Inter vira enim loquuntur leges

The pandemic and delegation of power to the executive

Writing in La Presse earlier this week, Martine Valois raises some pointed questions about the extent of the powers the Québec government is exercising by various forms of delegated legislation, without control or even clear authorization by the National Assembly. Professor Valois’s op-ed is worth reading in full, but I would like to focus on one specific point she makes, about a decree that

allows [the government] to suspend orders given by the Superior Court in relation to supervised visits between a child and a parent. In our legal system, which is based on the Rule of Law and separation of powers, a minister cannot suspend a judicial decision. (Translation mine)

Maxime St-Hilaire has a response to Professor Valois over at À qui de droit, which is also worth reading. He is sympathetic on the whole, but on the specific point I am highlighting here, he disagrees. Professor St-Hilaire points out that “incompatible legislation can modify, suspend, or annul the effects of a judgment”, (translation mine here and below) and it is far from certain that this power cannot be delegated to the executive. Professor St-Hilaire points to cases such as In Re Gray, (1918) 57 SCR 150 and the Chemicals Reference, [1943] SCR 1, which accept “imprecise delegation of extremely broad powers ‘of a legislative nature’ to the executive, provided that such legislation can be revoked, and all the more so in an emergency situation”. This power is subject to constitutional limits, arising notably out of the federal division of powers, the protected jurisdiction of superior courts, and the constitutional amendment formula, but none are relevant here.

My own, tentative, view is somewhere in between those of Professors Valois and St-Hilaire. I’m not convinced that the principles of the Rule of Law, let alone separation of powers, can be applied to as to generate a legal prohibition on the delegation of a power to suspend or override court orders. At the same time, however, I think there is a strong case to be made for the proposition that such delegations should not easily be read into general legislative provisions, and that the specific provision invoked by the Québec government does not in fact authorize it to suspend court orders.

I think it is reasonably clear that, in application of the principle of Parliamentary sovereignty, legal rights determined by the judgment of a court can be modified by statute. And it is also clear that, subject to exceptional limitations (notably those in relation to taxation which I recently discussed here), legislatures can delegate their power to change the law to the executive. Is the power to modify rights fixed by court order an exception to this general rule? As readers will recall, I am more open to the possibility of constitutional principles producing specific legal effects, including invalidating some legislative provisions, than many other scholars. But I am not convinced that such an exception can be derived from the principles Professor Valois invokes. No doubt the Rule of Law counsels against upending court orders, but like the more general requirement of legal stability, this is probably not an absolute rule. And no doubt separation of powers says that the executive should not adjudicate disputes, but this is not what is going on here: court orders are suspended, in blanket fashion rather than case-by-case, and will, presumably, then be reinstate, in blanket fashion too.

But while this disposes of the suggestion that there is an absolute, constitutional prohibition on delegating a power to interfere with court orders, the question of whether a given delegation actually accomplishes this is a separate one. The Québec government’s authority to suspend the effect of court judgments is aid to rest on the residual clause in section 123 of the Public Health Act. Section 123 provides that “while the public health emergency is in effect, the Government … may, without delay and without further formality” take a certain number of measures “to protect the health of the population”. Seven types of measures are enumerated, from compulsory vaccination, to closures, quarantines, and evacuations, to building works and expenditures. The residual clause, section 123(8), follows this enumeration, empowering the government to “order any other measure necessary to protect the health of the population”. The question, then, is whether this broadly-worded, but residual, provision, authorizes the government to suspend court orders.

It is true, as Professor St-Hilaire says, that “imprecise delegation of extremely broad powers” is possible under the Supreme Court’s decisions in Gray and Chemicals. But these cases do not stand for the proposition that imprecise delegation must always be taken to enable the government to do whatever it wants. In both, the Court was at least prepared to entertain the possibility that the powers claimed by the executive had not been validly delegated. Both cases concerned the interpretation of a provision of the War Measures Act which granted vast powers to the executive to:

do and authorize such acts and things, and make from time to time such orders and regulations, as [the Governor in Council] may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada; and for greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor in Council shall extend to all matters coming within the classes of subjects hereinafter enumerated… 

In Gray, the issues were, first, whether this was a “Henry VIII clause”, empowering the executive to make regulations that override statutes and, second, whether the subjects of the regulations made under this provision had to be of a similar nature to those enumerated. The majority of the Supreme Court held that the opening part of this provision was broad enough to serve a Henry VIII clause, while the proviso in the second part ousted the application of the ejusdem generis presumption. In Chemicals, the main issue was whether the power delegated by Parliament to the Governor in Council could further be delegated to officials. The Court held that it could, because the power was so sweeping that it was a necessary implication that it would, in part, by exercised by others.

Section 123 of Québec’s Public Health Act is not an exact equivalent to the provision of the War Measures Act interpreted in Gray and Chemicals. Indeed, its structure is almost the opposite. The War Measures Act provided a broad initial delegation to do anything the executive “may … deem necessary or advisable for the security, defence, peace, order and welfare of Canada”, followed by a set of examples said, in Gray, to be not so much illustrative as “marginal” cases for which Parliament thought it expedient to dispel possible doubt. Section 123, by contrast, starts by enumerating a series of specific measures the government is authorized to take, followed by the residual clause in section 123(8). The enumerated measures are the obvious, central examples of a government might need to do in a public health emergency, and there is no language ousting the application of the ejusdem generis presumption. If anything, given this difference in statutory language, Gray arguably provides support for an argument a contrario for the proposition that the residual clause is not to be read as broadly as the War Measures Act delegation. If the Québec legislature really wanted to delegate “extremely broad powers” to the executive, it would have done so differently.

But there is more. Gray and Chemicals are good law so far as they explain the general ability of Parliament to delegate broad powers (including Henry VIII powers and the ability to subdelegate) to the executive. But in another respect, there is a strong argument to be made for the proposition that the law has moved on. In Gray, only Chief Justice Fitzpatrick referred to the argument that “the powers conferred by” the War Measures Act “were not intended to authorize the Governor-in-council to legislate … so as to take away a right … acquired under a statute”, but he easily rejected it. The issue did not arise in Chemicals. But the idea that authority to interfere with existing legal rights must be granted clearly if not expressly, that it will not be readily inferred from open-ended provisions delegating power to the executive, known as the principle of legality, has been much developed in the last few decades. The development has gone further in the United Kingdom than in Canada, but Justice Cromwell’s concurring reasons in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31, unchallenged by any of his colleagues, provide at least some support for the proposition that it is in fact part of Canadian law.

There is, therefore, a serious argument to be made for the proposition that while interference with court orders may be authorized, it needs to be authorized clearly. An “imprecise and broad” delegation, let alone a residual clause following an enumeration of subjects that have nothing to do with court orders, is not enough. There is, of course, no precedent directly on point, and the argument I am advancing here is just that. However, as for example Lord Sumption explained in his Reith Lectures (which I summarized here), it is quite proper for courts, even on a limited view of their power that disclaims substantive review of public policy, to ensure that the legislature has squarely confronted the implications of exorbitant powers it grants the executive (or indeed other unusual consequences that may result from its enactments).

As both Professors Valois and St-Hilaire note, the Rule of Law tends not to fare well in real and perceived emergencies. The Rule of Law is, above all, an ideal, and in such times ideals to be disregarded. Its protection as a matter of positive constitutional law is limited. As a result, contrary to what Professor Valois suggests, I do not think the principle can serve as a categorical bar to legislatively authorized interference with court orders.

At the same time, however, the Rule of Law should not be sold short. At a minimum, it requires courts to read legislation ― even emergency legislation ― carefully, and not to find in it powers beyond those actually given by legislatures. But, more than that, the principle of legality suggests that when a legislature wants to interfere with the ideal of the Rule of Law, it must at least understand what it is doing and even, perhaps, be prepared to pay the political price for it.

Ministers of Truth

A proposal to criminalize epidemic-related “misinformation” is dangerous

The CBC’s Elizabeth Thompson reports on a rather startling development: the federal government is, apparently, giving serious thought to introducing censorship to discussions of the present plague. More specifically, there is talk of “legislation to make it an offence to knowingly spread misinformation that could harm people”, based on a member of the UK House of Commons proposal “for laws to punish those responsible for spreading dangerous misinformation online about the COVID-19 pandemic”. At least some of the opposition seem keen, Ms. Thompson quoting an NDP Member of Parliament as claiming that “Extraordinary times require extraordinary measures and it is about protecting the public”, and reassuring us, I suppose, that “[t]his is not a question of freedom of speech”.

