamotharem, at para 56), in part because agencies are masters in their own house (Prassad, at 568-569). One might argue that such a power is important and necessary for good government. But on the other hand, agencies cannot bind their own decision-makers through non-legal, non-binding policy guidelines—this impinges on the necessity, at common law, for decision-makers to exercise their functions independently. How do we square this impossible circle? How does independence—central to the Rule of Law, subject to statutory constraints—govern the efficiency of the administrative state?

The case of CARL v Canada, a recent Federal Court case, attempts to address this problem. In this post, I first address the issue at play in CARL. Then I address implications of the decision for good administration. Specifically, I argue that the Parliament should resile from broad-based delegations that empower decision-makers to issue guidelines; instead, these delegations, in order to respect the common law principle of independence, should clearly delineate when and where it is appropriate for decision-makers to bind themselves. The desire should be for more specificity in delegation.

Issue

CARL involved a challenge by the Canadian Association of Refugee Lawyers (CARL) against four so-called “jurisprudential guides” [JG] issued by the Chairperson of the Immigration and Refugee Board [the Board], purporting to guide other members of the Board. Under s.159(1)(h) of the Immigration and Refugee Protection Act [IRPA], Parliament has authorized the Chairperson of the Board to issue JGs, which are guidelines based on model decisions by other decision-makers on the IRB. CARL challenged four JGs (Nigeria, Pakistan, India, and China) on different grounds, only one of which is relevant for us here: “Do the impugned JGs unlawfully fetter Board members’ discretion and improperly encroach upon their adjudicative independence?” (para 55).

After concluding that the JGs in question permissibly specify issues of fact for decision-makers to consider, the Federal Court turned to the main issue of fettering. The Court, after considering the principle of adjudicative independence at common law (there was no Ocean Port argument about statutory ousting; see para 147), started the analysis by stating that there was no authority which permitted a decision-maker “to issue a JG or other “soft law” instrument that constrains the complete freedom of quasi-judicial decision-makers to make their own factual determinations, free from pressure or inducement from others” (102). The Court distinguished this sort of guideline from other situations, such as where a Minister issued his own policy guidelines (see Maple Lodge), and a situation where an adjudicative decision-maker bound itself as to its own procedures (Thamotharem).

The question of whether a guideline impermissibly fetters the discretion of a decision-maker turns on a basic distinction; whether a guideline purports to specify factual circumstances beyond the circumstances before a decision-maker (see para 172). It is fair game, in other words, for a guideline to set out general considerations that a decision-maker should undertake. It is not fair game for guidelines to impose “…an expectation that factual conclusions will be adopted or a requirement to provide reasoned justification as to why such conclusions were not adopted” (see para 150). A lack of indication in a guideline, for example, that each case should be judged on its own merits could be a significant problem (para 139). On the basis of these principles, the Court found that three of the four JGs presented a fettering problem.

Analysis

One might say that this case is largely a run-of-the-mill, administrative law case. One could be right. But normal cases sometimes present an opportunity to grapple with difficult and fundamental issues in administrative law. On that front, there are two main issues that this case raises: (1) the proper balance between administrative efficiency and Rule of Law concerns and (2) the specificity of Parliamentary delegation on these issues.

In my view, the Court in CARL basically outlines the correct principle at the outset when it said that

As far as factual determinations are concerned, the principle that “s/he who hears must decide” is sacrosanct. It is a fundamental pillar of the rule of law. It cannot be sacrificed on the altar of achieving greater consistency and efficiency in administrative decision-making (at para 1).

In absence of statutory ousting, the Court is absolutely correct—independence is an important virtue, connected to the Rule of Law. Where statutes are truly ambiguous, the courts should guard against encroachments on the principle of independence which at common law is extended to administrative decision-makers (see Matsqui). This is because of the Rule of Law itself. For example, Joseph Raz argued in his “The Rule of Law and its Virtue” that an independent judiciary is an integral component of the Rule of Law. It is impossible for all to be subjected equally to the law if the arbiter of the law is not separated from all the parties in front of it. This has particular resonance in administrative law. If an administrative decision-maker is to administer the law through delegated power, it should remain separate and apart from its controller, a particular executive actor. This is all subject, of course, to statutory constraint; the principle of parliamentary sovereignty takes priority over common law independence.

