Vavilov’s Reasonableness Standard: A Legal Hard-Look Review

In my first post on Vavilov, I celebrated the Court for finally bringing some sense to the Canadian law of judicial review. Particularly, I focused on three issues relevant to determining the standard of review: the banishment of jurisdictional questions, the introduction of statutory rights of appeal as a category of correctness review, and the sidelining of expertise from the task of determining the standard of review. I did not address what I consider the real meat of Vavilov: the application of the new, robust [13], reasonableness standard.

As I will set out here, this is the strength of Vavilov because it creates a real legal standard for deference that does not permit decision-makers to “drift” beyond statutory boundaries. It forces reasoning that is explicitly tied to the enabling statute, rather than extraneous “policy” factors. This is a form of legal “hard-look” review that will not enable decision-makers much room to justify outcomes that are inconsistent with the enabling statute or otherwise do not engage with core interpretive elements. Indeed, the enabling statute is “likely to be the most salient aspect of the legal context relevant to a particular decision” [108]. This overarching theory is employed in what the Court mandates for decision-makers, creating a framework, at least on questions of law, that looks something like this:

  • Decision-makers must render a decision that is consistent with the text, context, and purpose of the statute [120] (a focus on outcome)
  • Decision-makers must engage with the most pertinent aspects of text, context, and purpose, with only limited room for omissions where those omissions are “minor” [122], while writing reasons that justify these interpretive choices [84], showing that a decision-maker was “alive to these essential elements” [120].
  • Courts will no longer cooper up defective interpretations of law by ginning up their own reasons for decision [96].

Overall, these three restraints on administrative excess ensure that the statute—as interpreted by the decision-maker, through reasons—is the starting point for all administrative review. This does not abdicate a court’s function; fundamentally, the court will determine whether the reasons evince an engagement with the statutory context in a way that is justifiable and justified [86].

Take first the requirement that a decision-maker render a decision consistent with the text, context, and purpose of the statute. The focus here has two dimensions that make it ideal for the conduct of judicial review as a matter of appreciating statutory boundaries. First, the “reasons first” [84] methodology of the Court protects against what I call the real legacy of Dunsmuir: disguised correctness review. The evil of disguised correctness review was not that it unduly impacted administrative prerogative; it is that it potentially limited the scope of delegated power set by Parliament. The potential for disguised correctness review is now, at the very least, curtailed. Courts have to start with the reasoning of the decision-maker to determine whether it falls within the scope of the legislation [116]. That scope will sometimes be wide, sometimes be narrow, [110] but the administrative reasons, as they interpret the scope of the legislation, are the starting point.

What is to be avoided on this line of thinking is what Justices Abella and Martin did in the Canada Post decision. There, they largely reasoned from their own view of the statute at play, and used that reasoning to judge the decision-maker’s interpretation of the law. This seems odd, considering Justice Abella’s cries about deference in Vavilov itself. Nonetheless, this approach is not–and should not be–a majority approach.

But this is not the end of the inquiry. Ultimately, a court must review, and it will be the reviewing court’s decision as to whether the administrative decision-maker has made a decision that transgresses the scope of the statute. After all, “[i]t will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting,” which justification is assessed “in the eyes of the reviewing court” [110]. Here, the court takes a meaningful role in determining whether the decision strayed beyond the scope of the legislation the decision maker is interpreting; the merits of a decision must be consistent with the text, context, and purpose of the provision [120]. Under this framework, then, courts have a meaningful role to play in implicitly determining the boundaries of statutory limits, in order to then determine whether the administrator’s interpretation can be justified by the legal constraints bearing on it. In other words, under Vavilov, the application of legal constraints is still a preserve of the courts.

Now, consider the requirement that a decision-maker must engage with the essential elements of statutory interpretation: the text, context, and purpose. Here, another balance is struck. On one hand, a decision-maker is not required to engage the formalistic tools of interpretation, at least in “every case” [119]. I take this to mean that decision-makers will not be required to apply ejusdem generis or noscitur a sociis, or other lawyerly lingo. But, it will be necessary for decision-makers to ensure that they do not miss the most salient aspects of text, context, and purpose—at least in some cases—lest their decisions be unreasonable [122]. Their reasons must evince that they weighed the interpretive tools of text, context, and purpose, determining in a given case which is dominant [120].