Actually, it is very much a question of freedom of speech. The Supreme Court invalidated an earlier prohibition on the speading of “false” news in R v Zundel, [1992] 2 SCR 731, and for good reason. Such prohibitions mean that government telling us what we are and what we are not allowed to say. Say something the government deems, in the words of the same honourable gentleman, to “interfere with the efforts of our frontline medical workers”, and suffer punishment. This is a limitation of the freedom of speech on any plausible definition of that concept, and for a Member of Parliament to pretend otherwise is not only an illustration of the politicians’ habitual mendacity but, more specifically, a rather ironic way of getting the public used to the idea of meting out punishment for statements that fail to live up to a standard of truth.

It is far from clear just what these restrictions are meant to accomplish. The CBC report quotes a spokesperson from the Communications Security Establishment, an intelligence agency, as warning about “cybercriminals and fraudsters” who “encourage victims to visit fake web sites, open email attachments and click on text message links” that purport to provide health information. But fraud, for example, is already a crime; there is no need for “extraordinary measures” to prohibit it, or for broadly defined bans on “misinformation”. The report also says that “Health Canada … is sending compliance letters to companies it finds making false or questionable claims about COVID-19”. It is not quite clear what sort of compliance is in question here, but presumably ― or at least hopefully ― it’s compliance with existing laws, perhaps ones having to do with advertising, or specifically advertising of health products. If so, then why is more legislation necessary?

For his part, the NDP MP tells, darkly, of “troll bot farms, state operators or … conspiracy theorist cranks who seem to get their kicks out of creating havoc”. State actors with troll bot farms at their disposal are unlikely to be deterred by Canadian legislation. At most, then, it will be targeting conspiracy theorists… and giving them more ammunition for believing the government is hiding things. Is there any evidence at all, actually, that “conspiracy theorist cranks” ― especially ones within the reach of Canadian laws, and not the one domiciled at 1600 Pennsylvania Ave., Washington, DC ― are having a real effect on Canada’s response to the plague?

And on the other side of the scales, there will be real costs to this proposed legislation. Even if it includes the mens rea requirements of knowledge, wilfulness, and malice ― which, if applied, would result in good faith conspiracist cranks being off the hook ― the law is likely to produce chilling effects. Worse, attempts to enforce it, even if they do not ultimately lead to convictions, will target the politically unpopular, or simply those who happen for one reason or another, to incur the displeasure of police services and prosecutors. As concerning as recent stories of overzealous enforcement of “social distancing” regulations are, the problem is much more longstanding one. Readers may remember me blogging about a makeup artist prosecuted for gory videos involving no actual gore or violence whatsoever and Québec blogger who ― stupidly, to be sure ― mused about a mass shooting in the legislature, about the man who had to go all the way to the Ontario Court of Appeal to quash a municipality’s attempt to prosecute him for a solitary, non-violent protest in the town square, and about the author and publisher of a novel prosecuted for a brief and not remotely titillating description of the rape of a child. And the provisions invoked in these cases are all well-known, and not directed at dealing with a crisis. There is every chance that an emergency anti-disinformation law will result in harsh and arbitrary prosecutions. Even if the accused are ultimately acquitted, they will have undergone considerable stress and expense in the meantime. And, again ― for what?

Even in the short term, the harm of a law against plague-related “disinformation” is likely to outweigh what little good it might do. But the real damage it will do will occur in the medium and long term, as it becomes a template for widespread criminalization of statements deemed to be contrary to this or that state policy. The British MP whose ideas are inspiring the Canadian proposals is apparently drawing his own inspiration from “Germany’s laws governing online hate speech or France’s legislation countering disinformation during election campaigns”. And the report itself notes that the federal

government set up an elaborate system to watch out for attempts to disrupt last year’s federal election through disinformation, including a committee that brought together several departments and a special group chaired by the clerk of the Privy Council to sound the alarm.

Once the plague is over, it will be all too tempting to declare something else the next great public emergency, and to repurpose, instead of abolishing, the censorship mechanisms that allow government to silence those who question or undermine its response ― even if stupidly.

If there is there one thing we’ve learned from events of barely a year ago, it’s that clerks of the Privy Council are not always imbued with a great respect for constitutional propriety, or immune to the temptation to shill for their political masters. I would not trust one of them with the job of a Minister of Truth. Nor would I trust the public health authorities, which themselves at times seem quite confused about what the truth is. Indeed, this confusion only serves to underlie the fact that a government that is entitled to impose the truth on its subjects ― who can no longer be counted as citizens ― is also a government that is empowered to lie to them. No one, after, is allowed, and at length able, to tell the difference. The Canadian government needs to reverse course before it becomes a government of this sort.

The Life and Times of Patent Unreasonableness

Post-Vavilov, can a legislature freely specify the standard of review? The answer seems obvious. Legislation overrides the common law, so as the Vavilov majority states, “…where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law” (Vavilov, at para 35).

In most cases, this clear language of the Court will be dispositive. Clearly, where the legislature specifies a standard of review (as opposed to a ground of review—see Khosa), it must be given effect. However, there are niche issues to consider. For example, what about standards of review that have defined statutory or common law meanings? Such a term, for example, is the patent unreasonableness standard, a standard of review that typified the “pragmatic and functional” era in administrative law, and that was put to bed in Dunsmuir. Patent unreasonableness still has some play in the BC Administrative Tribunals Act and in the Ontario Human Rights Code (s.45.8) in relation to decisions by the Ontario Human Rights Tribunal. How affected is the patent unreasonableness standard by Vavilov?

In this post, I want to explore the status of patent unreasonableness post-Vavilov. First, I want to suggest that patent unreasonableness, as a statutory standard of review, is a distinct standard that should be respected post-Vavilov as an instantiation of legislative intent, absent constitutional constraints. I then turn to ask whether such constraints are present, either because of Vavilov or otherwise. As I will note, there are constitutional issues with patent unreasonableness on questions of law that can be framed in various ways. I conclude by noting that patent unreasonableness may be an unconstitutional standard of review.

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Patent unreasonableness, as a standard of review, originally had a common law meaning, as set out in CUPE v New Brunswick (see Dunsmuir, at para 35). In addition to the standards of review of reasonableness simpliciter and correctness, patent unreasonableness was the most deferential standard of review. Patent unreasonableness refers to the “immediacy” or “obviousness” of the defect in a decision-maker’s decision (see Southam, at para 57; Dunsmuir, at para 37). In order for a decision to be found patently unreasonable, the decision must be immediate and obvious (this reminds me of the old ground of an “error on the face of the record). This is the distinguishing factor between the previous distinction between “reasonableness simpliciter” and “patent unreasonableness.”

In Dunsmuir, of course, the Court did away with this distinction, deciding that patent unreasonableness was no longer an available standard of review. The Court reasoned (1) that the distinction between patent unreasonableness and reasonableness was largely illusory (Dunsmuir, at para 41) and (2) that patent unreasonableness might require a a court to accept a decision that is irrational, simply because the error isn’t clear enough—this presents Rule of Law issues (see Dunsmuir, at para 42).

That said, patent unreasonableness as a statutory standard of review remains in some contexts. The BC Administrative Tribunals Act, for example, prescribes a standard of patent unreasonableness where the statute contains a privative clause (section 58(1)). In Ontario, the Human Rights Code, as noted above, prescribes a standard of patent unreasonableness—though the Ontario courts have interpreted this provision as only requiring reasonableness review, in light of Dunsmuir (see Shaw v Phipps ONCA, at para 10). The Supreme Court has held that the standard of patent unreasonableness in this context has a distinct meaning, “but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law” (Khosa, at para 19).

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The first issue with patent unreasonableness raises the question of how far the common law analysis set out in Vavilov can go to alter the standard of patent unreasonableness, given the comments in Khosa. BC courts have split on the issue. As I have blogged about before, in College of New Caledonia, the Court concluded that “Vavilov has not changed the law with respect to the meaning of patent unreasonableness under [the BC ATA]” (College of New Caledonia, at para 33). Meanwhile, in Guevara v Louie, the BCSC concluded that Vavilov’s comments on the reasonableness standard “also apply to a review of reasons on the standard of patent unreasonableness” because common law jurisprudence may impact what constitutes a patently unreasonable decision (Guevara v Louie, at para 48).

Generally, I am of the view that patent unreasonableness as a standard, if prescribed by the relevant legislature, must remain as distinct as possible. This is because the selection of patent unreasonableness—either as defined by the legislature explicitly or by the common law, as incorporated by legislation—is a distinct choice by the legislature that should be respect. The legislature clearly could not have intended that patent unreasonableness would be modified by Vavilov. So, as much as possible—in order to respect legislative choice—patent unreasonableness should be considered a distinct legislative standard.