This seems easy enough in the abstract. But the problem becomes more difficult when we are speaking about when administrative decision-makers themselves purport to bind their own discretion in the name of efficiency. Here, the Court’s concern is right on point. The delegation of power to agencies is motivated, in large part, by efficiency concerns. The argument runs something like this: Parliament cannot make, and the executive cannot administer, all of the law required to run a country at any particular point; so Parliament delegates power away to do these things to so-called expert tribunals to take advantage of their expertise, and so that the laws can be administered and made efficiently in order to keep up with modern necessities. I have significant problems with this traditional story, but let us assume it is true. The delegation of power to publish JGs is important from an efficiency perspective, because it creates economies of scale. These economies of scale are particularly directed towards issues of fact, which might arise across factual contexts—this is true with regard to refugee determinations, where the same conditions and facts may frequently arise in relation to specific countries. Those who might view administrative decision-makers as repositories of expert efficiency could say that the frequent issuance of JGs under appropriately delegated authority is highly desirable. The creation of economies of scale in the administrative state—a foundational principle of efficiency—is exactly what we expect from administrative decision-makers.

But the cost of efficiency could come against the judicial independence component of the Rule of Law. If, in the name of efficiency, administrative decision-makers purport to limit the right of individuals to a common law, independent decision-maker, it is clear that the administrative efficiency concern must give way. In this sense, there is no real balance to be had between efficiency and independence. Independence must govern, absent a statute saying otherwise. Experts should be on tap, not on top.

This is particularly true in refugee contexts. Refugee determinations are not a place to experiment with economies of scale. These determinations must be based on the inherent qualities of a refugee claimant’s circumstances. It is an individual assessment. In that context, independence takes on even greater importance. Attempting to completely stultify that process through internal guidelines is profoundly corrosive of a refugee’s right to determination on the facts.

This relates to the second concern. When Parliament delegates power to create JGs in s.159(1)(h), it does so in capacious and ambiguous language:

s.159(1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson

[…]

(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties.

Such a delegation illustrates the broader point about efficiency that characterizes the act of delegation itself. Parliament saw fit, in this delegation, not to specify the kinds or scope of JGs that would be permissible or impermissible. For example, the Court in CARL had to decide whether JGs could be issued in respect of issues of fact. Further, it is unclear just how far a JG should be able to go, if indeed such an instrument could be used to specify issues of fact. Rather than specifying these matters, the delegation is broad-based, purporting to clothe the Chairperson of the IRB with authority to issue guidelines of any sort. But clearly, such guidelines could be problematic from an independence perspective. These sorts of broad delegations, while lawful and constitutional, are undesirable from a good governance perspective. They fail to adequately state up front the sorts of considerations that decision-makers and courts should take into effect when issuing and reviewing JGs. The failure to do so rests a great deal of authority in administrative decision-makers to issue any number of JGs, with the only control an application for judicial review.

The weight of controlling administrative discretion cannot be borne by the courts alone. Parliament, too, has a role to play in good governance; by issuing clear, legislative rules that bind these decision-makers in the exercise of their authority. The goal of such rules would be to clearly demarcate where common law protections begin and end. Put differently, administrative decision-makers should not be able to, internally, subvert the common law of independence without Parliament’s express imprimatur. Otherwise, the game is rigged from the inside.

Offspring of Depravity

The origins of the administrative state, and why they matter

To a degree that is, I think, unusual among other areas of the law, administrative law in the United States and, to a lesser extent, in Canada is riven by a conflict about its underlying institution. To be sure there, there are some constitutional lawyers who speak of getting rid of judicial review of legislation and so transferring the constitution to the realm of politics, rather than law, but that’s very much a minority view. Labour unions have their critics, but not so much among labour lawyers. But the administrative state is under attack from within the field of administrative law. It has, of course, its resolute defenders too, some of them going so far as to argue that the administrative state has somehow become a constitutional requirement.

In an interesting article on “The Depravity of the 1930s and the Modern Administrative State” recently published in the Notre Dame Law Review, Steven G. Calabresi and Gary Lawson challenge the defenders of the administrative state by pointing out its intellectual origins in what they persuasively argue was

a time, worldwide and in the United States, of truly awful ideas about government, about humanity, and about the fundamental unit of moral worth—ideas which, even in relatively benign forms, have institutional consequences that … should be fiercely resisted. (828)

That time was the 1930s.