Ultimately, this is a good development. Administrative decision-makers do not have to dress up their reasons in legal garb, but if they are to be true participants in the legal system—and if they are truly joint partners in upholding the Rule of Law—their reasons must be cognizable to the rest of the legal system. Reasons that are written exclusively in the vernacular of a particular industry or policy area do no good to others seeking to determine whether the decision is consistent with particular statutory limitations. In this sense, while we cannot expect decision-makers to know semantic canons of interpretation, they must justify their decisions so that they are rendered in the language of the most basic tools of interpretation: text, context, and purpose. This is the language of law, and decision-makers, if they are to truly be partners in the enterprise, must speak it to some degree.

In particular, reasons serve a transmitting function on this account. They are a means to and end: the end of judicial review. Their purpose is ensure that courts can adequately assess whether decision-makers have justified their decisions in relation to statutory limits. In this way, the reasons requirement instantiated in Vavilov is ultimately tied back to the enabling statute, the fundamental basis of all administrative law.

Finally, and connected to the above, the importance of reasons means that courts cannot gin up reasons for decision when they are absent on a particular essential element [96]. Indeed:

Where, even if reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.

Why shouldn’t this be permissible? As Justice Stratas noted pre-Vavilov in Bonnybrook (at para 93):

But faced with a silence whose meaning cannot be understood through legitimate interpretation, who am I to grab the Minister’s pen and “supplement” her reasons? Why should I, as a neutral judge, be conscripted into the service of the Minister and discharge her responsibility to write reasons? Even if I am forced to serve the Minister in that way, who am I to guess what the Minister’s reasoning was, fantasize about what might have entered the Minister’s head or, worse, make my thoughts the Minister’s thoughts? And why should I be forced to cooper up the Minister’s position, one that, for all I know, might have been prompted by inadequate, faulty or non-existent information and analysis?

Bonnybrook’s understanding is basically now the law in Vavilov. When administrative decision-makers are delegated power, they are delegated that power with the understanding that they will make decisions at first instance, not courts. If these administrative decision-makers fail to live up to that delegated mandate, that is no fault of the courts, and so it is not the job of the courts to make the decision for the decision-maker. It is, however, the job of the courts to render the decision unreasonable. This is particularly the case where there is a missing part of the decision on a core interpretive element, under which the result of the decision would be different (Vavilov, at para 122).

All together, what Vavilov has created is a new reasonableness standard that is tightly focused statutory limits, using statutory interpretation as a tool for discerning those limits. Of course, there are other “constraints” on decision-making that matter (see Vavilov, para 106) —but where we are talking about legal interpretation, legal constraints will be the most salient element of the decision-maker’s reasoning. Ultimately, this is a positive step forward, since all administrative law is a function of statutory interpretation and analysis.

Much Ado About Context: A Note in Anticipation of Vavilov et al

A short post today about the role of “context” in administrative law. Many speak about “context” in the law of judicial review as if it is some inherent element of the law. In Khosa, Justice Binnie, for example, noted that in applying the reasonableness standard of review, the standard “takes its colour from the context” (Khosa, at para 59). But nowhere did Justice Binnie describe what context matters, or how it matters. In Dunsmuir itself, Bastarache and LeBel JJ said that “[t]he analysis must be contextual in applying the standard of review (Dunsmuir, at para 46). They said this in the context of discussing the “pragmatic and functional” factors that still, nominally, exist under the Dunsmuir framework. Whatever these quotes actually mean, the role of context in the law of judicial review is a distinct school of thought worthy of its own blog post (see Dean R Knight’s Vigilance and Restraint in the Common Law of Judicial Review for more discussion of contextual approaches to the law of judicial review).

Nonetheless, I am always puzzled by generic calls to “context.” Floating on a sea of “context” does nothing to guide litigants or judges in applying the law. What is required are simple, clear rules that are attuned to the fact that decision-makers arise in different statutory contexts, that can guide the parties and judges involved in applications for judicial review (for a contrary view about the search for simplicity in the law of judicial review, see Justice Cromwell’s “What I Think I Have Learned About Administrative Law” in the CJALP).

