Don’t ask, don’t tell?

No, it’s not a post about gays in the U.S. armed forces. That’s so passé anyway. Actually, what I want to talk about is co-operative federalism again, the fascinating topic of the least-read post on this blog. (To the one brave soul who did read it: I love you, whoever you are!)

More specifically, it is about the question whether one level of government in a federation has to accede to the demand of the other for information in its possession. (My title is not totally gratuitous.) This question was raised in the recent judgment of the Superior Court of Québec on the validity of a subpoena issued by a provincial commission of inquiry demanding that the RCMP hand over large amounts of information it collected while investigating organized crime in Québec’s construction industry. Coincidentally, it is also the topic of an interesting forthcoming article by Robert Mikos, of Vanderbilt University Law School.

As prof. Mikos points out, for one government (that of a U.S. state in his paper) to hand over information it has collected to the other government has certain costs. The most obvious, albeit often not a large one, is the direct cost of the time government employees spend working, in effect, for someone other than the people paying them. More subtly, citizens might be discouraged from handing over information to one government if they know that it can end up in the hands of the other. Most importantly, the government which complies with the request for information thereby participates in the enforcement of the policies of the other government, which might be at odds with its own. For example, if a state which allows the medical use of marijuana hands over information about its users  to the federal government, which does not, it possibly helps the federal government arrest and imprison the people who in the state’s opinion are entitled to use the drug. Finally, “such commandeering of the states’ information-gathering apparatus blurs the lines of accountability for unpopular enforcement actions.”

Yet so far, American courts have not accepted these arguments, explains prof. Mikos. He argues that they are wrong, and that federal requests for information held by the states should be considered equivalent to the “commandeering” of their executives by federal authorities, which the U.S. Supreme Court has held to be unconstitutional. This would allow states to resist federal policies with which they disagree and better to give effect to their own.

Compared to these high-minded concerns, the questions at issue in the Québec case, Canada (Procureur général) c. Charbonneau, 2012 QCCS 1701, might be rather pedestrian. At least it does not appear from the judgment that the federal government or the RCMP are opposed, as a matter of principle or policy, to Québec’s inquiry into the shady dealings in its construction industry and that industry’s unsavoury links with the provincial government. (Might this change if the inquiry uncovers links between that industry and the federal government, as a report by the Globe & Mail suggests it well may ?) But given the sheer volume of the information it is asked for, the RCMP is probably concerned about the costs of complying with the request, as it is with preserving the secrecy of its inquiry methods and sources. The court, however, suggests that these concerns are overstated and/or capable of being addressed by the RCMP’s co-operation with the commission of inquiry and with provincial police. As for the constitutional position, the court holds that a commission of inquiry set up pursuant to provincial law can validly subpoena the RCMP and request information in its possession, so long as it does not inquire about the RCMP’s administration. The RCMP, as the Supreme Court has held, is not part of the civil service, and does not enjoy the same immunities from provincial inquiries as the federal Crown or its servants.

Unlike, it would seem, in the U.S., such immunities do exist in Canadian law, and there seems to be no reason for their not applying to provincial, as well as federal government, since provinces and the dominion are constitutionally equal. As the Supreme Court held in A.G. of Québec and Keable v. A.G. of Canada et al., [1979] 1 R.C.S. 218, provincial law cannot authorize a provincial commission of inquiry to force the federal Crown, its ministers or servants, to answer questions or to hand over information. I would assume that the limits that apply to commissions of inquiry also apply, a fortiori, to the federal or provincial civil administration. But this is an area of the law with which I am not familiar, so I have many questions that I do not the answer to, and cannot, at the moment, investigate. For example, if the RCMP is not a part of the civil service, what other federal and provincial agencies could be forced to hand over information? How frequently does this happen? Are issues of policy disagreement between provincial and federal authorities as serious in Canada as in the U.S.?

Two observations in conclusion. First, the gun-registry data litigation, about which I have blogged profusely, is in a sense an example of a government trying to get information from another, albeit with a (big) twist, in that its claim is largely (but not entirely!) based on its own contribution to the collection of this information. And second, whatever limits there might be on what one government can force another to do, there are probably none on what they can agree to.

Constitutional Structure and Economic Outcomes

A few days ago, F.H. Buckley, a professor at the George Mason School of Law (and McGill law graduate and former professor) published in the National Post an op-ed arguing that the Canadian constitutional system, and in particular its lack of separation of powers, serves us rather well by helping maintain a free economy and a fiscally prudent government, especially compared to “America’s second-rate constitutional system.” His colleague, Ilya Somin, has a reply at The Volokh Conspiracy, arguing that those economic outcomes would, on average, be more secure in a “separation of powers system” like that of the United States. I am skeptical of both claims. Continue reading “Constitutional Structure and Economic Outcomes”

Judicial Review and Co-operative Federalism

I would like to return to Justice Blanchard’s reasons for judgment granting the injunction preventing destruction of Québec-related gun-registry data pending judgment on the merits in this case, about which I posted here a couple of days ago.