Professors Calabresi and Lawson point out that the creation of the administrative state was spearheaded by thinkers ― first the original “progressives” and then New Dealers ― who “fundamentally did not believe that all men are created equal and should democratically govern themselves through representative institutions”. (829) At an extreme, this rejection of the belief in equality led them to embrace eugenics, whose popularity in the United States peaked in the 1930s. But the faith in expertise and “the modern descendants of Platonic philosopher kings, distinguished by their academic pedigrees rather than the metals in their souls” (829) is a less radical manifestation of the same tendency.

The experts, real or supposed ― some of whom “might well be bona fide experts [while] [o]thers might be partisan hacks, incompetent, entirely lacking in judgment beyond their narrow sphere of learning, or some combination thereof” (830n) ― would not “serve as wise counselors to autonomous individuals and elected representatives [but] as guardians for servile wards”. (830) According to the “advanced” thinkers of the 1930s, “[o]rdinary people simply could not handle the complexities of modern life, so they needed to be managed by their betters. All for the greater good, of course.” (834) Individual agency was, in any case, discounted: “the basic unit of value was a collective: the nation, the race, or the tribe. Individuals were simply cells in an organic whole rather than ends in themselves.” (834)

Professors Calabresi and Lawson are careful to stress that the point of their argument is not condemn the administrative state by association with the worst excesses of the times in which it originated. Rather, they want to push back against the trend, exemplified in articles such as Gillian Metzger’s “1930s Redux: The Administrative State Under Siege“, of treating the foundation of the administrative state as deserving of particular deference or respect. They explain that

[b]ecause there is no authoritative constitutional text emanating from the 1930s, any reasons for treating that decade as interpretatively sacrosanct must focus on the moral goodness of the ideas that grounded that period. Many of the intellectual currents that dominated the 1930s were, frankly, very bad. As a starting point for thinking about human affairs, one’s first instinct should be to run as far away from that decade as quickly as one can. More fundamentally, the bad ideas of the 1930s that specifically drove the construction of certain parts of the modern administrative state—belief in omnipotent government by socially superior experts under broad subdelegations of legislative power, with a formal (or rote) separation of powers seen as an anachronistic hindrance to modern scientific management of people, who are not ends in themselves but simply means to the accomplishment of collective nationalist or tribalist ends—are at the intellectual core of just about everything bad that occurred during that decade. (839)

Professors Calabresi and Lawson conclude that, instead of looking to the 1930s as a source of public law we should ― even on purely moral grounds, in addition to fidelity to law ― we should look to the 1780s and the 1860s. The former decade was marked by “libertarian and egalitarian commitments to replace European feudalism with something new and better”, (842) as well as to separation of powers; the latter, by important progress in the implementation of those libertarian and egalitarian commitments, initially admittedly honoured in the breach in many ways. Professors Calabresi and Lawson also appeal to another historical point: the signing of the Magna Carta at Runnymede in 1215, to which they trace what they call “the principle of legality, which says that executive and judicial actors can only act in accordance with preexisting law”. (863)


While I think it is a little, and perhaps more than a little, optimistic to connect this principle ― this formulation of the Rule of Law ― to the Magna Carta, it is supposed to be central to Canadian, and not only American, administrative law. As the Supreme Court said in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, “[b]y virtue of the rule of law principle, all exercises of public authority must find their source in law.  All decision-making powers have legal limits”. [28] But the belief in the superiority of administrative power wielded by alleged experts for what is deemed, by them, to be the public good is very much a part of our administrative law too, and it goes back to the same roots as that of the American champions of the administrative state. As co-blogger Mark Mancini has argued here,

the reasons marshalled for why we defer to administrative agencies are the same today as they were in the 1940s. … For the most part, Canadian administrative law continues to be stuck in the thrall of American Progressivism—by which I mean [the] school of thought[] dominant in the New Deal era.

As Mark notes, “in Canada, we had our own band of administrative law Progressives” ― though of course they looked to the United States for inspiration. (There’s anything wrong with looking to the United States, of course; that’s what I’m doing here!) But then again, we had also had our own band of eugenicist progressives too, some of whom have statues on Parliament Hill. And we had our more peculiar rotten ideas about government too. The 1930s were a bad time ― arguably an especially bad time― in Canada, as well as in the United States and, for this reason, the argument made by Professors Calabresi and Lawson is relevant to Canadians.