Of course, this does not rule out the influence of the common law. In the BC ATA, patent unreasonableness is largely defined by grounds that resemble abuse of discretion—here, the common law cannot play much of a role, because patent unreasonableness has been defined clearly by the legislature. But in the Ontario Human Rights Code, patent unreasonableness is not defined. Here, the common law definition of patent unreasonableness—as it existed at the time of enactment—can supplement the legislative term. In such cases, the benchmark for patent unreasonableness may draw limited inspiration from Vavilov. But to say that Vavilov turns patent unreasonableness into a wholly different standard is a different matter altogether; one that, to my mind, disrespects the legislative choice to enact a more deferential standard of review. To my mind, College of New Caledonia gets this basically correct.

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If patent unreasonableness is a distinctive standard, then the question becomes: is it a constitutional standard of review on questions of law? To be sure, issues regarding the constitutionality of various standards of review are not often explored in Canadian administrative law. In Quebec, however, the constitutionality of the Court of Quebec applying deferential standards of review is an issue that will be heard by the Supreme Court of Canada soon. This indicates that the constitutionality of particular standards—especially those prescribed in legislation—might be an important issue going forward. In my view, there are two such potential constitutional issues with the patent unreasonableness standard. First, the Rule of Law—as conceived in Vavilov—could be a fetter on the legislature’s choice to prescribe a patent unreasonableness standard of review. Second, s.96 could itself found a challenge to the patent unreasonableness standard. In whole, I find this latter challenge more convincing.

First, Vavilov’s comments on the Rule of Law present a challenge to the imposition of a patent unreasonableness standard on questions of law. Recall that, in Dunsmuir, the Court (in a throwaway line, mind you) reasoned that patent unreasonableness presents rule of law issues, because it could shelter otherwise illegal decisions from review. Indeed, as noted above, the Ontario courts have taken these concerns to heart. They have read the “patent unreasonableness” standard in the Human Rights Code as merely demanding “reasonableness” review (see Intercounty Tennis Association, at para 45). In Intercounty Tennis Association, the Court relied on Vavilov’s Rule of Law comments (at para 43, saying that the legislature’s standard of review choice must be respected “within the limits imposed by the rule of law”) to reach this conclusion:

[44] As set out above, returning to an era where “patent unreasonableness” is given a meaning beyond “reasonableness” does raise rule of law concerns – namely, the fact that an irrational decision is allowed to stand because its irrationality is not “clear” or “obvious” enough.

I am sympathetic to these Rule of Law concerns. But there is a preliminary question that must first be answered: does the Rule of Law have substantive force, such that it can bind the choice of legislatures within its limits?

Of course, the Court has previously held that the Rule of Law cannot be used to attack the content of legislation (Imperial Tobacco, at para 59). But as Leonid Sirota notes, there might be valid reasons to distinguish Imperial Tobacco. And at the very least, Vavilov’s comments on the Rule of Law, particularly the comment that legislatures can specify the standard of review within the limits imposed by the Rule of Law, seem to suggest that the Rule of Law, as a principle, will set the boundaries for the standards the legislation can choose.

The other way to view the issue is that Vavilov merely spoke to the common law standard of review analysis. That is, the Rule of Law, within the common law analysis, can impact the court’s choice of a standard of review. But once the legislature legislates, the common law analysis—including the comments on the Rule of Law—cease to apply.

I must admit that, at first, I was drawn by this common law angle. But how does one square the Court’s comments, then, about the limits imposed by the Rule of Law? I can’t seem to reconcile these comments, to be frank. They seem to suggest that the Rule of Law will impose limits on the legislature’s selection of the relevant standard of review. Given that this is likely the case, it would seem to suggest that the Rule of Law does have substantive content, contrary to Imperial Tobacco.

I think a preferable interpretation, rather than relying on a potentially limitless unwritten constitutional principle, is one rooted in s.96 of the Constitution Act, 1867. That is, s.96 has developed such that the role of the superior courts in policing the boundaries of administrative action is constitutionally guaranteed, especially on questions of law: see Crevier. Patent unreasonableness, as a statutory standard, is one that impacts this supervisory function of the superior courts—it requires a court, having identified an error, to measure whether it is “obvious” enough to warrant intervention. This means that certain errors—even material ones—will be allowed to stand . In Quebec, this issue is currently being litigated with respect to the Court of Quebec and the potential requirement of “double deference’”—which has the effect of sheltering illegal decisions from review. This clearly impacts the reviewing function of the Court. In this respect, patent unreasonableness could be unconstitutional because it requires courts to simply ignore errors that otherwise arise.

In light of this conclusion, the question then arises: what do courts do with this when faced with a ptent unreasonableness standard? One could imagine two scenarios. First, one can take the Ontario court’s position, which is to say, a position rooted in constitutional avoidance: read patent unreasonableness to simply mean something else. Another option is to simply strike the legislation prescribing patent unreasonableness, either pursuant to the Rule of Law or under s.96. I think constitutional avoidance in this context is not a sound idea, because as I said earlier, patent unreasonableness can have a distinct meaning if set out in statute (like the BC ATA) and otherwise draws inspiration from the common law definition of patent unreasonableness. This takes “avoidance” too far—avoidance is typically only feasible when a term is ambiguous and there are two plausible meanings one could take of the view. But here, patent unreasonableness is, to my mind, not necessarily ambiguous—though its contours may be hazy.

In my view, we must deal with any constitutional problem faced by patent unreasonableness head on. In my view–and holding my tongue as much as possible in light of the Quebec case on deference–the patent unreasonableness standard has the potential to shelter material errors of administrative actors from judicial scrutiny. This, on an understanding of s.96, is unconstitutional.

Put differently, I think the best way to approach the patent unreasonableness standard, post-Vavilov, is to simply conclude that it is unconstitutional because it minimizes and restricts the reviewing role of the courts. I do not expect anyone to actually pick up this argument—but I think it is a fair point to make in light of that standard. Overall, though, the question of patent unreasonableness will continue to grip courts in jurisdictions where the standard is relevant. This post is designed to provide a toolbox of arguments as litigants and courts deal with this question.

The Common Good Administrative State

The Internet has been captivated by Professor Adrian Vermeule’s provocative essay in The Atlantic on so-called “common good constitutionalism” (CGC). CGC could be describes as part of a larger theory that co-blogger Leonid Sirota calls “right-wing collectivism,” which “blends support for using the power of the state to advance traditional moral values, a hostility to free markets, and nationalism.” CGC picks up the mantle in the legal realm, with Vermeule suggesting that “substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read in the majestic generalities and ambiguities of the written Constitution” should be the starting point for interpretation. These substantive principles include

…respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.

CGC is clearly distinguishable from other political and legal theories of interpretation. It does not ally itself with originalism, in that originalism is not expressly designed to promote certain substantive political aims. On the other hand, CGC does not take freedom of the individual as the dominant good in a polity, as libertarians might. Instead, CGC intends to promote substantive conservative ideals in constitutional law.

This is a rough-and-ready description of CGC, and for those who want a more in-depth description of the theory’s substantive ends, Leonid Sirota has written a post on CGC here, and others have written well-justified critiques of Vermeule’s position. My goal in writing today is to suggest some implications of CGC for administrative law and the delegation of power to administrative agencies. I do not think that a state or court that sets out to accomplish what Vermeule suggests would be able to avoid delegating power to agencies—this Vermeule seems to acknowledge. The question is whether such delegation is desirable, and whether the conservative adherents of Vermeule’s theory would themselves accept an ever-growing administrative (rather than democratic) behemoth.

I first describe what Vermeule says about the administrative state in his controversial piece and a related piece. Then I address some implications of CGC for administrative law and delegation. My view is that CGC depends–crucially–on the administrative state to effectuate its aims. But there is no guarantee that the administrative state can be wielded to achieve those goals.

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Vermeule spends the majority of his time talking about the ends associated with his CGC, and rightly so: these are controversial aims that run against orthodox opinion and established authority. However, he does devote some time to discussing how his CGC will affect the “structure and distribution of authority within government.” It is worth quoting the entirety of what Vermeule says about administrative agencies and bureaucracy; clearly, these institutions form the means to Vermeule’s ends:

As for the structure and distribution of authority within government, common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality with a view to promoting solidarity and subsidiarity. The bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule.

