Can the Administrative Process Achieve Social Justice?

Can administrative law achieve any ideal of social justice? The answer is perhaps yes. But there is nothing built-in the system to encourage this result. For that reason, deference to administrators because of the political aims they might pursue is a week reed on which to rest a more general case for deference.

This much was made clear to me when I read a recent piece by perhaps the most revered administrative law scholar in Canadian history, John Willis. Celebrated in the academy, Willis is best known for his piece on administrative law functionalism (John Willis, “Three Approaches to Administrative Law: The Judicial, The Conceptual, and the Functional” (1935) 1 U.T.L.J. 53), laying out his view of administrative law as a body of law that should charitable to the aims and expertise of administrators—fundamentally, in their good-will as holders of the public trust, and in their ability to deliver impartial, efficient justice relative to the courts. The idea was that courts should defer to administrators for this reason. Willis was at heart a social democrat, as noted in this paper sketching an intellectual history of administrative law in Canada. The underlying philosophy was a belief in government, in contrast to a belief in judges, who were said to stultify the development of the social welfare state in favour of the common law. Indeed, Willis self-described himself as a “government man.”

The administrative law functionalists were politically-minded people, advancing a political agenda against the common law judges. But their argument for deference was also admittedly political. Says  Michael Taggart (at 257):

These left-leaning scholars were deeply resentful of what they saw as conservative judges twisting the pliable rules of statutory interpretation to favour the existing order, privileging the rich and the powerful, and defeating the purposes of statutes intended to further the interests of the workers, the homeless, and the least well-off in society.

One might see, here, a commitment to social justice broadly conceived. But the functionalists, and the way they taught us to think about administrative law, had significant blindspots, in an ideological sense. Not all causes were equally represented in their social justice mindset. Read, for example, this quote by Willis in his “Administrative Law in Retrospect” at 227, in which Willis decries growing trends to subject the administrative process to norms of transparency and accountability:

I am thinking particularly of a number of currently fashionable cults and the damage they may do to effective government if they are allowed to infiltrate too deeply into the procedural part of administrative law: the cult of ‘the individual’ and claims by prisoners in penitentiaries, complaining of their treatment there or applying for parole, to a formal ‘right to be heard’; the cult of ‘openness’ and claims by the press to the right to dig into confidential government files; the cult of ‘participatory democracy’ and claims by ‘concerned’ busybodies to the right to be allowed to take court proceedings to curb, say, alleged illegal pollution or alleged dereliction of duty by the police.

One need not belabour the point; to the extent Willis is representative of a functionalist mindset, the commitment to social justice only went as far as required to protect the prerogatives of government. This is an empty form of social justice, one more attuned to the preservation of government as a functioning institution than the use of government to achieve outcomes that improve social welfare. This might be a legitimate aim, though one should wonder why courts should have any involvement in propping up modern government. But let’s not pretend it is an ideal vision of social justice.

What’s more, the vision ended up being remarkably short-sighted. Nowadays, the administrative state is most problematic in areas which affect the least well-off, including those that Willis slagged in his article: prisoners, those suffering from pollution, immigrants and refugees, and social assistance recipients. How can a broader theory of delegation to administrators, based on the relative conservatism of courts, miss out on all of these people?

This illustrates a broader point, about which the real functionalist motivations shed light. Delegation to administrators, no matter the substantive or pragmatic justifications for it, is about power. Whether it is a delegation of legislative power, an executive power of appointment, or otherwise—delegation is about a transfer of a power from one entity to another. In this case, it is a transfer of power from one branch of government to another—most notably from the legislative to the executive. The power of the executive branch is aggrandized by delegated power. The functionalists, at least Willis, understood this, By trying to fend off pesky “prisoners” and “busybodies,” the functionalists directed their attention as much to courts as to litigants seeking to challenge executive action in courts. The effect of their doing so was the preservation of administrative power.

As I’ve previously written, the upshot of this is that power can be wielded in either direction. Executive power in particular can be put towards social welfare ends. But power is inherently neutral, and is shaped by the person wielding it. Administrative power, just as much as it can be used for social welfare ends, can also be used to stymie social welfare goals. This much the administrative law functionalists teach us.

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

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

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


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

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

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


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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

Judges are Subject to Law, Too

Last summer, I wrote a blog post about a concerning case out of the Federal Court, Girouard v CJC. The gist of the case was the claim by the Canadian Judicial Council (CJC) that their reports, recommendations, and decisions in the course of the investigation of a judge were not subject to judicial review under the Federal Courts Act.

For the reasons I outlined in my blog post, this argument was both surprising and unfortunate:

I see this case as an extreme example of the modern trend of administrative law: towards more regulation and more administrative decision-makers that have court-imposed “unlimited” powers (see West Fraser, at para 11). Once we accept even one instance of such a decision-maker, vested by statute, we have to conclude that no court can speak ill of that “unlimited” decision-maker. Obviously this has profound effect on the Rule of Law, individual liberties, and due process. Take this case–dissenting members of the CJC were concerned that certain anglophone members of the CJC could not evaluate the entire record, which was in French. This implicates the fairness of the process for Justice Girouard. A purpose of judicial review is to ensure this basic fairness, but if we make administrative decision-makers beyond reproach, we sit them alongside the basic law of the land–the Constitution. And of course, legislative bodies acting alone cannot establish new constitutional provisions.