Of course, the Canadian constitution is not the same is the American one. In particular, it does not incorporate as strong a conception of the separation of powers. Arguments to the effect that the administrative state in its current form is unconstitutional are much less straightforward in Canada; perhaps they are wrong. Certainly the case against the delegation of legislative power is more difficult to make under the Constitution Act, 1867, than under the U.S. Constitution. But all this means is that the moral case made by Professors Calabresi and Lawson is that much more significant. If the modern administrative state is the misbegotten offspring of an especially depraved epoch, then it should be dismantled, even if it is not unconstitutional. (The case for it being constitutionally required, however, is that much weaker ― not that it had much strength to begin with.)

And the advice to look to the 1780s or the 1860s is applicable to Canada too. Admittedly, the 1780s do not hold the same significance for our constitutional history as they do for our neighbours. But the ideas of what Jeremy Waldron calls “enlightenment constitutionalism”, which Professors Calabresi and Lawson associate with the 1780s, are relevant to Canada. Indeed, our own constitutional arrangements implement some of what, as I suggested in my critique of Professor Waldron’s arguments here, were the Enlightenment’s signal contributions to constitutional thought ― federalism and judicial review of legislation. As for the 1860s, sapienti sat.


As I noted at the outset, the moral worth of the administrative state is not just a matter for political philosophers to debate. It is an issue that is tied up with the ongoing fights about the details of administrative law doctrine. Perhaps this worth is unconnected to its sinister origins. But I think that it is for pro-administrativists to make this case. And I am quite skeptical that they can succeed. As have noted a number of times, most recently here, “[t]he administrative state is the state of prisons, of border control, of professional regulators determined to silence their members if not to impose official ideology on them”. It has come rather less far from its smug, authoritarian beginnings than its defenders would have us believe.

More Charter Values Nonsense

When will this end?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

***

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

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

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

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

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

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

***

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

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

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

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

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

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

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

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

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

It’s Happening Here Too

Canadians need to heed David Bernstein’s warning about administrative decision-makers’ disregard of constitutional rights

A very interesting article by David E. Bernstein, “Anti-Discrimination Laws and the Administrative State: A Skeptic’s Look at Administrative Constitutionalism” has recently been published in the Notre Dame Law Review. Professor Bernstein cautions against allowing administrative decision-makers to pursue egalitarian goals unchecked by judicial supervision, because this pursuit often tramples over constitutional guarantees, especially freedom of speech. It is a compelling warning, and deserves the interest of Canadian readers, because the problems Professor Bernstein identifies afflict Canadian law. Indeed, much of his argument applies to the administrative enforcement of other statutes, not only anti-discrimination ones.


Professor Bernstein takes aim at the view, which he attributes to a significant number of American scholars, that administrative decision-makers both do and ought to play a very significant role in defining the scope and content of constitutional protections for certain fundamental rights. This view, “administrative constitutionalism”, rests on a number of arguments. Its supporters think that administrative decision-making “is more transparent than” the judicial sort, that administrators “are more accountable to public opinion than are courts”, and that they bring their expertise to bear on the application of constitutional standards to particular regulatory schemes. (1384) Professor Bernstein provides a number of examples of administrative decision-makers “aggressively enforcing antidiscrimination laws at the expense of constitutional protections for freedom of expression and guarantees of due process of law”, (1386) sometimes in defiance of relevant Supreme Court precedent and political direction. These will be of considerable interest to readers who follow American legal and political developments.

But what is more interesting from a parochial Canadian perspective is Professor Bernstein’s analysis of the situation ― his explanation for why administrative decision-makers tend to apply the law in a way furthers their statutory mission at the expense of the constitutional rights of those subject to their decisions. The explanation is partly institutional, and partly ideological.