This is the entirety of what Vermeule says about bureaucracy in his piece, but there is a lot of meaning packed in these words. The last link in Vermeule’s comments links to another piece he wrote in which he discusses the ability of the administrative state to actively promote religion. In this piece, Vermeule suggests that “specialization” in administrative agencies is neither here nor there on religion, because “specialization is an intrinsically neutral institutional technology.” Vermeule says, on this basis:

So the administrative state, in my view, is an institutional technology that can be put to good or bad ends, and is no more intrinsically hostile to religion than is, say, the use of written rather than oral communication.

[…]

Let me distinguish two ways the administrative state could be put to beneficial use to promote religion. One is by clearing away legal and economic obstacles to religious practice, obstacles thrown up by other sorts of institutions; another is by directly and affirmatively promoting religious values.

For Vermeule, then, the picture seems to be of an administrative state actively advancing a certain discretionary agenda, perhaps unconstrained by constitutional or legal arguments that might confine that discretion, with the gargantuan task of promoting “solidarity and subsidiarity.” Unfortunately, no matter whether such a state is desirable, I do not find such a state practical in any sense of the term.

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Consider, first, the supposition that the bureaucracy would be “strong” in itself, acting under a “strong” Presidency. This comment seems to recall the unitary executive theory, under which “whatever authority the executive has must be controlled by the President.” This includes bureaucratic agencies operating under the President. These sorts of agencies can be contrasted with independent agencies, typically styled as such because their heads are removable by the President only for cause (though see Vermeule’s piece here). On the unitary executive theory, bureaucrats fall under the control of the President, exercising his constitutionally-delegated Article II authority.

At first blush, the unitary executive theory might appear to be a normatively desirable way to control bureaucrats. After all, Article II is clear that it is the President who holds the executive power, and so any exercise of that power must be controlled by the President. This theory has infiltrated the Supreme Court of the United States’ cases, particularly the so-called “Peek-a-boo” case (PCAOB v Free Enterprise Fund).

But practically, I have always been skeptical that the unitary executive theory is any more than a constitutional ideal rather than a practical, empirical fact. That is, it is somewhat of a legal fiction. The President of course cannot control every executive agent. And this is where Vermeule’s use of the administrative state as an instrument of CGC will falter. The political science and public choice literature is rife with theories of bureaucratic “drift,” under which agency members might “drift” from the statutory authorization giving them power. The same type of executive drift is possible from the perspective of the President; where preferences diverge between career staff and bureaucrats may have ideas of their own. After all, “…agencies (often have different goals than politicians or different judgments about how best to achieve those goals.” (see Jacob Gerson’s piece here). In the United States, for example, Jennifer Nou has written about civil servant disobedience, an increasingly prominent phenomenon during the Trump era. What is the Vermeulian plan for a disruptive civil service, with its own preferences, and its own agenda? In other words, do we think a strong bureaucracy will fall in line to CGC?

For example, one form of contestation might arise when a CGC President wants to promote “subsidiarity.” What incentive is there for a national administrative agency to embrace the principle of subsidiarity in the exercise of its legal functions? This seems to be a situation where there could be a classic preference divergence, where in the halls of power there is probably an incentive to arrogate more and more power to federal authorities over local authorities.

The upshot of Vermeulian CGC is that it would, I suspect, necessitate a mass amount of delegation to administrative agencies (though Vermeule does not expressly say this). Keeping in mind that Congress already has a difficult time in deciding how to monitor its delegations of power, and given that the pace and breadth of delegation seems to grow year over year, I have no faith that a CGC-based state would be able to control the mass delegation it plans. And it is worthwhile to question whether more delegation to administrative agencies is at all desirable.

These concepts are not new, and are fairly simple to understand. But they represent general rules about how the bureaucracy operates. There is no guarantee that a strong bureaucracy, as Vermeule wants it to be, will be a faithful agent for the President.

**

But let’s assume that such a unity of identity and purpose is achievable—the administrative state, under this understanding, could become a tool for CGC and its programs. But this illustrates the problem with administrative power, based on it is upon contested notions of expertise and the “science of administration”: these tools can be easily co-opted and turned against CGC. On this account, the administrative state could be a self-defeating enterprise for CGC.

It is interesting, at least to me, that Vermeule calls the administrative state a neutral “institutional technology.” This might be strictly true, but it harkens back to an era when we spoke of ideas of strictly neutral expertise, or of the administrative state’s neutral status as a collection of good-faith individuals working towards the public good. One of the notions inculcated by the administrative law functionalists of a previous generation (like Wilson, Landis, and Goodnow) was the idea that administrative technology should be kept independent from the travails of politics. On this account, the administrative state might be described as a neutral technology.

But as I have written before (and as Vermeule seems to tacitly acknowledge), there is nothing technological or neutral about the administrative state. As mentioned above, agents within the state may have their own goals. But more importantly, if delegation is the so-called “engine” of the administrative state, then the currency we are really speaking about in administrative law is power. Power is what administrative agents act on when they create rules and make decisions. Courts are primarily concerned with whether these rules and decisions fall within the scope of the enabling power, and/or whether the power exercised by delegated officials is justified. Power, then, is given by the legislature to the delegated actor, and it is that power we should be concerned with.

Vermeule accepts that this power can be used to advance religious goals, or perhaps goals centred around the constitutional aims of CGC. But it is just as likely that this power can be co-opted by bureaucrats, courts, or politicians or judges of a different stripe, to advance an exact opposite version of the “common good.” As I wrote before:

Progressives have spent more than a generation asking courts to stay out of the business of administration, especially because of their supposed conservative and market-based political philosophy. This largely worked. The administrative state is now entrenched in many common law countries. But administrative power knows no ideology. Its only ideology is power, in a raw sense. That power—being judicial, legislative, and executive power merged—can be wielded by those with anti-progressive goals, or more dangerously, by those with authoritarian tendencies who seek to “throw things into confusion that he may ride the storm and direct the whirlwind.”

The number of times this has happened in administrative law history are too many to count: but consider the use of administrative agencies by FDR to advance the New Deal, and then the capture of these agencies some 50 years later by President Reagan to advance his deregulatory agenda. Recall that Chevron deference was introduced during the Reagan era, and served to assist the Reagan administration’s environmental agenda. The administrative state’s allyship with power makes it a dangerous tool that can be used for partisan or political ends that CGCers would find abhorrent. 

This is not, in itself, a bad thing. In fact, it subjects the administrative state—to the extent permissible with preference divergence—to the democratic accountability of elected officials. But let’s not pretend that the administrative state can be a neutral technology that always and everywhere can be transformed to CGC ends.

**

If the administrative state is fundamentally about power, then we should be careful about its exercise. This is the traditional way we view power in constitutional law and administrative law. For example, judicial review in Canada is concerned with surveillance of lower decision-makers in order to ensure precise conformity to their enabling statutes (see Wall, at para 13; Vavilov, at paras 108-110). The same is true in the United States. CGC, then, turns the typical discussion of judicial review of administrative action on its head. Instead of discussing how best to control administrative decision-makers through doctrine, CGC seems to harken back to an old era of administrative law theory, where there is an implicit trust in administrative decision-makers to simply do the right thing. For the reasons I’ve noted above, it is unlikely that this will ever be the case. But as co-blogger Leonid Sirota points out, there is a downfall to assuming that power can simply be trusted to a massive administrative state, advancing the “common good” (whatever that turns out to be defined as):

From this recognition there should proceed, as I repeatedly insisted my post on the corrupting effects of power, to a further acknowledgement of the importance not just of moral but also of institutional and legal constraints on power. We must continue to work on what Jeremy Waldron describes as “Enlightenment constitutionalism” ― the project of structuring government so as to separate out and limit the power of those whom Professor Vermeule calls “the rulers” and empower citizens. This project recognizes the need for power but also its temptations and evils, and the fallibility of human beings in the face of these temptations and evils. As James Madison, in particular, reminds us, we should strive to so design our institutions as to make these human weaknesses work for us ― but we can only do so if we are acutely aware of them.

Much administrative law is best conceived in this light. We are talking, after all, about the law which governs administrators—the judicial and legal controls that we apply to ensure the legality of state power. The worry is even greater in administrative law contexts, because Parliament can easily escape the strictures of judicial control by delegating power away. Judicial review, on this front, is concerned with managing the risks associated with delegated power, and the discussion should be the best doctrine to effectuate that concern. But CGC seems to unleash the administrative state, putting trust in the bureaucracy to achieve its aims. This, to my mind, is a classic mistake.

**

Of course, I cannot address all of the implications of CGC in this (relatively) short post. I have tried to focus on a few implications for the world of administrative law. The metes and bounds of CGC will, hopefully, be fleshed out in further academic debate and discussion. For now, though, I am skeptical that the mass delegation of power that CGC will likely entail to the administrative state will be worth the risks associated with that delegation.