How can one have simple rules that adequately capture the vast array of decision-makers? This is, I think, the core dilemma facing the Supreme Court in the Vavilov case and perhaps in the law of judicial review more generally. For me, the key in enshrining the role of context is to look to the varied statutory contexts in which administrative decisions are made. Clearly, when speaking about context, we cannot mean that the standard of review analysis must encapsulate how decision-makers empirically act on a day-to-day basis. That is, courts cannot afford more or less deference based on how administrators actually act in the context of their day-to-day jobs. This would be an information-intensive exercise that judicial review courts are, obviously, ill-equipped to handle. So we need some proxy for context that takes into account the varying ways in which administrative decision-makers exercise their powers.

Of course, administrative decision-makers live in a world where their powers are “themselves confined” by statutes (Dunsmuir, at para 29). This means that administrative powers are delegated in the context of broader statutory schemes that set out when, how, and under what circumstances delegated powers are to be exercised. For example, are administrative decisions covered by a strong privative clause, impliedly signalling that Parliament wanted to limit judicial oversight? This is a sign, perhaps, that deference should be afforded. Has Parliament set out a list of factors that a decision-maker must consider (see Farwaha, at para 91)? This means that the decision-maker must consider these factors, not ones extraneous to the legislation—all things equal, this is a sign that the court must only consider whether the decision-maker considered these factors. Every statute is different, and each statute will affect the way in which courts review particular exercises of delegated power.

Practically, this means that what we require are meta-rules for courts to apply in analyzing statutes in service of deciding and applying on a standard of review—in other words, we need rules for deciding what statutory context matters. Luckily, we have those meta-rules: the rules of statutory interpretation. The Supreme Court has recognized that the principles of statutory interpretation are key in discerning the scope–and therefore the intensity of review–of delegated power (Bibeault, at para 120; also recognizing the difficulty of the task). And this is the key: if statutory context is the best evidence we have of what the legislature meant when it delegated power to a decision-maker, then the rules of statutory interpretation are all we need to discern how much deference is owed a particular decision-maker.

What is to be avoided, on this line of thought, is the Supreme Court’s generic approach that institutes a rule that clearly ignores statutory context. The presumption of deference on home statute interpretation increasingly applies without viewing any statutory context (see my post on CHRC, for example). And as I wrote earlier, the Court rarely pays attention to implicit signals from the legislature, through statutory rights of appeal and other legislative mechanisms (though the Court did so admirably in Tervita and Rogers). This seems contrary to the whole search for legislative “intent” that characterizes this area of the law.

If context is truly to mean context, then the Supreme Court should pay attention to the varied statutory contexts in which administrative decision-making occurs, by giving effect to the legislature’s meaning.

Upcoming Talks

Following in my co-blogger Leonid Sirota’s footsteps, I am posting a list of the talks I am giving across Canada this fall. My list is much shorter than Leonid’s, but if you are at any of these events, please feel free to come say hello. As Leonid says, it is always great to meet readers of the blog in person:

September 19: University of Saskatchewan College of Law, 11:30-1pm, “The Extreme Intoxication Defence” with Professor Sarah Burningham. I will discuss my recent paper on the McCaw case and declarations of invalidity in superior courts.

September 20: Canadian Law and Economics Association Annual Conference, University of Toronto Faculty of Law, 12:00pm: “An Economic Theory of Immunization in the Canadian Law of Judicial Review.” My paper deals with the problem of immunization adverted to in a number of Federal Court of Appeal decisions, and advances an informational explanation for the causes of immunization.

More information on the conference here. 

October 18: Université de Montréal (Symposium of the Journal of Commonwealth Law): “The Political Problem with Human Rights Tribunals,” a discussion of the norm of independence in administrative decision-making and the tension between political accountability and independence.

Hope to see you at one of these events!

Upcoming Canadian Talks

Save the dates!

In a couple of weeks, I will be hopping on to a 13-hour transpacific flight and heading to Canada to give a series of talks. Here are the dates and topics. I don’t have all the details about the exact time and location yet, so if you are based at or near one of the host institutions, keep an eye out ― or get in touch with me or my hosts closer to the day.