The first institutional fact that contributes to administrative disregard of constitutional rights, according to Professor Bernstein, is that administrative decision-makers “maximize their power and budget”, and secure “political support, by expanding the scope of the laws they enforce”. (1401) Constitutional limits to this expansion are brushed aside. Second, a purposivist approach to statutory interpretation “practically invites agencies to find and even create ambiguities so that they can interpret statutes broadly”. (1402) In doing so, administrative decision-makers see themselves as accomplishing legislative goals, and ignore the compromises that may have been involved in the enactment of their enabling legislation. Third, administrative “agencies tend to attract employees who are committed to the agency’s regulatory mission” (1403) and want to expand their own power to, as they see it, do good. While some instances of regulatory overreach invite pushback from those subject to the regulation, this is generally not the case when it comes to “antidiscrimination regulation”, in part because “many businesses hesitate to publicly oppose” this regulation “because of the negative public relations implications”. (1403) Fourth and last, administrative decision-makers “do not see enforcing constitutional constraints on their authority as their job”. (1404) The courts themselves are partly to blame for this, because they often discourage the bureaucrats from looking to the constitution. But, for their part, supporters of “administrative constitutionalism” positively encourage administrative decision-makers to treat constitutional constraints as no more than a factor, among others, to take into account or to reject.

As for ideological concerns, they have to do with the fact that “conflicts between freedom of expression on the one hand, and restrictions on discrimination by private actors on the other, are conflicts between a
constitutional right and a statutory privilege”. (1406) As a matter of orthodox law the former ought to prevail, but for those “who believe that protecting vulnerable groups from discrimination should be at the heart of our legal and political system”, (1406) such an outcome would be wrong. They are accordingly inclined to discount constitutional concerns, or to seek to re-balance them by appealing to “the notion that the ‘constitutional value’ of antidiscrimination should trump First Amendment limitations on government regulation”. (1407) These views are prevalent not only in the legal academy, but also among activists ― and their ideological allies among the administrative decision-makers in charge of enforcing anti-discrimination laws. The fact that “[a]t the state and local level” these decision-makers are often

known as ‘human rights commissions’ … suggest[s] that the right to be free from private discrimination is at least as valuable as other rights, including constitutional rights. Indeed, the phrase ‘human rights’ suggests a superiority over mere textually supported constitutional rights. (1408)

So why, Professor Bernstein asks, don’t the courts do something about administrative decision-makers run amok? After all, the courts ― at least “generalist courts” ― “do not share mission-driven agencies’ tunnel vision, i.e., the latter’s devotion to its statutory mission at the expense of
other considerations”. (1410) But the administrative state is often able to escape scrutiny by using settlements or ostensibly “soft” forms of regulation that are not subject to judicial review. Professor Bernstein argues that courts should engage in review of administrative action more often, and that they ought to be less deferential when they do so. He also suggests possible institutional reforms, notably “to establish constitutional watchdog offices devoted to protecting constitutional rights from
[administrative] overreach”, (1413) whether within individual administrative entities or for the government as a whole.


Canadian readers probably do not need me to tell them that the issues Professor Bernstein describes arise with at least as much, and probably more, urgency in Canada. After all, although it rests on foundations that are partly different from those of its American counterpart, and goes by a different name, administrative constitutionalism is the law of the land in Canada, whenever a court is minded to follow the precedent set in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. In Doré, the Supreme Court held that, given their alleged expertise in applying constitutional “values” in the context of specific statutory schemes, administrative decision-makers are entitled to judicial deference, even in cases where the Canadian Charter of Rights and Freedoms is implicated. Whether an administrative decision gives effect to constitutional “values” ― not even rights ― as fully as possible in light of the statutory objectives is to be assessed on a standard of reasonableness. The Supreme Court also confirmed that reasonableness is the presumptive standard of review applicable to the decisions of anti-discrimination tribunals, in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 SCR 230 (although this was not a Charter case).

Admittedly, the Supreme Court hasn’t always been inclined to do so, occasionally simply ignoring Doré. But its latest engagement with administrative interference with constitutional rights, in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293, reiterated the applicability of the Doré framework, although it is worth pointing out that the Court’s majority insisted that this wasn’t supposed to be “a weak or watered-down version of proportionality”. [80] Still, the majority wrote that

Doré’s approach recognizes that an administrative decision-maker, exercising a discretionary power under his or her home statute, typically brings expertise to the balancing of a Charter protection with the statutory objectives at stake … Consequently, the decision-maker is generally in the best position to weigh the Charter protections with his or her statutory mandate in light of the specific facts of the case … It follows that deference is warranted when a reviewing court is determining whether the decision reflects a proportionate balance. [79; references omitted]

Professor Bernstein’s article helps us identify the folly of this approach. Despite the claims to the contrary of Justice Abella (the author of the Supreme Court’s opinion in Doré and the most strident defender of “administrative constitutionalism”, most recently in Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29) and her colleagues, administrative decision-makers are unlikely to take the constitution, or even constitutional “values”, seriously at all. Granted, unlike their American counterparts, Canadian courts do not discourage bureaucrats from taking the Charter into account. Justice Abella, in particular, exhorts them to do so. But such exhortation is unlikely to mean much, compared with the much more concrete incentives Professor Bernstein identifies.