 

 

 

Common Good and Evil

Removing constitutional obstacles to power in the name of the common good is a dangerous, delusional idea

Last month, I wrote about what I termed “right-wing collectivism“, an emerging political doctrine that blends support for using the power of the state to advance traditional moral values, a hostility to free markets, and nationalism. Two texts published last week have prompted me to return to this subject: Adrian Vermeule’s instantly-notorious essay in The Atlantic urging a “robust, substantively conservative approach to constitutional law and interpretation”, and Thomas Falcone’s guest post on this blog defending right-wing collectivism against my criticisms. Between them, they show this ideology’s incipient authoritarianism and incompatibility with any genuine belief in human dignity, freedom, and the Rule of Law.

Before proceeding further, I should note that one reaction people have had to Professor Vermeule’s argument has been to wonder whether he is simply trolling everyone. Sarah Isgur made this case quite forcefully on the Advisory Opinions podcast, for instance. And certainly his “response” to criticism of his article, over at Mirror of Justice, is trollish. But, as David French argued on Advisory Opinions, Professor Vermeule’s argument reflects a real, if eccentric, current of thought on the political right. Randy Barnett, in his reply to Professor Vermeule, also worries about “a disturbance in the originalist force by a few, mostly younger, socially conservative scholars and activists … disappointed in the results they are getting from a ‘conservative’ judiciary” in the United States. I too will treat the arguments of Professor Vermeule and Mr. Falcone seriously; all the more so since the rhetoric of combating epidemics of various ills, which they both employ, is, as Anne Appelbaum points out, already being used by the Hungarian dictatorship ― much admired, as Damon Linker has observed, on among American right-wing collectivists.


Professor Vermeule’s argument is, on its face, about constitutional interpretation. But he makes it clear from the outset that constitutional doctrine is, for him, only a tool in the service of politics. Addressing conservatives, he argues that they should give up on originalism, which many have supported in recent decades, because it has become “an obstacle” to the promotion of “strong rule in the interest of attaining the common good”. Mr. Falcone too defends, if less articulately, an activist government acting, supposedly, in the service of “the highest good”.

What, then, is the “common good”, the banner under which Professor Vermeule wants to make a stand against and defeat what he says as “the relentless expansion of individualistic autonomy”? Generally speaking, it consists in

respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.

In terms of substantive policies, the common good involves “cop[ing] with large-scale crises of public health and well-being—reading ‘health’ in many senses, not only literal and physical but also metaphorical and social”. It means “protect[ing] the vulnerable from the ravages of pandemics, natural disasters, and climate change, and from the underlying structures of corporate power that contribute to these events”, “from the vagaries and injustices of market forces, from employers who would exploit them as atomized individuals, and from corporate exploitation and destruction of the natural environment”. It also means and “enforcing duties of community and solidarity in the use and distribution of resources”, and empowering “[u]nions, guilds and crafts, cities and localities, … as will the traditional family”. 

Mr. Falcone too suggests that “when we evaluate public policy proposals we adjudicate their desirability against whether or not they help or harm our shared social goods, like the family”. Like Professor Vermeule, he abhors the idea that the state ought to be impartial as between competing conceptions of the good life, illustrating it with the example of a “state … ‘neutral’ as to whether people choose have [sic] jobs or sit around smoking cannabis”, which he claims “would be nonsensical to the average person on the street”.

Professor Vermeule outlines a fairly detailed agenda for constitutional law, put in the service of the common good, so understood. Its “main aim” would be “certainly not to maximize individual autonomy or to minimize the abuse of power” (an idea that Professor Vermeule declares “incoherent”). Mr. Falcone does not provide detailed prescriptions for the law, but he similarly rails against the idea, which he attributes to me (only half-correctly) “that power itself is an evil and thus there should be no power”. Professor Vermeule argues that, rather than limiting power, constitutional law must “ensure that the ruler has the power needed to rule well”. So too Mr. Falcone is adamant that “power is real and always will be”. The question is who wields it, and against whom.

Indeed, the ruler needs to be able to exercise this power

for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.

To achieve this, constitutional language can be repurposed and read so as to suit the new agenda. More importantly, constitutional doctrine should be built not on textual provisions, but on insights into “the general structure of the constitutional order and in the nature and purposes of government”. And so, much of the existing constitutional jurisprudence ― in areas such as “free speech, abortion, sexual liberties, and related matters”, as well as “property rights and economic rights” ― will be “vulnerable”, “have to go”, “fall under the ax”, or indeed “be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after”. (This latter sentence is reserved for “[t]he claim, from the notorious joint opinion in Planned Parenthood v Casey, that each individual may ‘define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life'”.)

This will enable government “to protect the public’s health and well-being … even when doing so requires overriding the selfish claims of individuals to private ‘rights'”.  Mr. Falcone echoes Professor Vermeule, denouncing what he describes as libertarians’ ” religious devotion of individual preference maximization and” desire to “ruthlessly supress [sic] any suggestion that time, tradition, community, or common sense may occasionally contain more wisdom than the proclivities of any one person”.


As noted at the outset, Professor Vermeule and Mr. Falcone are defending authoritarianism against the claims of freedom and the Rule of Law. They think that the government can identify moral objectives that deserve to be pursued, and the citizens ― or rather the subjects ― have no moral claim against conscription into this pursuit. At best, those who disagree with the objectives or with being made to serve them will come to see the error of their ways, as Professor Vermeule hopes. But if not they will simply be silenced. After all, politics is nothing more than a power struggle; to limit power is a fool’s hope ― the wise man knows that he must put himself into a position to exercise it. These disciples of Saruman are wrong at every step in their reasoning.

How are the governments to decide on their definitions of the common good, on the morality they will legislate? Professor Vermeule is coy about this ― in his essay in The Atlantic. But, as Professor Barnett notes, from his other writings, we know that he makes “an argument for the temporal power of the state to be subordinated to the spiritual power of the [Catholic] Church” (emphasis Professor Barnett’s). Mr. Falcone’s position, as best I can tell, is that moral the appropriate moral values are already widely shared. Now, these two are obviously at odds with one another: it is quite clear that, to the extent that Americans or Canadians share values, these values are certainly not those of the Vatican. This makes Professor Vermeule’s position all the more remarkable ― his understanding of the common good is rejected by an overwhelming majority of the people whose common good it purports to be. It can only be forced on them by a ruthless dictatorship. But Mr. Falcone’s position is no more attractive. If Canadians already agree on the importance of particular values, what’s stopping them from living accordingly? Why do they need to be coerced by the government into acting in accordance with what are supposedly their beliefs? If people already prefer working to “sit[ting] around smoking cannabis” ― as I agree with Mr. Falcone most probably do ―, then why does the state need to subsidize or force them to do so?

Of course, as Jonah Goldberg points out in a recent episode of his The Remnant podcast, even when people largely agree on values stated in the abstract, as they do on the proverbial motherhood and apple pie, it does not follow that they agree on any particular policies that purport to implement them. To value work may entail the sort of wage-support policies to which Mr. Falcone refers or it may, on the contrary, suggest repealing the minimum wage to avoid pricing people out of the labour market. Similarly, valuing families may well push us towards policies of which right-wing collectivists would disapprove, be they marriage equality that helps people form families in the first place, free trade that leaves more money in families’ pockets, or school choice ― even when it is exercised in favour of schools that transmit decidedly non-conservative values.

But, beyond such policy disagreements, important though they are, understandings of both the common good and of personal morality and the nature of the good life are subject to endless debate. Again, the only way to avoid this is to simply prevent the expression of all but the officially approved views, as Professor Vermeule recognizes on at least some points. If the debate is allowed to continue but the majority is empowered to impose its views on the minority, then, as Professor Barnett explains “[i]n the legislature, might will make right”. And as the price of political defeat is nothing short of one’s annihilation as a morally autonomous individual, prospective losers are unlikely to accept this outcome. As Professor Barnett further writes: “what happens to social peace as the government starts incarcerating the dissenting minority for failing to adhere to their moral duties? Religious war, anyone?”

This is why state neutrality as between the competing conceptions of the good life is both morally right and good policy. It allows people of divergent views to remain in a political community with one another, combining their efforts for those limited common purposes on which they agree, such as self-defence and the enforcement of a limited subset of universal rights, notably life, liberty, and property through of framework of stable and general laws. This framework allows individuals and freely-formed associations ― although it should certainly not allow coercive “[u]nions [and] guilds” ― to pursue their moral aims, including charitable and benevolent ones, with minimal interference on the part of the state. A liberal society is not one of “atomized” individuals with no ties to one another; but the ties that exist in it are a web spun by individuals themselves, rather than a chain forged by the state.