And, because of finer legal points, I thought that the CJC’s case was weak. For example, though the membership of the CJC is made up of s.96 judges, which would counsel a restrained approach to judicial review, the premise of the CJC is as a “statutory investigatory institution, vested with powers only so far as the statute allows.” The CJC is, like all administrative decision-makers, rooted in statute. And as a result, the membership of the CJC does not bear on the question of whether it is subject to review.

Luckily, the Federal Court of Appeal recently affirmed the Federal Court’s holding that the CJC is subject to judicial review. This is the right result, and one that prioritizes the rule of law—the supervision of all state actors, regardless of their status, under higher law—over administrative fiat, even fiat issued by judges.

It is worthwhile to explore the Federal Court of Appeal’s reasoning to see why the court got the case right. Under the Federal Courts Act, the definition of a federal board was recently confirmed by the Supreme Court in Mikisew Cree—a judgment to which Chief Justice Wagner, who is the head of the CJC, signed his name. Section 2 of the statute defines a reviewable “federal, board, commission or other tribunal” as one that exercises statutory powers or powers under an order made pursuant to Crown prerogative (Mikisew Cree, at para 18). Here, we see the idea that the root of agencies subject to judicial review in the Federal Courts is fundamentally statutory in character. On this front, the Court reviewed its test in Anisman, which provides that a court, to determine whether a body falls within the Federal Courts Act, must consider the source of the powers exercised and the nature of those powers (see para 37).

Consider first the source of power. Here, the Court—as I did in my blog post last summer—drew a sensible distinction between the CJC as a statutory institution and its membership. The Court noted that without statutory nourishment, the CJC would not exist—it exercises no inherent powers simply because it is made up of s.96 judges (see paras 41). Moreover, the nature of the powers exercised by the CJC are not judicial, adjudicative powers per se. Rather, the CJC exercises powers that are fundamentally administrative in nature; those powers are inquisitorial, investigative, and not powers exercised by s.96 judges as s.96 judges (see paras 77-78). Since both the source and nature of the powers exercised by the CJC are rooted and defined by statute, and are typical administrative powers, it follows that they can easily fit the definition of a federal board under the Federal Courts Act. On this front, it is important to note that the CJC could have been expressly excluded from this definition by Parliament, but it was not.

There was another argument raised by counsel for the CJC based on 63(4) of the Judges Act, which deems the Board or an inquiry panel a “superior court” (see para 81). It followed, according to counsel, that this deeming clause must be read in its ordinary meaning, such that it was at least colourable that the Board should have “all the attributes” of superior court jurisdiction; and therefore, should be excluded from the definition of a statutory body under the Federal Courts Act.

Notwithstanding that this argument runs up against the stubborn fact that the CJC exists only because of a statute saying so, the Court rejected this argument on other grounds. The text of the so-called deeming provision, notably, did not denote that the CJC’s jurisdiction should expand to the full powers of a superior court, beyond the procedural powers required to manage inquiries. Notably, if Parliament wanted the CJC to be a court of superior jurisdiction, it could create it as such under s.101 of the Constitution Act, 1867, under which the Federal Court was created. But it did not do so. Absent a clearer statement, the CJC should not be presumed to possess full superior court powers, just as the Canada Transport Agency, with a similar deeming provision, is not presumed to carry those powers.

The final part of the judgment, which should be particularly commended, is the Court’s focus on the implications of the CJC’s arguments for the rule of law. Shielding the CJC from review would amount to a situation where an administrative decision-maker—simply because of some of its membership, and even though it exercises public functions—can evade the strictures of public law. In a government of laws, the possibility for this should be foreclosed. This is true no matter who makes up the overall administrative body.

Overall, there are two important points to this case to which I should draw attention. First, and as I have said time and time again, the administrative state exists not because of any constitutional mandate or legal principle other than statutory enactment. Judges attempting to insulate themselves from review could be successful if the administrative state existed as a matter of constitutional law. Indeed, there are some that argue that there are constitutional foundations to the administrative state. This sort of argument, in my view and with all due respect, is clearly wrong. And the Federal Court of Appeal seems to agree. Even when we are talking about judges, the fact that the CJC’s existence is because of statute is the definitive answer to any claim that it cannot be subject to the rule of law. Put differently, imagine the incentive effects of an opposite conclusion. Parliament could staff administrative agencies with judges, making them evasive of judicial review, and simply state that the Constitution protects the body of which they are members as part of the “constitutional administrative state.” No one should accept this line of reasoning.

Second, the fact that the court rooted its consideration in the rule of law is important. The Court could have simply analyzed the applicable law, which clearly ran up against the CJC’s claims. But it went further at para 103 by rooting the conclusion in the idea that all public officials—no matter their own august judicial status—should be subject to the dictates of law. In today’s day and age, this is a reminder that we all need.


The New Administrative Law II: Why Defer?

