Irreconcilable Differences

No, Denzel, it’s not fun anymore. The US federal government has cut itself loose from reality, but we still share a continent with them. As we update our priors and talk about our relationships, we can also consider the limits of comparative constitutional law. After everything the Americans have said and done, how much more can we learn from each other?

Judicial review and the rule of law

SCOTUS and the SCC agree that a constitution is supposed to endure and adapt to new and unanticipated challenges.

• In McCulloch v. Maryland, 17 U.S. 316 (1819), Chief Justice Marshall wrote “This provision [Art 1 §10] is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur” (415).
• In Hunter v. Southam, [1984] 2 S.C.R. 145, Dickson J. wrote “A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.”

SCOTUS and the SCC also agree that the judicial role is “to say what the law is” (Marbury v. Madison, 5 U.S. 137 (1803) at 177) and therefore to act as “guardians of the Constitution” (Hunter v. Southam, p. 155). As Justice Karakatsanis wrote for the majority in Ontario (Attorney General) v. G, 2020 SCC 38 at ¶98: 

the courts remain “guardians of the Constitution and of individuals’ rights under it” (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 169) — “[d]eference ends . . . where the constitutional rights that the courts are charged with protecting begin” (Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 36). This is because “[i]t is emphatically the province and duty of [the courts] to say what the law is” (Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), at p. 177).

SCOTUS and the SCC each rely on this understanding of the judicial role when performing structural analysis in relation to the judicial review of administrative decisions.

• Loper Bright Enterprises v. Raimondo at 7: “The Framers also envisioned that the final ‘interpretation of the laws’ would be ‘the proper and peculiar province of the courts.’ Unlike the political branches, the courts would be design exercise ‘neither Force nor Will, but merely judgment.’ To ensure the ‘steady, upright and impartial administration of the laws,’ the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches.”
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at ¶82: “Reasonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law”
• York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, ¶64: “The determination of constitutionality calls on the court to exercise its unique role as the interpreter and guardian of the constitution. Courts must provide the last word on the issue because the delimitation of the scope of constitutional guarantees that Canadians enjoy cannot vary ‘depending on how the state has chosen to delegate and wield its power.’”

And both courts invoke legislative intent to explain and legitimize their approach to the judicial review of administrative bodies.

• Loper Bright at 25: “The better presumption is…that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch.”
• Vavilov at ¶30: “in our view, it is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review…respect for this institutional design choice and the democratic principle, as well as the need for courts to avoid “undue interference” with the administrative decision maker’s discharge of its functions, is what justifies the presumptive application of the reasonableness standard.”

Notwithstanding all this agreement, these two apex courts have reached radically different default rules for judicial review of administrative decisions pursuant to authority delegated by the legislature. 

In Canada, since Vavilov, “The analysis begins with a presumption that reasonableness is the applicable standard in all cases. Reviewing courts should derogate from this presumption only where required by a clear indication of legislative intent or by the rule of law” (¶10). The majority summarized this approach and its “posture of respect” for “the legitimacy and authority of administrative decision makers within their proper spheres” (¶14) as follows:

In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place (¶15).

This respectful approach, which extends even to review of “subordinate legislation” (or regulations) promulgated by administrative bodies (Auer v. Auer, 2024 SCC 36 at ¶3, TransAlta Generation Partnership v. Alberta, 2024 SCC 37 at ¶14) and which is intended to inculcate a culture of justification among those who exercise delegated public power (Vavilov ¶14), resembles what was known in the USA as the second step of the Chevron doctrine, in which courts deferred to an agency’s interpretation of a rule if it was “based on a permissible construction of the statute” (Loper Bright at 2, citing Chevron USA Inc. v. Natural Resources Defence Council, Inc., 467 U.S. 837 (1984), 843).

But Loper Bright overturned Chevron. Now, SCOTUS insists that “the supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied” (p. 10). While the Administrative Procedure Act currently indicates deference to administrative factual findings, “[i]n the business of statutory interpretation, if it is not the best, it is not permissible” (p. 23). The SCOTUS majority repeatedly explained that its decision was driven by structural constitutional considerations:

• “To ensure the ‘steady, upright and impartial administration of the laws,’ the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches” (p. 7);
• the APA “incorporates the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory opinions” (p. 16).

This more rigorous American default standard of review for agency interpretations of law resembles the “correctness” standard that applies in Canada where required by the rule of law, including on constitutional questions. 

While SCOTUS and the SCC agree that it is the role and duty of the courts “to say what the law is,” they disagree fundamentally on “what law is.” This disagreement about the nature of law informs not only their respective approaches to judicial review of administrative decisions, but also their understanding of constitutions, the rule of law, and precedent. Their use of similar (and familiar) vocabulary obscures these critical differences. “Law” is never simply law. 