The case, says Justice Blanchard, is “exceptional,” “a first in Canadian judicial history” (par. 21). The reason it is exceptional is the opposition between the “diametrically opposed views of what is usually called the common good.” I think this is wrong. While the conflict between the federal and a provincial governments’ views of the common good might be especially clear in the gun-registry data litigation, there is nothing exceptional about it. Most federalism cases, certainly all cases that pit a province against the federal government, involve a similar conflict between views of the common good. For example, the federal government thinks that the common good requires a national securities regulator; Québec and Alberta think that it is best served by provincial regulators. The result is a court case. When the two levels of governments agree on a vision of the common good, the co-operate and don’t go to court, the constitution be damned. Healthcare is the prime example: neither s. 91 nor any other provision of the Constitution Act, 1867 give Parliament any role regulating and paying for healthcare, but it does both, because (and perhaps only so long as) the provinces share its view of the public good in this area, and have no inclination to challenge it in court.

What is in fact (almost) unique in the gun-registry litigation is that, as I argued in my first comments on the topic, it actually stems from a co-operative relationship – but one that has broken down. “Normal” federalism cases involve conflicts over who has the power to decide whether and how to regulate certain areas of human activity. Who, of Parliament and provincial legislatures, for example, has the power to decide (whether and) how the securities industry should go about its business. (Not, by the way, who should have this power, as a matter of economic policy; but who actually has it under the specific constitutional arrangements we have in place.) In these cases, courts are called upon to regulate the competitive aspects of federal-provincial relations. The gun-registry litigation is different because what it really is about is not competition for the power to regulate (indeed it is acknowledged that, on the one hand, Parliament has the power not to regulate gun registration if it does not want to, and provincial legislatures have the power to regulate gun registration if they feel like it); it is about “fair terms of co-operation” between the two levels of government, to borrow a phrase from John Rawls (who of course uses it in a different context).

Courts are not often called upon to police the fairness of the terms of co-operation between the federation and its constituent units, and it seems not to be sufficiently theorized. For example, critics of federalism-based judicial review (who are many in the United States, including for example Larry D. Kramer in this article) do not pay any attention to it; Jeremy Waldron’s criticism of judicial review, which is primarily (but not exclusively) directed to rights-based judicial review, is similarly incapable of addressing it. (Some judicial and academic attention in the United States has been directed at one specific problem which arises from co-operative federalism: the tendency of the federal government to attach stringent conditions to grants of funds to sub-federal units, which the Supreme Court of the U.S. addressed in South Dakota v. Dole and will address again in ruling on the constitutionality of “Obamacare.”) Yet judicial review of the fair terms of federal co-operation deserves attention as a distinct constitutional phenomenon. To give but one example, and return, in conclusion, to the gun-registry litigation, Justice Blanchard’s incredulity at the idea of an award of damages as a remedy in a federalism dispute would probably be appropriate if the dispute were, as usual, about competitive federalism; but it might be unfounded in a dispute about the fair terms of federal co-operation.

Dreaming Double

As promised, some thoughts on Jeremy Waldron’s new paper on bicameralism, which I summarized last week.

First, Waldron’s take on bicameralism reflects his usual fondness of and optimism about legislatures. Legislatures can really be great at making policy, resolving disagreements, and protecting rights, he is convinced, if only they function well. “Legislative due process” is an important concern of his; he is sharply critical of legislatures that do not properly scrutinize and debate the bills they enact into law, for example.

He presents bicameralism as a means to enhance “legislative due process” by introducing a second locus of debate about bills and also possibly by adding different points of view to the mix by virtue of making the two chambers of the legislature representative in different ways. In theory, this sounds great. In practice, I wonder whether bicameralism can live up to its promise. Bicameralism will not serve to increase the amount of debate unless both chambers are in fact committed to fully debating the bills before them. But – to take up the mischievous-or-superfluous argument that Waldron criticizes – if there is commitment on the part of one chamber to debate bills in full, how much is there to be gained by then adding a second full debate? Different modes of representation need not produce different perspectives (as the increasing similarity of the Senate and the House of Representatives in the U.S. shows), especially if the process of representation, however it is organized, is dominated by political parties. Representatives’ views are likely to be function of their partisan commitments much more than of the way they are elected.

Waldron is aware of this danger. Although he accepts that party politics are here to stay, he worries about the executive dominating the legislature, and thinks that an executive-dominated second chamber would be worse than useless. He has two (closely related) solutions for this problem. First, prevent members of the second chamber from serving in the Cabinet. Second, make the second chamber not about government, but about oversight, and hope that voters notice the difference (and vote accordingly). But here again, I have strong doubts about the effectiveness of his proposals. The Canadian Senate shows that even people without any prospect of serving in the Cabinet can be quite partisan. In the U.S. too, many Senators probably lack executive-branch ambitions, yet are fiercely partisan (as are, of course, members of the House of Representatives, for the vast majority of whom the Senate is the height of their ambitions). And I wonder about the possibility of a second chamber exercising good -faith scrutiny – not tainted beyond redemption by partisan affinity or hostility – over the work of a first.