Part II of a two-part series on administrative law

In Part I of this series on administrative law, I set out the reasons why the Progressive mode of thinking about the subject has lost force in the 21st century. The basic point was that the Progressives—who thought agencies could be staffed by expert, well-intentioned people to achieve progressive goals—assumed too much. In today’s day and age, deferring to agencies on the basis of expertise or their particular substantive goals would mean drawing a consistent rule that applies to inexpert agencies and those who do not hold progressive goals.

In truth, though, this tells us nothing about what sort of judicial review doctrine should be adopted by courts—what the posture of courts should be on judicial review. The only reason I needed to write the first post in the series is because the Progressives, who are the architects behind today’s administrative state, made these weak reasons for deference the basic building blocks. The Progressives made it so political appreciations of agencies justified a deferential posture. The problem with these assumptions, though, is that they require a constant justification according to empirical facts, and a costly court-led investigation into the reasons for deference in every case. The assumptions must be true. And if they are not true, the reasons for deference melt away.

More importantly, these functional reasons for deference are not legal reasons for deference. As Justice Scalia said, they are not reasons for motivating a court to refuse to take an independent view of an agency decision.

So, the first post in this series was not a post I wanted to write, because expertise and the political goals of an agency should be wholly irrelevant to judicial review. But it was a post I had to write, because these reasons for deference need to first be put aside before embarking on a far more ambitious task: describing a defensible doctrine of judicial review.

In the spirit of the Court’s upcoming administrative law trilogy decisions, I invite readers to take a step with me into a world where there is no administrative law doctrine—but there are courts and administrative agencies. Let’s say that there is no court-made law governing the relationship between courts and agencies. All we have is our Constitution and the principles that animate it, and statutes

Luckily for us behind this veil of administrative ignorance, the Constitution itself gives some thought to how Parliament and courts should interact. When Parliament passes law, absent constitutional objection, its law binds because of the idea of parliamentary sovereignty. Putting aside thorny issues of an unconstitutional delegation of power or other constitutional challenges to administrative discretion, most administrative issues are just ordinary, hum-drum stuff involving an exercise of discretion or the interpretation of a statute.

When an administrator is delegated power under Parliament’s law to make determinations, issue rules and regulations, or adjudicate disputes, its power is confined by the statute that creates it. The administrator cannot make a decision forbidden to it by statute. Traditionally, in the common law, it was the job of the courts to interpret the limits of statutory bounds and say when a decision-maker took a decision that was not prescribed by statute. In other words, courts interpret statutes to give effect to legislative meaning regarding agencies. Courts do not invent standards to govern those agencies.

In this way, the concept of jurisdiction at common law was an attempt to synthesize parliamentary sovereignty with the rule of law. Of course, jurisdiction became a problematic concept, for the same reason that the Progressive approach to administrative law is problematic. It read a judicial conservatism into the statutes adopted by Parliament, just like Progressives wanted judges to read labour-friendly standards of review into the law. But the concept that jurisdiction was getting at—the “statutory authority” of the decision-maker—was basically sound. The idea, expressed in Bibeault, that all of judicial review is fundamentally a matter of statutory interpretation is the simple reality of the matter.

This raises the question: when does a court defer under this arrangement? In my view, the only legal and constitutional basis for deference is when a legislature expressly or implicitly says so. I have already expressed why functional or policy reasons for deference are underwhelming reasons for a court to take a hands-off approach in the interpretive process. They are empirically doubtful, and do not legally bind, because it is Parliament, not the courts, that prescribe the level of deference.

When Parliament expressly provides in a statute for the standard of review, the issue is easy. Parliament’s law binds. The trickier question exists, in the vast number of cases, where Parliament or legislatures do not expressly provide for a standard of review, and courts must do the best they can with the statute in front of them.

This moves us from the world of abstract principles in the technical, doctrinal question of judicial review: which doctrinal tools should courts use to approximate legislative meaning on standard of review when there is no clear legislative meaning available? There are any number of options, but one can divide the world into two different types of legal doctrines: rules and standards. A standard might look something like the Dunsmuir factors, in which courts are asked to look to the various indicia like the expertise of the decision-maker, the nature of the question at issue, or the existence of a privative clause or a statutory right of appeal; the former a non-binding sign that courts must defer, the latter a sign that legislatures contemplated a more searching standard of review. The goal of the standard is to take into account “context” to approximate all of the conditions under which deference could exist.

One could also imagine a rule. This has been the approach adopted by the Supreme Court as of late. In both Edmonton East and CHRC, the Court went to pains to explain that its preferred approach was a presumption of deference, based on the expertise of the “tribunal” as an “institution.” To the Court, a strong-form presumption of deference is designed to simplify the standard of review analysis and “get the parties away from arguing about the tests and back to arguing about the substantive merits of their case” (Alberta Teachers, at para 36, citing Dunsmuir, at para 145).