But is neutrality simply a delusion, as Professor Vermeule and Mr. Falcone both contend? In a sense, of course, they have a point. Not all law is based in morality ― as Lon Fuller explained, there is a very real element of fiat in law (he spoke of the common law, but the same goes for statute), in addition to reason or morality. But, to be sure, the basic norms of criminal law, and arguably contract, tort, and property law too, have moral foundations ― notably those universal and widely agreed-upon rights. Yet there is a fundamental difference between this sort of background law and legislation enacted for “the promotion of morality”, as Professor Vermeule puts it. The former, even if it has moral underpinnings, leaves individuals almost entirely free to choose the purposes to which they want to devote their lives and largely, although not fully, free to choose the means by which they pursue their purposes. The latter doesn’t ― its whole point is to shape and limit both the ends and the means available to individuals.

A related point is that neutrality as between conceptions of the good life is not a cover for the enforcement of a progressive moral orthodoxy as Mr. Falcone, in particular, claims, with his bizarre insistence that libertarians “will ruthlessly suppress” conservative ideas. (I would have thought that, if not my outspoken advocacy for freedom of expression and conscience ― including for the benefit of conservatives whom I personally find bigoted, like the Trinity Western University ― then at least the fact that Mr. Falcone is able to publish such a claim on the blog that I founded should be proof enough that this just isn’t so.) A neutral state knows and accepts that not all individuals, families, and communities will orient their lives towards self-actualization, let alone self-indulgence. Some will devote themselves to religion or to community; some may reject the value of autonomy and extol obedience. The neutral state faces some difficult questions at the margins ― notably about the limits, if any, to the capacity of such individuals, families, and communities to shape and control the lives of their children. But there is nothing paradoxical about, at least, a very strong presumption that adults get to shape their lives in ways they choose, regardless of official approval. Libertarianism is a philosophy of politics and government, not an ethical programme ― and it’s a philosophy of politics whose point is to reject the imposition of ethical programmes by the government.

Perhaps the belief that a libertarian or classically liberal neutral state will in fact impose its own values and ideology on dissenters is due to a confusion between liberalism and a progressivism that has sometimes borrowed its name but consistently rejected its ideals. This progressivism, which would impose its beliefs ― originally technocratic with an egalitarian or at least populist flavouring, more recently egalitarian with a technocratic or at least pseudoscientific streak ― is just another version of collectivism. Indeed, the right-wing collectivism promoted by Professor Vermeule and Mr. Falcone, with its deep distrust of free markets (whether in goods, services, labour, or capital) and, apparently, a rather Marxist belief in “the primacy of production over consumption”, to use Mr. Falcone’s words, is not so different from its left-wing cousin.

But the other apparent explanation is that ― once again similarly to left-wing collectivists, at least those of the Leninist persuasion ― right-wing collectivists have come to believe that “who, whom?” is the central question of politics. That is to say, they believe that politics is a race to seize power and use it to silence or eliminate opponents. If you don’t do it, then someone else will do it to you. (This strikes me, if I may say so despite not being Christian, as a rather odd view for people who supposedly believe in turning the other cheek to embrace, but what do I know?) Hence their insistence that limiting power is an absurd or pernicious idea, an insistence whose vehemence reminds me Bulgakov’s Pilate, hysterically yelling, in response to Yeshua’s statement that all power is violence and will one day vanish, that “[t]here never has been, is not, and never will be any power in this world greater or better for people than the power of the emperor Tiberius!” Hence also their rejection of or at least desire to severely curtail constitutional rights; hence their attacks even on civility in argument.

To my mind, this is a wrong and pernicious ― indeed, as Mr. Goldberg suggested, a borderline evil ― way of looking at politics. This is partly because no one is entitled to be the “who” in Lenin’s question, and partly on the prudential grounds summarized by Professor Barnett. But this is also because, as longtime readers will recall me insisting in a series of posts, power corrupts. Power is addictive, and character can only slow down, but not prevent the poisoning of a person’s heart by its exercise; power breeds fear and, as Yeshua said, violence; it also begets lies; it encourages people to cut moral corners, not asking themselves difficult questions; and it apparently damages the very brains of those unfortunate enough to exercise it. It may be that Yeshua was wrong and Pilate right, and that “the kingdom of truth and justice” where power is not needed “will never come”. But that should not stop us from acknowledging that power is an evil, if perhaps an unavoidable and even necessary one, and from recognizing that power is to be distrusted, not celebrated.

From this recognition there should proceed, as I repeatedly insisted in my posts on the corrupting effects of power, a further acknowledgement of the importance not just of moral but also of institutional and legal constraints on power. We must continue to work on what Jeremy Waldron describes as “Enlightenment constitutionalism” ― the project of structuring government so as to separate out and limit the power of those whom Professor Vermeule calls “the rulers” and empower citizens. This project recognizes the need for power but also its temptations and evils, and the fallibility of human beings in the face of these temptations and evils. As James Madison, in particular, reminds us, we should strive to so design our institutions as to make these human weaknesses work for us ― but we can only do so if we are acutely aware of them.

This project of Enlightenment constiutionalism includes, as I have argued in my comment on Professor Waldron’s article, entrenched and judicially enforceable constitutions, with their rules on federal division of powers and on individual rights. More specifically, I would argue that it must include originalism, because originalism gives such constitutions real bite ― it creates at least the possibility, although not the certainty, that they will be enforced consistently, rather than according to the subjective and mutable views of the judges who happen to be entrusted with enforcement from time to time. The alternative, “living constitutionalist” approach, which authorizes judges to re-write the constitution does not so much limit power as transfer it to the judiciary. While this may produce results that align with a liberal theory of good outcomes, this is a failure of the power-limiting Enlightenment constitutionalism project. Thus, contrary to Professor Vermeule’s claim, originalism isn’t just a rhetorical device or a rallying banner for legal conservatives, but a legal technique which, as part of the broader toolkit of the Rule of Law, all those who rightly want power to be constrained, be they conservatives, liberals, or social-democrats, should embrace.


Right-wing collectivism ― even when it tries to make itself palatable by adopting the rhetoric of the “common good” ― is an ideology of almost unfathomable hubris. Its proponents imagine themselves to be possessed of great truths and entitled to impose these truths, at gunpoint, on those who do not agree with them. They imagine that the lessons of history ― about the bitter strife that any such attempts engender, about the misery that their quasi-socialist policies always produce ― are not applicable to them. They imagine, above all, that they are immune to the corrupting effects of power. They wrong, indeed delusional. In its embrace of unfettered power, above all, their view of the common good is a recipe for untold evil.

None of that tells us much about how we, individually and within our families and freely chosen associations and networks, should live our lives. To repeat, libertarianism or liberalism are political philosophies, not personal ethics. In a very real sense, political philosophy is of secondary importance; getting it right can do no more than leave us free to get on with the stuff that really matters. But, as Mr. Goldberg argues, it is very important not to confuse these two realms. The government cannot love us (unless, of course, it is the government of Oceania). It cannot provide us with Dworkinian “concern and respect”. Right-wing collectivists are dangerously wrong to pretend otherwise.

Can We Be Friends?: A Conservative Reply to Leonid Sirota’s “Refusionism”

This post is written by Thomas Falcone

I was surprised, if a little taken aback, by Leonid Sirota’s recent declaration on Double Aspect that he is opposed to co-operation with conservatives whom he deems insufficiently committed to a rigid Hayekian philosophy. The reason for my surprise lay not in Sirota’s ideology laid bare – he is commendably transparent about his public philosophy – but more to the creeping suspicion I had that I may have played a small part in inspiring his writing.

Sirota mentions “conversations” he engaged in at the recent Runnymede Society Law and Freedom Conference in Toronto as prompting his exposition of the reason why collaboration with conservatives is indefensible. Now, Sirota is a bit of a rock star at any Runnymede Society event – and rightfully so. His contributions to Canadian jurisprudential thought surely vault him into that vogue category of “thought leader.” I myself have plastered Double Aspect articles penned by him onto slides I’ve used in graduate seminars. Sirota’s leading ideas on originalism in a Canada are extremely impressive, and (as I have told him myself!) I am mostly in firm agreement with his opinions on the administrative state.

But I am compelled to respond to his call for libertarians to reject “refusionism”, which is to say his belief that we cannot be friends, let alone political allies. Perhaps he is right.