  • September 26, University of Victoria, Faculty of Law (Runnymede Society): “The Road to Serfdom, 75 Years On”. I take it that this will be inaugural Runnymede event at UVic, and I am very honoured to be part of it.
  • September 30, Université de Sherbrooke, Faculty of Law: « Route de la Servitude: fermée pour travaux (de démolition)… depuis 75 ans ». This will be the French version of the UVic talk; I’m afraid I’m a bit puzzled by the title, but I didn’t to choose it.
  • October 2, University of Toronto, Faculty of Law (Runnymede Society): “An Election Is No Time to Discuss Serious Issues. Really?” This will be discussion of the regulation of civil society participation in election campaigns, which has been much in the news in recent weeks.
  • October 4, University of Waterloo (Freedom of Expression in Canada Workshop): “A Conscience- and Integrity-Based Approach to Compelled Speech”. The workshop is being organized by Emmett Macfarlane, who has just told it is full… but there is apparently a waitlist. My paper builds, of course, on what I have had to say about things like the citizenship oath, the Law Society of Ontario’s “statement of principles”, and Ontario’s anti-carbon-tax stickers.
  • October 9, Université du Québec à Montréal, Département des sciences juridiques: « Les élections sont-elles une occasion de se taire? ». This will be the French version of the Toronto talk, with a discussion of the Québec legislation thrown in.
  • October 11-12, Ottawa (Workshop on the Royal Prerogative): “The Royal Prerogative in New Zealand”. This is the first meeting of a group put together by Philippe Lagassé to carry out a SSHRC-funded research project on the prerogative in Canada, the UK, Australia, and New Zealand. Professor Lagassé also tells me the workshop is “pretty much full”. Are you seeing a theme here? Yep, I’ve managed to get myself invited to really cool workshops.
  • October 16, McGill University, Faculty of Law (Runnymede Society): a discussion with Paul Daly on administrative law. If the Supreme Court co-operates, we will, of course, discuss the Vavilov and Bell/NFL cases, in which the Court may, or may not, completely change the Canadian law of judicial review. If the decisions are not released, it will be a more general conversation. Either way, I am looking forward to
  • October 18, Université de Montréal (Symposium of the Journal of Commonwealth Law): “Unholy Trinity: The Failure of Administrative Constitutionalism in Canada”. I will be presenting a paper arguing that the Supreme Court’s disgraceful decision in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and the companion Ontario case illustrate the problems that plague “administrative constitutionalism” ― the view that administrative decision-makers’ decisions bearing on constitutional rights are entitled to judicial deference.

I am grateful to the people who have invited me and/or organized these events. (A special shout-out to my co-blogger and president of the Runnymede Society, Mark Mancini!) If you are able to make it to one (or more) of the talks, please say hello. It is always a pleasure to meet some of my readers in person. See you soon!

Access to Justice and the Administrative State

Recently, as is well-known, the Ontario government announced a 30% cut to legal aid. The effects of this cut are already being felt, most prominently at Canada’s largest tribunal. The Immigration and Refugee Board [IRB] announced last week that it expected the legal aid cuts to cause “longer hearings, more postponements and adjournments and more missed deadlines on the part of unrepresented individuals.” According to Maureen Silcoff, President of the Canadian Association of Refugee Lawyers:

Hearings that once took two to three hours will take twice as long…[a]lso, refugees are likely to be unsure of what evidence to provide and which arugments to present, which could in turn, place IRB members in the difficult position of making refugee decisions with limited information…

This is not the first time the IRB has come under the gun for its inability to respond quickly and efficiently to claims. Earlier this summer, the Auditor General reported that wait times at the IRB will increase to 5 years—more than double the current wait time—by 2024. In total, the IRB—which is supposed to be a bulwark of “access to justice” in the administrative state—is not keeping up with the surge of asylum claims made by those seeking entry to Canada.

What does this situation mean for administrative justice? One example does not a trend make, but the combination of existing wait times and the addition of legal aid cuts at the IRB presents a concerning situation for the status of administrative tribunals as a means of effective access to justice. It should no longer be presumed that administrative tribunals are any better than courts at resolving disputes when they are under the thumb of governments that can effectively gut them at any moment.

The starting point for this claim is the existing state of affairs. Access to justice is a term thrown about quite a bit, but it lacks definitional certainty. Most of the time access to justice is bandied about as a term relating to sufficiently quick access to courts, through the means of legal aid, for example. But in today’s day and age, if access to justice is to mean anything at all, it must also ensure that claimants have sufficient access to administrative agencies—an opportunity to challenge actions of those agencies that run afoul of statutory or constitutional rights. Otherwise, access to justice would exclude the whole world of decision-makers that exists outside of courts.