There are costs and benefits to both rules and standards, the complexities of which I cannot explore here. But, in at least one respect, the costs of standards cut hard in the direction of rules when it comes to administrative law: that is, the costs of “compliance” with a standard are likely exponential in a world where administrative agencies take different forms, carry different legislative, executive, and judicial functions, and take on varying policy tasks in complex regulatory environments. It is difficult for litigants to approximate the standard of review under the current scheme, because they cannot be sure with any degree of regularity what the standard will be in their case. There is also a kernel of truth in the Court’s reasoning about deferential presumptions: at the very least, they focus the parties in on the merits at the expense of the rather abstract standard of review.

But the standard of review, nonetheless, is integrally important in a world where government action is confined by law. It prescribes the conditions under which unelected judges can interfere with the actions of delegated actors, acting under authority delegated to them from elected actors. It is important to get the question right, as a matter of the rule of law. But it is also important to stabilize the law, also as a matter of the rule of law.

How do we balance these considerations? I favour a rule of interpretation similar to the one advanced by Martin Olszynski: there should be a presumption of correctness review. That presumption would operate under the well-supported idea that the legislature must affirmatively—explicitly or implicitly—speak before a court will infer deference. In other words, deference does not accrue to administrative agencies from the heavenly font of judicial chambers. It does not exist in the ether because of some expertise-worship or the desires of progressives; after all, experts should be “on tap, not on top.” Deference is, in reality, only a legal matter—only prescribed by legislators—and must be fairly interpreted to exist by courts.

The rule can be slightly relaxed when we come to understand under what conditions deference should operate. A privative clause, within constitutional limits, should bind courts and be a sign of deference—it should operate as a statutory “clear statement rule” that deference was intended by the legislature. In less clear cases, such as when statutes delegate power in broad terms (the classic “public interest” delegation is an example), courts should also defer, on the grounds that legislatures would have spoken more specifically if it wished the agency to have a more limited range of factors to consider in making a decision. Where a legislature uses a “statutory recipe,” deference should be very narrow, perhaps non-existent: if an agency has a list of factors to consider, it must consider that list, nothing more or less.

Of course, what I have said here is open to criticism (Professor Daly, for example, wrote a piece a few years back criticizing this line of thinking; I responded to Professor Daly’s piece, here). And nothing in here is necessarily new. Justice Stratas, for example, has written decision after decision at the Federal Court of Appeal level along these lines. Nonetheless, the contribution I seek to make here must be read in light of my previous post. My conclusions can be summarized as follows:

  1. Legislatures are sovereign within constitutional limits.
  2. This means that when legislatures delegate power, within constitutional limits, courts (as unelected actors) should respect the will of elected actors. This is a simple corollary of the English Bill of Right
  3. On that logic, it is for the legislature to tell courts just how far courts can go. In the state of nature, courts must fairly interpret those boundaries.
  4. Courts should not read progressive (or conservative) justifications for deference into the law. Courts should not presume expertise where it does not exist. Courts should not presume that agencies are owed deference because they are part of the “social welfare” state. In the latter part of the 20th century, the courts swerved in the direction of leftist politics rather than law. That tendency should be guarded against, not only because it is wrong as a matter of law, but also because it is empirically untrue. But so should the tendency to shift in conservative directions.
  5. The best rule, with this in mind, is a presumption of correctness review, with the onus on the legislature to stipulate if it wishes more deference in the context of particular statutes, using either (a) privative clauses/statutory rights of appeal or (b) broad language, implying that the legislature did not wish to limit the considerations an agency can take into account in carrying out its tasks.

The methodology here is not perfect, the considerations are not complete, and there is more that can be said. But at the very least, in this series of posts, I hope to have inspired a re-evaluation of the existing reasons why we defer to agencies. I also hope to have encouraged readers to reflect on the real reasons why we should ever defer at all.

The New Administrative Law

Part I of a two-part series: why we need to reconceptualize the administrative state and our reasons for deference.

**This is the first in a two-blog series of blog posts about re-theorizing administrative law. This first post is about why the traditional justifications for the administrative state and deference to administrative law are wanting. The next post will be about my prescription for a new doctrine of judicial review, based on new theoretical commitments**

By now, it is rote for observers of Canadian administrative law to say that the mechanics of the law of judicial review are in dire need of repair. The Supreme Court at least tentatively agrees; currently under reserve is a series of cases that could lead to renovations in the law. I have written before why I think the Court is unlikely to do anything of substance with these cases. Upon reflection, I am even more convinced that, even if the Court does something, virtually any solution it will come up with will only tinker at the edges of the problems in Canadian administrative law. This is because the whole body of law is in need of re-conceptualization and theoretical re-justification. The Court is unlikely to accomplish that task.

Why do I say this? The fundamental assumptions undergirding Canada’s administrative law have not been calibrated to the political or social realities of the 21st century. Specifically, the reasons marshalled for why we defer to administrative agencies are the same today as they were in the 1940s. This is baffling. The empirical realities of the administrative state, in the current day–connected to our traditional understandings of parliamentary sovereignty and the Rule of Law (not in conflict, as is commonly supposed)–should inform whether or not courts defer to agencies.