So, Waldron’s arguments in favour of bicameralism seem more hypothetical than real; and there are other problems with bicameralism that he does not fully address. The main one is that of conflict between the two chambers, for which the responsible-government constitutional system is simply not equipped. The lack of any provisions to address this issue, by the way, is a disastrous flaw in the current Senate reform proposal in Canada. Of course, any such provisions would profoundly affect the working of Parliament and require constitutional amendment (even if, and it’s a big if, the current proposal does not).

The problem is this. If the second chamber does exercise its scrutiny role properly (even more if it is motivated by partisan opposition to the government), it will sometimes reject important government bills. What then? If the bill is a matter of confidence (as are all money bills, and possibly some others), its defeat by convention triggers the government’s resignation or dissolution of Parliament, usually the latter. But is it a good idea to hand to a second chamber with a “will of its own” (as Waldron wants it) the power to threaten and eventually to force dissolution at any disagreement? If this power can be exercised for partisan purposes, as it seems bound to be, this is a recipe for disaster, with elections coming as often as the second-chamber majority thinks it can install its allies in power. On the other hand, so long as the government thinks it has more to gain from an election than the second-chamber majority, it will be able to ride roughshod over the second chamber’s scrutiny by making any bill a matter of confidence and thus threatening dissolution if it is rejected.

Now we might specify that defeat of a bill in the second chamber never constitutes a loss of confidence in the government, so that it does not trigger resignation or dissolution. But then, we need a mechanism other than an election for getting over the conflict between the two chambers, at least for those bills that need to be passed, such as budgets.  How this is to be done is not obvious (though not impossible), but whatever mechanism is, its existence dilutes the power of the second chamber to reject the government’s proposals and thus diminishes the benefits Waldron hopes for it.

Thus I think that meaningful bicameralism in Westminster-style constitutional systems is bound to remain a dream, and attempts to realize it might turn into nightmares. It would be better, I think, to try to work on the hugely important issues Waldron is concerned about – legislative due process, executive domination of the legislature – by improving existing Houses of Commons (and unicameral provincial legislatures in Canada). Because, as Waldron notes, executives don’t like sharing power, this will be difficult enough.

Waldron on Bicameralism

The ever brilliant and ever productive Jeremy Waldron has posted three new papers on SSRN this week: one on “The Principle of Loyal Opposition,” one on separation of powers, and one on bicameralism. They all look very interesting, and also very relevant to the current Canadian events. I hope to blog on all of them, but I will start with the one on bicameralism, which of course is most relevant given the Harper government’s interest in Senate Reform.

I encourage you to have a look at the paper itself; I cannot hope to do justice to it in a blog post. In addition to being very intelligent, it is also quite funny. I won’t retell the jokes here, but suffice it to say that it starts off “with some observations about alcohol and sex.” Still, if that’s not incentive enough, here’s a summary of Waldron’s argument. Continue reading “Waldron on Bicameralism”

Legal and Political Questions about Student Protests

Faced with the lengthening strikes and the prospect of losing their semester – and thus having their graduation and their entry on the job market delayed – students at many of Québec’s CÉGEPs and universities have turned to the courts and have been seeking, and obtaining, injunctions forcing the schools to get back to teaching the courses they are registered for. The injunctions tend to prevent the student “strikers” from blocking entry to their schools and otherwise disrupting classes. The injunction obtained by a student in a technical programme at the CÉGEP de Saint-Laurent is, I understand, fairly typical. Other injunctions, aiming directly at student protesters, have been obtained by universities.

The law, explained for example in the CÉGEP de Saint-Laurent decision, is quite clear. Student associations do not have the same status as trade unions. They are not entitled to impose their “strike” votes on their members, as trade unions are. Students contract for education services, and pay, however little. They are entitled to have the classes they contract and pay for. They suffer great prejudice if they lose their semester. The protesters, on the other hand, can still protest if they feel like it, despite the injunctions.

Yet the courts’ stepping in to apply the law and grant these injunctions has produced an outcry, including from lawyers. The argument is that what’s going on is a “judicialization” of a social conflict; that the courts are improperly stepping in to resolve political questions. This is the issue I want to address today. What is the distinction between legal and political questions? And is a wrongful “judicialization” affecting the student protests in Québec? Continue reading “Legal and Political Questions about Student Protests”

A Charter Child’s Blues

This was originally written more than three years ago now, but I am fond of the text. I thought I would repost it tomorrow, on the Charter‘s 30th anniversary, but decided to do it today. Hopefully I’ll come up with something more celebratory tomorrow.

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I am a proud Charter child. A copy of the Charter is hanging in my room; right above my bed in fact. Every night I fall asleep secure in the knowledge that “the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” You might I’m really taking too far – or even that I’m nuts. You can even tell me this in so many words. That’s fine. “Everyone has the following fundamental freedoms: freedom of thought, belief, opinion, and expression.” But the Charter, according to our Chief Justice, belongs to the people, so it belongs to me too. I’m not the fat old lady, or the gentleman wearing some sort of cross between a Chinese hat and a sombrero, or a kid playing hockey, or any other character gracing my copy of the Charter. But collectively, they all are me. So why is that that I have been having the Charter blues?
Continue reading “A Charter Child’s Blues”