It is unfortunate that in Sirota’s attempt to describe what he calls “right-wing collectivism” he doesn’t bother to engage with any of the thinkers he finds so frightening. To be fair, however, the very nature of conservatism makes it difficult to attribute unifying policies or ideas that form a singular coherence. Oakeshott’s old adage that conservatism “is to prefer the familiar to the unknown, to prefer the tried to the untried” is helpful only insofar as it helps to explain that what a conservatism will stand for, or against, or agree to over time and after collective consideration, will vary in different places and amongst different peoples. Roger Scuton’s refrain that the task of a conservative is to assure people that their prejudices (properly understood as a person’s gut feeling) are justified is thus perhaps more helpful than Oakeshott’s old formulation.

In a Canadian context, Ben Woodfinden’s recent long essay in C2C Journal on Red Toryism is surely the closest thing we have to a contemporary “manifesto” of the sort of reform conservatism loosely associated with the broader movement Sirota wants to pre-emptively divorce himself from. But Sirota is right that conservatives ought properly to understand the goal of politics as being attached to the promotion of the highest good. This isn’t nearly as scary as he makes it out to be.

Take the institution of private property, for instance. Conservatives rightly commit themselves to the steadfast protection of this institution. But why is private property so important? Surely it cannot be a sacrosanct institution in-and-of-itself, despite idolatrous libertarian suggestions that the primacy of private property will result in an almost supernatural “spontaneous” right ordering of society. We can find a hint of why conservatism is associated with this institution in Scruton’s invaluable The Meaning of Conservatism:

“Home is the place where private property accumulates, and so overreaches itself, becoming transformed into something shared. There is no contract of distribution: sharing is simply the essence of family life. Here everything important is ‘ours’. Private property is added to, and reinforces, the primary social relation. It is for some such reason that conservatives have seen the family and private property as institutions which stand or fall together.”

Sirota’s biblical pronouncements of Hayekian “warnings” to the contrary, I would submit rather confidently that the vast majority of Canadians – and surely universally conservatives! – would agree on a general scale that the family is an immutable social good, and ought to be defended as the primary organizing unit of our society. The rather modest suggestion that I would posit to conservatives is that when we evaluate public policy proposals we adjudicate their desirability against whether or not they help or harm our shared social goods, like the family. Devin Drover has proposed publicly-funded therapy for families to combat the mental health crisis plaguing our society. US Senator Josh Hawley has proposed cash subsidies to families as emergency relief in response to the Chinese coronavirus pandemic.

Surely another commonly held value amongst Canadians is that it is better to work than to be idle. Having a job ties us to our community, provides us with income, and fills us with a sense of purpose. The notion that the state ought to be “neutral” as to whether people choose have jobs or sit around smoking cannabis would be nonsensical to the average person on the street. But that is precisely the Hayekian proposition Sirota suggests is “the philosophically and morally right position”, whereby individuals are the sole arbiters of their own ends. It is also a position completely alien to a conservative to whom work is fundamental good.

Recognition of the importance of work – and, indeed, the primacy of production over consumption (another value Sirota rallies against in his piece) – is central to Oren Cass’ The Once and Future Worker. And yet Cass’ proposed policy response to our society’s moral devaluation of work is, characteristic for a conservative, quite modest. He proposes a direct wage subsidy to not only make work more monetarily valuable but also signal the state’s – and thus our society’s – value of work. From an excerpt of Cass’ book in The American Interest:

“The subsidy would be calculated relative to a target wage of, say, $15 per hour and make up half the difference—so someone earning a market wage of $9 per hour would receive an additional $3 per hour. Such a subsidy would have two major effects: first, a substantial raise for low-wage workers, making each hour worked more valuable and yielding more take-home pay; second, encouragement for less-skilled workers to take that initial step into the workforce and for employers to offer such jobs.”

My point here is not to provide a laundry list of bold policy ideas that combat the scourges of family decline, widespread opioid misuse, loneliness and social isolation, and widespread disengagement of young men from the workforce. My point, rather, is to suggest that these are good and fundamentally conservative ideas. They are also not the stuff of totalitarian nightmares as Sirota will have us believe.


Finally, I feel compelled to address Sirota’s concluding appeal to the Book of Hayek. Here he suggests that power itself is an evil and thus there should be no power. This is untenable and flies in the face of our contemporary political reality. Harvard law professor Adrian Vermuele has best expounded on the internal contradictions at the core of Sirota’s philosophy by coining the phrase “the liturgy of liberalism.” How is it that liberalism, supposedly so profoundly committed to principles of freedom and liberty, can so quickly turn to repress any intellectual heterodoxy? Vermuele’s work is profound and complex, but the basic problem is that a political philosophy underpinned by nothing more than the idea of “freedom” will forever look for new oppressions to dismantle.

And herein lies the crux of my departure with Sirota: while he suggests conservatism is the flip-side to the woke-ism phenomenon, it is in fact libertarianism that is a not-so-distant cousin of SJWism. Both are committed to a religious devotion of individual preference maximization and will ruthlessly supress any suggestion that time, tradition, community, or common sense may occasionally contain more wisdom than the proclivities of any one person. Power is real and always will be – and as US Attorney General Bill Barr has noted, it is currently being deployed by left-leaning liberals against conservatives. I doubt libertarians will be spared.

This all bodes poorly, perhaps, for the future of a long-term political partnership with Sirota. But it need not foreshadow the demise of any would-be friendship. To the contrary, I am confident that right-leaning politics would benefit mightily from a continued dialogue around these difficult issues – especially in these difficult times. He is also, as I mentioned, a brilliant legal thinker. The reality is also that I know libertarians in 2020 are unlikely to try to “cancel” or “deplatform” me and I would never utilize such tactics against a libertarian. The same cannot be said for progressives. This may be a thin basis for continued political co-operation but the stakes are too high to let our disagreements overwhelm us.

 

Thomas Falcone is an LLM candidate at the University of British Columbia Peter A. Allard School of Law. He holds a BA in philosophy and political science, an MA in political science, and an LLB from the University of London. He is co-president of the UBC Runnymede Society chapter. You can follow him on Twitter @thomas_falcone.

Unconstitutional and Unconstitutional

Why delegating plenary taxing powers to the executive is wrong as a matter of constitutional principle and constitutional law

The government’s fortunately short-lived proposal to arrogate to itself the power to make regulations “that have the effect of repealing or imposing a tax, decreasing or increasing a rate or an amount of tax or otherwise changing the incidence of tax” generated a flurry of discussion about aspects of the constitution that are both fundamental and obscure. The most impressive contribution to this conversation is that of co-blogger Mark Mancini. Mark argues that, while a sweeping delegation of the power to tax to the executive is bad policy, it is not unconstitutional. Specifically, he addresses two arguments about it constitutionality: one based on section 53 of the Constitution Act, 1867, and one based on the unwritten principle of democracy.

For my part, I am not convinced by what Mark says about section 53, and I think that the principle of democracy is not the most important one to think about here. In my view, the Supreme Court’s interpretation of section 53 does not support ― and indeed give reason to challenge ― a delegation as sweeping as that which was apparently contemplated. The principle of responsible government ― not just democracy writ large ― also calls it into question. Before getting to these arguments about constitutional law, though, I think it’s important to emphasize that a plenary delegation of taxing powers is unconstitutional in a somewhat different sense.


Government action can be meaningfully said to be unconstitutional even if it contradicts no rule of binding constitutional law that could be enforced by the courts. This is most obviously so in the case of a breach of constitutional convention (assuming, that is, that the orthodox distinction between convention and law still holds), but arguably even in the absence of a violation of a precise rule, if government acts contrary to fundamental principle. It is in this sense that the governments (and Parliaments) of the United Kingdom and of New Zealand can be said to act unconstitutionally. The constitutions of these polities are not entrenched and judicially enforceable, but they are no less real, and susceptible of being contravened in a way that calls for denunciation in constitutional terms.

One of the fundamental principles of the Westminster constitutions since at least 1688 is that of Parliamentary control over taxation. Mark refers to the post-Glorious Revolution constitutional settlement by saying that “if the Bill of Rights of 1688 meant anything, it meant that Parliament came into its own as the controller of the executive; it became a sovereign body” ― but that’s not quite right. The references to Parliamentary control of the executive in the Bill of Rights are more precise than a general assertion of sovereignty. They do not focus on Parliament’s power to make laws ― that was a given, and the Crown’s inability to make new law was recognized in the Case of Proclamations 80 years earlier. Nor do they involve a general control of the executive ― that would only come with responsible government, which developed over a long period of time starting decades after the Glorious Revolution and not taking a final form until the 1830s.