For the most part, Canadian administrative law continues to be stuck in the thrall of American Progressivism—by which I mean that school of thought, dominant in the New Deal era, that had at least two heads (as Richard Epstein notes here). First is the idea that power could be delegated to persons in the public service who would always act in good-faith, and be faithful agents for the pursuit of substantive goals associated with the New Deal and small-p progressive, leftist politics. Coupled in this first head was a skepticism surrounding courts, which were perceived as mired in the conservative common law. Second is the idea, championed by people like Woodrow Wilson, and going back even further to Max Weber, that administration was a science; and that the powers of the state could be wielded by experts in an efficient manner for the greater good. This was not only an American invention—in Canada, we had our own band of administrative law Progressives, including John Willis, W.P.M. Kennedy, J.A. Corry, and later on, Harry Arthurs (for a good account, see R. Blake Brown “The Canadian Legal Realists and Administrative Law Scholarship, 1930-1940” (2000) 9 Dalhousie Journal of Legal Studies 36).

If the assumptions supporting this Progressive administrative law were ever true, they are no longer true some 80 years on. Consider first the substantive goals of the administrative state. For W.P.M. Kennedy, administrative agencies were means to achieve important progressive substantive goals. Kennedy said:

New standards must be developed in all fields of human endeavor which will be in harmony with the new social philosophy of the age. Care of the sick, the poor, the aged, and the infirm, elimination of slums, control of industry in the interests of humanity, protection of children, universal education, development of natural resources for the benefit of all mankind, all demand attention.

(“Aspects of Administrative Law in Canada” (1934) 46 Juridicial Review 203 at 221)

John Willis, in his classic article “Administrative Law and the British North America Act,” also wrote that:

The years of depression since 1929 have induced legislatures to pass laws which are right out of line with traditional ways of thought and therefore distasteful both to the those guardians of the past, the lawyers, and to their wealthy clients who have, of course, been adversely affected by these laws.”

Harry Arthurs later wrote, in his attack on judges, that the “inexorable logic of the law” “produced results which seemed contrary to social justice, and sometimes, to common sense.”

But the substantive understanding of the administrative state as a purveyor of social justice is no longer true, and it is unclear if the assumptions ever were. Reading the Kennedy, Willis, and Arthurs quotes, one is surprised at their unbridled faith in government–particularly administrative agencies–to achieve herculean goals. The problems with this sort of thinking are endless. First, to the extent the administrative law Progressives attacked the common law, the criticisms were profoundly ahistorical. The common law was not, as Arthurs suggested “contrary…to common sense.” As Richard Epstein points out (and has over the course of his 50 year career), the common law rules were actually much more subtle and sophisticated than modern Progressives suppose. In areas of contract, tort, and property law, common law rules were used since the time of Roman law as simple rules of thumb for organizing contractual relations and demarcating property boundaries clearly (consider the first possession rule of property law—a simple rule that is actually derived from Roman law). They were used all this time for a reason. While tradition is the bête-noire of modern legal thought, there is at least a reason to think—however naively—that people organized different legal systems across time and geographic boundaries in common ways for a reason. Ignoring these features of the common law seems unfair, even if the common law must be adapted to new realities.

Now, in the 21st century, administrative agencies are armed with the most repressive powers of the state. We are no longer talking about expert labour boards, the darling of Canada’s Progressive administrative law theorists, and the body that dawned Canada’s modern administrative law doctrine. Now, prison wardens make decisions about the rights and interests of prisoners, some of the most vulnerable of us. The prison situation is especially concerning. So-called “administrative segregation” is a matter of judicial review, because it is an administrative decision—an exercise of discretion, which Kennedy supposed would be used to help the “sick, the poor, the aged, and the infirm.” Yet solitary confinement is, by most accounts, one of the most repressive and arbitrary forms of punishment to which one can be subject. All a matter of administrative law and judicial review.

This is why it is surprising to see Progressives continue to be skeptical about the role of courts. Administrative law progressives had and continue to have a rather obsessive focus on A.V. Dicey without realizing that Dicey’s account of administrative law accepted the idea of delegation, but was aimed at attacking a particular sort of “administrative law”—the droit administratif of France. Dicey was simply concerned with how best to control administrative power; the question is not whether delegation should exist, but how best to control it. Yet, so strong was the Progressive faith in government, that Harry Arthurs said that he “took to wondering out loud whether courts had any role to play in any field involving social conflict or controversy.”

In my view, Dicey was not the unrealistic one here. The Progressives, with their unbridled faith in the power of the state, put all of their eggs in a basket with no bottom. They ignored the experience and thinking of many of those who came before. Consider the wise thoughts of James Madison and many of the US framers, who were so skeptical of government action that they took pains to divide and separate the functions of government; government was necessary, because men are not angels, but it had to be limited and controlled. Adam Smith, in his Wealth of Nations, expressed a similar moral skepticism about perfect, good-faith government agents:

By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the publick good. It is an affectation, indeed, not very common among merchants and very few words need be employed in dissuading them from it (456).

This is not to say that government is either a force for good or evil; such characterizations are far too simplistic. I only aim to say that there is a strong moral tradition of skepticism that the Progressives simply did away with, without an understanding of the nature of delegated power: it can be used in either political direction. It is profoundly disturbing to suggest that courts should not have a role to play in policing the boundaries of the arms of the state concerned with prisons, for example.