If this is the case, then the legal aid cuts in Ontario are sufficiently problematic to warrant questioning whether the administrative state is functioning as it should. If Parliament and legislatures are to delegate power to these subordinate actors, tasking them with a whole host of decision-making and law-making functions, then they should at least ensure that litigants with legitimate claims have an opportunity to access them. And if they can hobble a major agency so easily, shouldn’t we be concerned?

According to the Supreme Court, the answer is no. The Court, seemingly disregarding previous episodes that sounded the same themes as the legal aid cut and the Auditor General’s report, said the following in Edmonton East:

A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making (at para 22).

Making the same point in a speech in 2017, then Chief Justice McLachlin made a similarly misguided argument:

In sum, without administrative tribunals, the rule of law in the modern regulatory state would falter and fail. Tribunals offer flexible, swift and relevant justice. In an age when access to justice is increasingly lacking, they help to fill the gap. And there is no going back.

And the biggest proponent of the administrative state, Justice Abella, made the same point when she sat on the Court of Appeal for Ontario:

Designed to be less cumbersome, less expensive, less formal and less delayed, these impartial decision-making bodies were to resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly

Rasanen v. Rosemount Instruments Ltd (1994), 17 O.R. (3d) 267 (C.A.) at pp. 279-80

All three of these statements have proven to be untrue, at least in the context of the IRB. Administrative justice is a lesser form of justice if it cannot resolve disputes quickly and efficiently. It is, though, fundamentally a lesser form of justice because it exists under the thumb of government. Government can starve the beast, end its existence, or otherwise hobble its movement as a form of justice. In these ways, the legal aid episode coupled with the effects on the IRB are predictable.

The dangerous part of these comments is the transformation into rationales for judicial deference, as in Edmonton East. Deference to administrative agencies, as I wrote here, should only follow when a court concludes that Parliament meant to legislate deference. Deference is nothing more or less than this; it is not an ad hoc policy issue for judges to assess based on their personal assessments of which agencies are sufficiently accessible. Nonetheless, if access to justice is to be a reason for deference, a broad presumption in favour of the conclusion that agencies are accessible is certainly untrue. The IRB provides but one example, but imagine all of the agencies that will be impacted in Ontario by the legal aid cut.

The broader point here is that access to justice is a policy issue that exists at the behest of the government. It is fundamentally a question of distribution and resources. Similarly, administrative agencies are funded through the Parliamentary Estimates process, and access to those agencies can be gutted peripherally through mechanisms like the legal aid cut. Since both access to justice and administrative agencies exist on the same track, under the control of the same governments, it is possible for the connection between access and the agencies to be severed by the government.

One might say that the same situation exists, at least to some extent, with courts. No matter the truth of that statement, the claim here is that administrative agencies are relatively more efficient than courts. Yet if recent events are any indication, there is at least some reason to question that conclusion.

No matter what comes of IRB or the recent attempts by the government to hobble access to it, the episode should remind us that access to justice sounds in both courts and administrative agencies. And the Supreme Court, counter-intuitively, has instructed us to bend the knee in favour of agencies because they are supposedly more efficient. Query whether this instruction is justified.

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.

At the Executive’s Pleasure

When Parliament delegates power to agencies, it does so for any number of reasons. At least in theory, Parliament could delegate to a tribunal because it genuinely believes that some particular problem requires expert treatment. Parliament could also delegate as part of a “make or buy” decision, in a Coasian sense: the costs of crafting legislation may be prohibitive, and it may make more sense for Parliament to set out the broad strokes and let the agency fill in the blanks. Or, sometimes problems require solving by an independent body. Tribunals, for example, could play an important role in this regard. For example, determining whether a government action is contrary to human rights law is likely best determined by an impartial adjudicator. In such cases, so the story goes, a so-called “flexible” tribunal is best suited to deal efficiently with these sorts of problems.

But the promise of true independence is not often (and perhaps never) realized, because its existence is determined by the legislature and the executive. This should make us question whether the model of administrative justice we currently employ is even working.