For SCOTUS, law is an expression of will:

“When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits” (Loper Bright, 17-18)

Of course, those constitutional limits are themselves expressions of the will of the People (United States v. Rahimi, Gorsuch J. concurrence at 4 and Kavanagh J. concurrence at 1-2)

And expressions of will are always, by definition, definitive. They are commands, and any ambiguities are only apparent. “Courts instead understand that such statutes, no matter how impenetrable do – in fact, must – have a single, best meaning. That is the whole point of having written statutes; ‘every statute’s meaning is fixed at the time of enactment.’” (Loper Bright,  22, citing Wisconsin Central Ltd. v. United States, 585 U.S. 274, 284 (2018). Whether statutory or constitutional, American courts have the tools to resolve apparent ambiguities and determine the original intent (Loper Bright, p. 23; Rahimi, Gorsuch J. concurrence 4; Rahimi, Barrett J. concurrence, 1). The meaning of a law is clear because it must be clear because the meaning of law is clear. Ideology at its finest.

For the SCC, law is a framework. As Dickson J. wrote in Hunter v. Southam, a constitution provides “a continuing framework for the legitimate exercise of governmental power.” As I have documented in detail, the SCC has relentlessly invoked this concept to characterize statutes (e.g. the UNDRIP Act and An Act respecting First Nations, Inuit and Métis children, youth, and families in Re an Act, 2024 SCC 5) and doctrines (recall the Vavilov framework, the Eldridge framework, the s. 8 framework, and the Collins framework, all from the majority opinion in York Region…or the frameworks for ss. 7, 8, and 10(b) of the Charter from the majority opinion in R. v. Brunelle, 2024 SCC 3). The Canadian framework advantage is both qualitative and quantitative: the opinions in Vavilov used 38 frameworks in 343 paragraphs for 11.08FW/100¶, whereas the opinions in Loper Bright used only nine frameworks in (an estimated) 249 paragraphs for a relatively low framework frequency of just 3.61 FW/100¶. 

For the SCC, and therefore in Canada, each element of law is a framework…which begs the question: a framework for what? In Vavilov, the majority claimed reasonableness review would inculcate a “culture of justification” in administrative decision-makers. In Charter cases, especially during the 1990s, the SCC championed a “dialogue” between courts and legislatures (Vriend v. Alberta, [1998] 1 S.C.R. 493, ¶¶137-139; M. v. H., [1999] 2 S.C.R. 3, ¶78 and ¶276 (Major J., concurring); R. v. Mills, [1999] 3 S.C.R. 668, ¶20, ¶57). I can’t provide a final answer. Not yet, maybe never. This is a work in progress about a work in progress: the decentralized, democratic pursuit of dignity.

Government immunity and stare decisis

You can follow a command, but you have to use a framework. A command demands obedience, whereas a framework invites application and adaptation. A framework assumes independence and agency among those who use it and invites them into a common endeavour.

In Trump v. United States, the SCOTUS majority insisted that the structure of the Constitution, namely the separation of powers, requires absolute immunity from criminal liability for the President.

By contrast, in Canada (AG) v. Power, 2024 SCC 26 the SCC majority says absolute immunity from civil liability would “would subvert the principles that command government compliance with the Charter and the courts’ role in enforcing its fundamental guarantees” (¶77). The unwritten principles of the Canadian Constitution require a doctrine of limited government immunity from civil liability:

Limited immunity ends at the point where it no longer strikes a justifiable constitutional balance. If the state enacts legislation that is subsequently declared invalid and that is clearly unconstitutional, in bad faith or in an abuse of power, good governance concerns can no longer justify shielding the government from liability for violating Charterrights. Damages may instead “promote good governance” by supporting the “foundational principle of good governance” that state action must comply with the Constitution” (¶115).

The separation of powers is an unwritten constitutional principle (and possibly a constitutional imperative) in Canada (Power, ¶48; Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 at ¶35). It is an integral part of the structure of our Constitution, but it does not apparently require anything resembling absolute executive immunity. SCOTUS and the SCC also agree that the judicial function within our respective constitutional structures is “to say what the law is,” but in Canada that function includes holding the executive liable for damages caused by unconstitutional laws. Similar constitutional structures dictate very different results.

According to SCOTUS, the Framers believed a “vigorous” and “energetic” executive was essential for “good government” (Trump, p. 10) and structured their Constitution accordingly: “when the President acts pursuant to his exclusive constitutional powers, Congress cannot – as a structural matter – regulate such actions, and courts cannot review them” (p. 36). The American executive is defined by “bold and unhesitating action” (p. 13). However, the majority insists this unrestrained vigour does not place the President beyond the law, since the supreme law of the Constitution requires it: 

“unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality – and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would – does not place him above the law; it preserves the basic structure of the Constitution from which that law derives” (p. 40).