The substantive goals did not stand alone. For Progressives, the chosen means for accomplishing these ends were the “alphabet soup” agencies of the New Deal. Indeed, John Willis famously wrote that administrative law must be viewed as a “functional” matter: “Three Approaches to Administrative Law: The Judicial, the Conceptual, and the Functional” (1935) 1 UTLJ 53). For Willis, this was true on two levels. Administrative law had to be studied as a functional matter. That is, we had to know what happened in the administrative state to actually understand administrative law. This is undoubtedly true. But Willis went further, arguing that “Expertise, avoidance of delay, reduction of expense—these are the basic reasons for the modern practice of giving the power of decision in many areas to deciding authorities other than courts.” Adding to that list was a desire for independence for these decision-makers (see Brown, at 50).

So, there are three functional reasons for deference at play here: (1) expertise (2) efficiency and (3) independence. I can only touch on these briefly, but they do not stand up to scrutiny as reasons for an across the board presumption of deference.

I have written before about expertise. The question is not whether expertise exists in the administrative state. Clearly, it does, whether intrinsically or through the development of “field expertise.” The question is whether expertise inheres in an agency as an “institution,” as the Supreme Court suggests in Edmonton East, such that we should defer as a matter of course. On questions of law, it is far from true that we should be confident to impose a rule (rather than a standard) assuming that agencies have this sort of expertise. Consider the case of Vavilov, currently under reserve at the Supreme Court. The analyst report, which formed the decision of the Registrar of Citizenship in that case, said the following (as excerpted in the Parkdale Legal Services brief):

[The analyst] confirmed that she was not a lawyer, had never gone to law school, and perhaps taken one course in administrative law as part of her degree in political science. She also confirmed that she was a junior analyst, had not relied on any internal policy guidelines or any other documentation…and had found nothing in her search of archives…

This statement does not inspire confidence in the expertise of a decision-maker. And this is not just reserved to the Vavilov case. Parkdale Legal Services outlines a number of other decisions, in the immigration context, where a decision-maker evinced a lack of expertise. It is completely unrealistic to transform this thin reed into a strong-form doctrinal presumption.

On the question of efficiency, this is perhaps one of the areas where the administrative state has failed most. At the Immigration and Refugee Board, Canada’s largest tribunal, the wait time for a refugee hearing, for example, was two years long as of November 2018. At the Ontario Human Rights Tribunal, delay appears to be the watchword, due to alleged partisan interference in the appointments process. I could go on. But delay, and lack of resources, hobbles the ability of administrative justice to be a system of justice at all—even relative to courts.

And, what’s more, access to the administrative state—like the administrative state itself—is sometimes a matter of government generosity. Consider the recent cuts to legal aid in Ontario. Former Justice John Evans of the Federal Court of Appeal recently wrote an article in the Globe and Mail, focused on the fact that cuts to legal aid will hamper the ability of refugees to have a fair shot at justice. How can a system that causes such rash injustice be labelled an “efficient” system of administrative justice? If litigants do not have equal access to the system, is administrative justice at all a serious alternative to the courts?

And on independence, the story is no better. The Supreme Court of Canada itself has held, in Ocean Port, that administrative decision-makers are simply creatures of statute, controlled by the executive. Governments of all stripes have treated them as such. Consider the case in Saskatchewan, where an incoming government fired all the members of the labour board. Or, consider the recent delays in appointments to the Ontario Human Rights Tribunal, which in turn impact the independence and functionality of the Tribunal.

Of course, a few examples does not a theory make, but it should be cause for one to at least reconsider the foundational assumptions of administrative deference. My point here is not to say that the administrative state must be abolished because its organizing premises are frayed. It is instead to point out that if courts are to defer to administrative decision-makers, there should be good and existent reasons for deference. And, I need not prove that all of the traditional justifications for administrative power are no longer true. Even if they are only untrue by half, there is a need to reconceptualize what substantive and pragmatic justifications undergird the system of administrative law.

The problem, as I will explore in my second post, is that these policy reasons for deference have been transformed by courts into legal reasons for deference, without a concern for whether Parliament has actually, itself, done so. These reasons do not even have the benefit of being empirically true in every case, and yet they are treated as such when the SCC uses them to justify a strong presumption of deference.

The Supreme Court, in the upcoming trilogy, is institutionally unable to deal with theoretical problems of this magnitude. In reality, lawyers, judges of courts the country over, academics, and politicians should be the ones rethinking how our administrative state operates. We need a new theory of judicial deference.

The Diceyan Trope

Metaphors, labels, and particular phrases seem to be a constant theme running through Canadian law. In virtually every area of public law, the Supreme Court deploys clever labels and metaphors to convey ideas that are bundled with certain inferences or assumptions about the ideas themselves. The most famous, perhaps, is the living tree model of constitutional interpretation, which is so ingrained that it has taken academic articles to dislodge its place in the constitutional zeitgeist. Other examples abound.