What the Bill of Rights 1688 did do was to impose firm prohibitions on the Crown “suspending laws”, “dispensing with laws”, and “levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted”. Now, “consent of Parliament” overrides these restrictions, as it obviously does that on the Crown’s law-making power. Acting “by and with the advice and consent” of Parliament, the Crown can make and change law, and it can impose and abolish taxes. The question, though, is whether this consent can be given prospectively, in advance, and in the form in effect of a blank cheque. After all, granting the Crown, acting on the advice of its Privy Council (and, in practice, of the cabinet) rather than of Parliament, the power of “repealing or imposing a tax, decreasing or increasing a rate or an amount of tax” amounts to nothing else.

In my view, the principle behind article 4 of the Bill of Rights ― the one dealing with “levying money without grant of Parliament” ― requires specific authorization on an ongoing basis. Parliament sought, and succeeded in gaining the ability, to actually keep tabs on the executive’s finances. It did not do so to simply let the executive run itself as if 1688 hadn’t happened. “The Crown can imposes whatever taxes and imposts it pleaseth, for ever and ever” would not be consistent with the purpose of article 4, and the contrary idea wouldn’t have occurred to anyone until the development of responsible government, and indeed well after. But even now, it is not a sound idea. Parliamentary scrutiny of taxation must be constant to be effective. It cannot just happen once in a blue moon, and the vagaries of question time are not a sufficient substitute for accountability mechanisms focused on taxation and spending.

The proposed delegation of taxing power to the executive was not, of course, for ever and ever. But it would have lasted almost half the duration of a normal Parliament, and longer than hung Parliaments typically survive in Canada. And it was, of course, quite uncabined ― the executive really would have been able to do anything it pleased. In my view, it is absolutely contrary to the principle and spirit of article 4 of the Bill of rights 1688, and so not merely stupid, but actually unconstitutional, at least in the sense of being inconsistent with the constitution’s underlying commitments. Whether the courts would have been able to do anything about this is a separate question, and a moot one at this point.


Despite its mootness, I turn now to the question of the constitutional legality of the government’s proposal. As noted above, the key constitutional provision here is section 53 of the Constitution Act, 1867, which provides that “Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons”. The question is whether taxes imposed pursuant to delegation, and one as broad as the one described above, meet this requirement.

It may be worth pointing out that the exact status of section 53 is somewhat mysterious. The Supreme Court has long held, as Justice Iacobucci put it in Ontario English Catholic Teachers’ Assn v Ontario (Attorney General), 2001 SCC 15, [2001] 1 SCR 470, that “[s]ections 53 and 54″ ― of which more shortly ― can be amended by Parliament”. [68] Yet Justice Iacobucci went on to say that “there is a constitutional guarantee of ‘no taxation without representation'” ― for which section 53 is (rightly) taken to stand ― “in Canada”. [70] I’m not sure how these two statements are to be reconciled. In any event, the position seems to be that, at least so long as section 53 has not in fact been amended, failure to comply with it will result in the invalidity of non-compliant legislation, rather than being taken as (pro tanto) implied repeal. 

So would the proposed delegation comport with section 53? In OECTA, Justice Iacobucci offered the following general principle for assessing delegations of the power to tax:

The delegation of the imposition of a tax is constitutional if express and unambiguous language is used in making the delegation. The animating principle is that only the legislature can impose a new tax ab initio. But if the legislature expressly and clearly authorizes the imposition of a tax by a delegated body or individual, then the requirements of the principle of “no taxation without representation” will be met. In such a situation, the delegated authority is not being used to impose a completely new tax, but only to impose a tax that has been approved by the legislature. [74]

Justice Iacobucci then went on to explain why the delegation at issue ― a grant of power to a Minister to set the rates of a school tax ― was acceptable:

The [impugned statute] … expressly authorizes the Minister of Finance to prescribe the tax rates for school purposes.  When the Minister sets the applicable rates, a tax is not imposed ab initio, but is imposed pursuant to a specific legislative grant of authority.  Furthermore, the delegation of the setting of the rate takes place within a detailed statutory framework, setting out the structure of the tax, the tax base, and the principles for its imposition. [75]

There is, then, a crucial distinction between the imposition of taxes ab initio and the imposition of “a tax that has been approved by the legislature”. Justice Iacobucci’s discussion of the case before him at least strongly suggests that, to count as “approved by the legislature”, the tax ― at least its purpose, but probably also (some of?) its “structure”, “tax base”, and “principles for its imposition” ― has to be described with some specificity.

The proposed delegation of a blanket authority to impose new taxes and to “chang[e] the incidence of tax” is too vague to meet these requirements. It contemplates that taxes might be created, but does not explain to what end they must be levied or on what principles. It amounts to an authorization for the executive to create taxes ab initio ― but OECTA suggests that such an authorization cannot be given, at least, without repealing section 53 of the Constitution Act 1867, and perhaps at all.

Mark writes that, historically, the Supreme Court “has permitted extremely broad delegations of power—especially in crisis situations—so long as the executive remains responsible to Parliament for the exercise of these extraordinary powers”. He recognizes that the leading cases on this, In re Gray, (1918) 57 SCR 150, and Re: Chemicals, [1943] SCR 1 were not decided in the context of taxation, but argues that the principle they stand for, which is that (to quote Mark) “so long as Parliament retains control over the delegated power—so long as it does not ‘abdicate’ its power (Gray, at 157) there is no legal concern”, is applicable.

I’m not so sure. Taxation really is different from other types of legislation. This is where section 54 of the Constitution Act, 1867 comes in. It provides that

It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.

I feel on shaky ground here, and would welcome correction, but I wonder if the consequence of this provision is not that unlike with normal legislation, where ― in theory, since in practice the executive is actually driving the legislative agenda ― Parliament is indeed free to resume control, when it comes to tax matters, delegation to the executive is a one way street. Once the executive gets its hands on a broad delegated authority to tax, it need not to “recommend” any legislation undercutting this authority by levying taxes not created by regulation to the House of Commons, and Parliament is then handcuffed for as long as the delegation runs. (This also makes delegation of taxing authority to the executive very different from delegation to, municipalities ― municipalities aren’t able to control the enactment of new tax laws by provincial legislatures.)

Let me finally address the other point Mark makes, about unwritten constitutional principles. As explained here not long ago, I am much less skeptical about the use of such principles in judicial decisions than many of my fellow scholars, including Mark. That said, I agree that the principle of democracy is vague ― democracy can take any number of different forms, and we must be careful to implement the specific form of democracy provided for by the Canadian constitution, and not some idealized version of what that principle might mean.

Yet here the relevant principle is not democracy generally, but the particular form of democracy that is at the heart of the Canadian constitutional order: responsible government. In turn, money votes, of which votes on tax bills are one (but not the only) sort are at the heart of responsible government. Winning such votes is how a ministry demonstrates the continued confidence of the House of Commons. Delegation of taxation powers to the executive allows it to avoid these votes, and so arguably undermines, although admittedly it does not completely subvert, this fundamental principle.

What, if anything, the courts might do about this is not an easy question. Courts are sometimes ― although not always, as I have argued in the post linked to above ― reluctant to enforce constitutional principles against legislation. But two precedents are worth thinking about. First, there is Justice Beetz’s warning, in Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2, that there may be limits to a provincial legislature’s ― or Parliament’s ― ability to “do anything it pleases with the principle of responsible government itself”. (46) Justice Beetz is evasive as to the extent and source of these limits, but he does suggest that the legislatures (and Parliament) may lack “power to bring about a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system”. (47) And second, there is the much more recent Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, where the Supreme Court found that an entrenched “constitutional architecture” limited the ability of Parliament to bring about constitutional change by ordinary legislation. If I am right that this architecture consists of constitutional conventions, it may well protect the principle of responsible government against fundamental interference, as Justice Beetz suggested.


In short, the delegation of plenary taxing authority to the executive is doubly unconstitutional. It is unconstitutional, first, in the British sense of the word ― as contrary to the constitution’s logic and fundamental commitments. It is unconstitutional, second, in the Canadian sense of the word, as contrary to an express provision of the constitution, and arguably also to its legal underlying principles.

It was not merely stupid, or a bad policy. It was an attempt at a serious breach of the basic rules of our political order. As Keith Whittington has recently written over at the Volokh conspiracy, “[t]he normal logic of political rent-seeking and incompetence does not magically disappear in a crisis, though we might have to be more tolerant of such political failings in order to deal with a fast-moving situation”. The now-defunct proposal was not merely rent-seeking, but a power-grab, perhaps an unprecedented one. The present moment may mean that punishment for it must be delayed, but it ought to count against its perpetrators.