While that sounds like a grey hole to me, at the very least it establishes an unnecessary and unfortunate dichotomy of law and action (Sotomayor J., dissenting, at 18). SCOTUS presents executive action as something that can exist outside of or prior to the law, but within the Constitution: the American Constitution contemplates the existence and exercise of power outside the ordinary law (but within the extraordinary Constitution). The People made the Constitution by exercising their will; they and their will somehow existed before the law, and their use of law as the medium for expression of their will is entirely incidental and instrumental, as it imposes no inherent constraints or requirements (unlike any other known “medium” or “instrument”). SCOTUS fetishizes purity and the perpetual possibility of the state of exception: lurking in its opinions is the pernicious germ of an original, extra-legal constitutional moment as a condition of legitimacy. Life is too short (and beautiful) to read Carl Schmitt again.

In Canada, we know that “there is no such thing as absolute and untrammeled ‘discretion’” (Roncarelli v. Duplessis, [1959] SCR 121 at 140). We live in a rule of law state (rechtsstaat). The rule of law is constitutive of government authority; the law is not merely an instrument of power. The SCC confirms, again and again, the importance of compromise in our constitution. It demonstrates and develops the negative capability of living with uncertainty rather than chasing the dream of perfect certainty.

The Canadian doctrine of limited government immunity “was expressly designed to reconcile competing constitutional principles” (¶65). More specifically, “A limited immunity reconciles the importance of parliamentary privilege with the Charter by ensuring that the privilege is no broader than is justified for a functioning constitutional democracy” (¶89).

It may seem novel for a text-obsessed SCOTUS to invoke “the basic structure of the Constitution” or for the SCC to insist damages can promote “good governance” while SCOTUS claims a vigorous and energetic executive is necessary for “good government”. But we should not be distracted by superficially similar words and phrases. Our supreme courts are engaged in very different endeavours. 

For one last example, compare Gorsuch J.’s account of constitutional judgment with the SCC’s most recent treatment of precedent. In his notorious 2024 concurrences, Justice Gorsuch consistently undermined stare decisis and expressly rejected purposive interpretation:

• Loper Bright, 8: “A past decision may bind the parties to a dispute, but it provides this Court no authority in future cases to depart from what the Constitution or laws of the United States ordain.”
• Loper Bright, 33: “Proper respect for precedent…counsels respect for the written law, adherence to consistent teachings over aberrations, and resistance to the temptation of treating our own stray remarks as if they were statutes.”
• United States v. Rahimi, 3-4: “a court may not ‘extrapolate’ from the Constitution’s text and history ‘the values behind [that right], and then…enforce its guarantees only to the extent they serve (in the court’s views) those underlying values.”
• Rahimi, 4: “Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult. Asking that question, however, at least keeps judges in their proper lane, seeking to honour the supreme law the people have ordained rather than substituting our will for theirs.”

By contrast, the SCC majority in John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2025 SCC 6 took a purposive approach to stare decisis and invoked the rise of purposive interpretation as a reason to overturn a formalistic precedent:

• ¶33: “The decision to depart from a precedent of this Court should not be taken lightly. This is because adherence to precedent furthers values such as the certainty and predictability of the law.”
• ¶35: “This Court has overturned precedents that adopted an overly formalistic method of Charterinterpretation before.”
• ¶37: “Avoidance of formalism takes on heightened importance in constitutional interpretation because a constitution’s ‘function is to provide a continuing framework for the legitimate exercise of governmental power…’”
• ¶48: “It is now necessary to depart from the formalistic distinction between the sentence and conditions of imprisonment to ensure that s. 11’s fundamental purpose of safeguarding liberty is robustly protected.”

Clearly, the SCC is comfortable with complexity and irony. SCOTUS prefers to play it straight.

Are we having fun yet?

Our judiciaries remain divided by a common vocabulary. South of a certain “artificial line that looks like it was done with a ruler”, law is a command. In Canada, law is a framework. So what?

The downsides of the impoverished American perspective are clear. Reduced to a purely formal expression of will, law only serves power. This cynical view might be defended as “realism,” but it is a fantasy driven by the fetishization of certainty. Judges and citizens look to the Framers to tell them how to live. Americans talk a lot about democracy but can’t bear the responsibility of deciding how to live. Instead, they look to one “big daddy” after another to wield power over them. I could go on.

Of course, the Canadian approach is not perfect. Our “framework” requires both talk and action, but our judges and citizens are naïve about our capacity for both. When approximately 50% of adults struggle with literacy, our country will struggle with a contested, federated, democratic experiment in realizing human dignity under conditions of unprecedented technological complexity, political and economic volatility, and profound environmental disruption.

I know which problems I would rather have. I’m an optimist and a democrat. I don’t want to be dominated. And I made my choice when I moved back to Canada 17 years ago.

Main St., Vancouver, BC