On one hand, these linguistic devices are useful shorthand. Rather than explaining complex concepts, they allow the Court and others to quickly express a complicated idea in a way that lawyers and academics can understand. On the other hand, they shortcircuit critical analysis of the ideas they represent. Rather than acting as useful stand-ins for complex ideas, I fear that they have become broadside representations of certain way of viewing Canadian law; concepts that, through frequent usage, have become immovable stones that represent closely-held positions.

Perhaps this is most evident with one of the most widely-deployed tropes: the attack on one of the dark lords of administrative law, A.V. Dicey.

I confess that the inspiration for this post was Justice Abella’s recent speech in New Zealand, in which she, as usual, attacked the “Diceyan” conception of administrative law. Lest one should think this is an isolated incident, this Diceyan label also infected the Vavilov and Bell/NFL hearings at the Supreme Court, when one intervener argued that other Commonwealth jurisdictions have gotten by without a standard of review analysis, and a judge retorted that this is because they are trapped in a Diceyan mode of law. As Audrey Macklin explains respecting this exchange, “[The] insinuation behind this remark is that these benighted commonwealth judges are trapped in some nineteenth century intellectual dungeon.”

I fear that this insinuation is the one meant by Justice Abella. Bundled within the Diceyan attack is a number of presuppositions. As far as I can tell, the attack on Diceyanism is an arrow in the quiver of those judges and scholars who were inculcated in the New Deal and Keynesian era of technocracy, expertise, and social policy.  Often called administrative law “functionalists,” (people like John Willis and Harry Arthurs) the functionalists worried about Diceyan administrative law as a way to fill-in conservative ideals under the rule of law rubric. To their minds, cases like CUPE [1978] best recognize the social policy aims of tribunals and their technocratic expertise.

I’ve written before about why these arguments are ill-fitted to the modern administrative state.  Administrative decision-makers now no longer operate in a narrow field of social policy, but also inhabit the most repressive areas of the state: prisons and border officers, for example. Technocratic expertise is one thing, but legal expertise is quite another, and decision-makers are now tasked more than ever with deciding complex legal problems for which they are not necessarily trained. Put differently, there is no reason to believe that an expert in subject-matter A will necessarily have expertise in legal area B. Nor is there any reason to believe that the expert will be able to explain her conclusions in language that permits accountability through judicial review–this is the problem of immunization to which the Federal Court of Appeal is increasingly drawing attention.  The assumptions underlying the functionalist view, if they ever existed, no longer exist as a general matter.

In fact, there is much about Dicey to be admired. The first consideration, though, is determining what Dicey actually meant. While functionalists try to paint Diceyan as a rank anti-administrativist, there is some nuance to his position. Dicey was comparing with a particular style of administrative law—“droit administratif”—which Dicey thought was alien to English legal principles. Particularly, he believed that a separate body of law governed relationships between citizens and the state, as opposed to citizens and other citizens. State actors were not subject to scrutiny by the ordinary courts, but rather special administrative courts. The concern for Dicey wasn’t the exercise of delegated power—he actually allowed for the exercise of legislative powers by delegated actors in the English context, entities like municipal bodies. Instead, it was the worry that different rules might privilege state actors. This concern still worries us today.

But administrative law as we now know it is not about granting rights and privileges to state actors (putting aside ideas of qualified immunity). State actors are subject to the ordinary jurisdiction of the courts. The only doctrine that dilutes this oversight is self-imposed: doctrines of deference that courts created themselves to grant delegated actors “policy space.” No matter, while administrative law as we know it arose subsequent to Dicey, Dicey is probably not as radical as his opponents make him out to be.

What’s more, Dicey’s fundamental principles remain relevant today. His explanation of the rule of law contained within it the seeds of a more substantive approach, one of “legality” underlying all exercises of public power. This is still a useful and important concept, particularly as we consider how best to control discretion exercised by administrative actors. There is nothing in Dicey’s principle of legality that implies a necessarily conservative orientation. All it insists is that courts have an important, perhaps exclusive, role to play in policing the boundaries of the administrative state.  And unless we are willing to attack the independence of judges by insinuating that their policy preferences infect their judicial duty, maybe we should not be so worried about courts like the functionalists were.

More broadly, Dicey did attempt to wrestle with the distinction between parliamentary sovereignty and the rule of law, as I outline here. This is a concept that continues to bedevil us today in discussions about standard of review, and the extent to which Parliament’s law should oust the ability of the courts to review decisions on a de novo basis. As Mark Walters aptly noted in his contribution to the Dunsmuir Decade symposium:

Dicey made some mistakes and the punishment for his sins seems to be that his name is forever associated with that flawed “Diceyan” understanding of public law. However, some of the most difficult and underappreciated passages in his famous book, Law of the Constitution, come in the course of an attempt to explain how judges may resolve the tension between the rule of law and parliamentary sovereignty—passages which make little sense unless we assume that the “spirit of legality” that he says shapes all legal meaning is a substantive ideal that justifies and legitimates the exercise of governmental powers

This Diceyan concept—identified by Walters—is still centrally important today. But it has been forgotten, in part due to the negative inference drawn by those who label particular proposals as “Diceyan.”