The Ontario Human Rights Tribunal is finding this out the hard way. Recently, it came to light that the tribunal is experiencing a shortage of adjudicators, causing mass delays. The shortage is due, apparently, to the Attorney General’s refusal (or failure) to fill vacancies. The Ministry of the Attorney General oversees the province’s tribunals, including the Ontario Human Rights Tribunal. Lawyers and observers have pointed out the effect that the Attorney General’s delay in appointing adjudicators has on procedural fairness rights, and the general efficiency of the administrative justice system. Some people may view this state of affairs as untenable and inappropriate state of affairs, inconsistent with the spirit of administrative justice. But, to my mind, it is predictable.

Why should we expect this? The Tribunal is a recipient of delegated power, under the Ontario Human Rights Code. But like many legislative delegations, power is also concurrently delegated to the executive. As the Supreme Court said in Ocean Port at para 24, this means that tribunals span the constitutional divide between executive and judicial powers, but are primarily invested with these powers by legislative delegation. They are “created precisely for the purpose of implementing government policy.” There is no constitutional principle requiring structural independence, and it need not matter whether the tribunal is adjudicative or regulatory in character.

The Human Rights Tribunal is no exception from the Supreme Court’s comments in Ocean Port. In this case, the legislation specifies the Governor-in-Council has power to make appointments (s.32(2)). The language presupposes that there “shall” be “members” of the Human Rights Tribunal, but how many is left unsaid, presumably up to executive discretion. Otherwise, the only legislative specification on appointments is that appointments must be made according to a particular process (s.32(3)). Other than that, how much members of the tribunal shall be paid (s.32(4)) and their terms of office (s.32(5)) are matters for Cabinet. Cabinet has a wide degree of discretion to shape the efficiency and responsiveness of the administrative process in the Ontario Human Rights Tribunal, supposedly an independent agency, perhaps the “Crown jewel” of administrative law.

The fact that the legislature—at least arguably—even permits this should make us question the actual degree of independence in the administrative state. In fact, recalcitrance in conducting appointments is just one of the many ways that the executive can undermine the project of administrative justice. It is also perfectly legitimate, should the legislation permit it, for a Cabinet, after an election, to fire all the members of a labour board and to replace those members with persons that it sees fit. And this is just on the topic of appointments. Ron Ellis, in his book Unjust By Design (ably summarized by Professor Daly here) goes into detail about the ways in which executive actors can undermine tribunal independence, in a way that undermines the project of administrative justice. Renewal of tribunal members is one way that the executive can do so, but one can also imagine considerations such as the power of the purse and general administrative reorganization as ways in which the executive can subtly (and not so subtly) control the success and efficiency of the administrative state.

This might all sound bad, but I for one, think that independence is an overrated virtue, and should be calibrated to the strength of the case for independence. There is clearly a case for the Bank of Canada to be independent. But one can imagine closer cases. After all, we live in a system of responsible government and political accountability, and creating islands of power without adequate oversight should be concerning. That said, there is clearly a need for the broader category of “independent agencies” in modern administrative decision-making.

So, how do we balance accountability with independence? I think we need to go to the source: Parliament and the legislatures. One way is to insist that Parliament, if it is to empower the executive with power over these tribunals, legislate more specifically. In the Human Rights Tribunal example, perhaps Parliament could specify a minimum number of adjudicators that must exist at a given time. Or it could delegate the power to the Cabinet to do so, but make it a mandatory requirement. More specificity in delegation, while increasing the costs of legislating, also helps to guide executive action and provide constraints on executive recalcitrance.

The Law Reform Commission, in 1985, recommended that the independent agency be decoupled from Cabinet, and instead be made to report directly to Parliament to remove the spectre of executive interference. This might seem desirable, but I fear it prizes independence over accountability. Having someone able to answer, on a day-to-day basis, for the tribunal activities (and to be accountable in a broader sense for the tribunal’s mandate) is an important accountability mechanism in and of itself. It may make more sense for us to expect Parliament to adequately debate and decide on the limits of executive action in relation to tribunals, and then expect responsible ministers to be accountable for whatever they do in relation to the tribunals.

Overall, there is a risk that tribunals merely exist at the executive’s pleasure. But legislatures themselves have made this choice. It is for them to solve.