Canadian bureaucrats, no less than their American colleagues, want to expand their power and to advance their and their allies’ ideological goals. The seemingly expanding efforts of human rights bureaucracies or other administrative decision-makers (such as the former benchers of the former Law Society of Upper Canada) to police speech in the name of equality are an illustration of these twin tendencies. And while there has been pushback against the Law Society’s demand that lawyers “promote equality, diversity, and inclusion”, culminating in the election of a plurality of benchers opposed to this imposition, the incentives, both in the private sector and, still more in, say, public educational institutions are very much on the side of tacit or even vocal endorsement of the one-way ratchet of obstensibly pro-equality agenda.

The Supreme Court’s rulings on statutory interpretation exacerbate this problem. In West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635, the majority insisted that the statute at issue featured a “broad and unrestricted delegation[s] of power” [11] so that an administrative decision-maker could pursue its purposes; in TWU, the majority also spoke of a statutory objective “stated in the broadest possible terms”. [33] (West Fraser, to be sure, was not a case implicating constitutional rights. TWU was such a case, however, and their logic is much the same.) In both cases, as I explained respectively here and here, the majority gave no effect to statutory language suggesting that the administrative decision-makers’ powers were not, in fact, unlimited, to which dissents sought to draw its attention. In West Fraser, the majority opinion disparaged attention to such details as “formalistic”. [18] As Professor Bernstein points out, when empowered to pursue expansively defined statutory missions, administrative decision-makers will be unlikely to pay much heed to constitutional concerns. Indeed, TWU offers a perfect illustration of this, since the Supreme Court ended up having to make up the reasons that supposedly justified the administrative decisions at issue.

What Professor Bernstein terms “ideological” factors operate in Canada too. Here too, the value of non-discrimination in the private sphere, branded as a “human right” by federal and provincial legislation alike is held to prevail over such constitutional concerns as freedom of expression and freedom of conscience. The TWU majority spoke of “shared values”, notably non-discrimination, as a valid reason for limiting constitutional rights, despite the fact that the Charter explicitly provides that it does not expand the law-making powers of legislatures or their creatures in the administrative state.


Like Professor Bernstein, I will conclude with an appeal for greater judicial scrutiny of administrative decisions that implicate constitutional rights. Judges ought to realize that administrative decision-makers have no particular incentive to be mindful of the constitution, and real incentives to disregard it. Even when they act in good faith, bureaucrats suffer from a single-minded, excessive focus on their statutory missions, real or assumed, that is bound to divert their attention from constitutional rules that ought to be paramount for all those who exercise public power, but in reality matter primarily to the courts ― if they matter to anyone.

To be clear, the issue is not only with the Doré framework ― though this is the most obvious way in which excessive and unwarranted deference is given to administrative decision-makers when they decide Charter questions. The Doré framework must go, the sooner the better, but this is not enough. The idea that “values” are an adequate substitute for law, whether as a source of constitutional guarantees or of administrative powers, must go along with the Doré framework, to which it is closely linked. And the Supreme Court’s approach to statutory interpretation, and in particular its willingness to countenance supposedly “unrestricted delegations” of power to administrative decision-makers, even if this requires disregarding more circumscribed statutory language, must go too. This, in turn, may require an end of the Court’s fascination with administrative expertise and its pro-regulatory bias.

This is, admittedly, a very ambitious programme. But, as Professor Bernstein shows, it is on that must be attempted if constitutional constraints are to be meaningful in the administrative state. “Administrative constitutionalism” is no substitute for the real thing. This is precisely why its supporters, who are not willing to accept constraints on what they believe is the bureaucracy’s power to do good, advocate for it. This is why we must reject it.