This is not to say that these arguments are altogether immune from attack. For example, it is controversial to say that courts should have an exclusive role to play in the rule of law. In the modern era, a focus on courts also tends to crowd out discussion about the best controls on administrative discretion that exist: those imposed by Parliament itself.  I also think that Diceyanism can be used to justify an all-out, Phillip Hamburger-style attack on the existence of the administrative state writ large. For some, this is a good thing. But for others, there may be reason to think Diceyanism is open to abuse.

My point here is not to say that Dicey was right or wrong–clearly, like most humans, he was a bit of both. Either way, to my mind, it is not a foregone conclusion that Diceyan administrative law is a wholly improper theory of the administrative state. Like most theories, Diceyan administrative law contains important principles that should animate future research directions, but it is not a cure-all. Invoking the Diceyan trope does little to further intelligent debate about what administrative law should look like in the 21st century.

At the Executive’s Pleasure

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

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

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

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

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

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

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

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

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

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

The Administrative Law “Trilogy”: The Stare Decisis Trap

This post originally appeared on Advocates for the Rule of Law.

This week, the Supreme Court of Canada finally heard the consolidated appeals in Bell/NFL and Vavilov. ARL, expertly represented by Adam Goldenberg, put forward our submissions on the matter, which focus on a return to the basis of the law of judicial review: its statutory character.

During the hearings, one particular line of questioning posed a problem for this argument, which asks the Court to critically analyze all of its precedents, even those pre-Dunsmuir. Justice Moldaver, for example, suggested that one of the parties’ submissions in Bell/NFL would “take us back 30 years.” That comment was made as if it was undesirable to look to the foundations of the law of judicial review. Justice Gascon chided the same counsel for framing his submissions as a “minor adjustment,” suggesting that it was, in fact, a major overhaul. Again, the comment was stated as a decisive fact, acting as a criticism of the merits of the legal position.

This line of thinking, to my mind, is odd for at least two reasons.

First, when the Court granted leave to these cases and consolidated them, it invited a critical appraisal of its standard of review cases since Dunsmuir. Like all of the common law, Dunsmuir is a product of what came before it. Dunsmuir, for example, incorporates CUPE’s generally deferential posture without doing away with the pragmatic and functional factors outlined in Pushpanathan, Pezim, and Southam. The Court’s invitation of a critical appraisal should be taken seriously.

The line of questioning invited by Justices Gascon and Moldaver does not inspire confidence that the Court is serious about a full-blown reappraisal of Dunsmuir and what it contains. It may very well be that the line of questioning was aimed at protecting Dunsmuir from assault, on the grounds that it is not only good law, but workable and constitutionally acceptable law. But I heard no such robust defence of Dunsmuir, and it would be difficult to sustain one given the widespread discord it and its progeny have caused in the lower courts and among the academic community. To my mind, if the Court invited review of Dunsmuir, it should review. Weak appeals to stare decisis are not helpful.

On that note, the line of questioning is odd for a second reason: this seems like the perfect case, rare in the common law system, to tear down the precedent and critically interrogate first principles. I am alive to the concern this raises about reliance interests, certainty in the law, and the other virtues of a strong stare decisis rule. But the law of judicial review in Canada is so derelict of principle and unworkable that the reliance costs on it must be minimal. The costs of advice under the regime are already high, because (1) it undergoes constant change and (2) it is difficult for a lawyer to say to a client, with any acceptable probability, what the outcome of a case would be.

Given the already-high costs imposed by a strict rule of stare decisis in this case, it is a good opportunity to go back to first principles and create a modern law of judicial review. The key touchstones should be consistency with constitutional precepts and workability. But there is a challenge: reassessing the law of judicial review may invite a re-assessment of the foundational principles laid down in CUPE.

CUPE was about a labour board in a commercial context. Today, the administrative state is a much different beast. The same rule of deference formulated in light of the expertise and position of a labour board in the 1970s cannot be applied to the decision of an immigration official to deport someone in 2018. The positions of the immigration officer and the labour board are so vastly different that a law formulated in light of the former, 40 years ago, is difficult to apply to the latter today.

The challenge is for judges on the Supreme Court who were born and bred in the Keynesian 70s to accept another model of judicial review. CUPE is a sort of foil for this bygone era. The conception of administrative law, at that time, was its potential for redistributive social justice, and nowhere was the terrain more fraught than in the economics of labour. Deference to these sorts of decision-makers could be justified as a tool to empower them in the face of conservative judges. But today, administrative law is called on to do much more. Now, there is a worry (Vavilov is an example), of an administrative state that directly impacts the most personal individual rights. Administrative decision-makers can make life-altering decisions that bring to bear the most repressive arms of the state against vulnerable people. This has nothing to do with redistributive goals, the labour movement, or any other social goal. As such, it is difficult to apply the social-justice rationale of deference to these decision-makers.

The new administrative law, conceived as a sort of control on satellite decision-makers, must be attuned to the new administrative state. Accordingly, the judges should not keep themselves to any strict rule of stare decisis. They should review the interaction of any proposed framework with the intricacies of the modern administrative state. Anything less would be a wasted chance.