Vanessa MacDonnell: Resisting Simple Narratives (Book Symposium: Margit Cohn’s A Theory of the Executive Branch: Tension and Legality (OUP, 2021))

Margit Cohn has written a terrific new book about the executive branch of state. Resisting simple narratives or “dichotomous thinking,” she argues that “the executive is best viewed as straddling the line between subjection to law and dominance beyond law.” She explains that “under this ‘internal tension’ vision of constitutionalism, the executive branch is to be considered as concurrently subservient to law and dominant over it.” Cohn develops her argument using the concept of “fuzziness” or “fuzzy” law. The idea here is that “fuzzy” laws often provide broad general authorization for executive action, leaving the executive with a wide margin to manoeuvre but still able to credibly brandish the mantle of legality.

This is an appealing theoretical rendering of executive power. It captures the reality of executive dominance that characterizes so many systems of government, while also acknowledging the important role law plays in constraining the executive. Indeed, at a high level, it maps quite nicely onto the circumstances of my home jurisdiction, Canada.

In adopting this view of executive power, Cohn dismisses other models of executive power, including “the imperial executive model,” under which “the executive [is] dominant in both constitutional and political spheres”. She argues that the imperial model fails to give sufficient weight to the constitutional value of legality. In a logical extension of her position, Cohn concludes the book by arguing that courts have an important role to play in ensuring that the executive’s actions are consistent with the state’s commitment to the rule of law.

Cohn’s book advances the scholarship in several important ways. First, it claims important theoretical space for the executive in a domain that continues to prioritize the study of courts and, to a lesser extent, legislatures. Second, it captures the complexity of the intra- and inter-branch dynamics with which the executive must contend and encourages scholars to explore this complexity rather than grasp for simpler, but less illuminating, theoretical accounts. And third, it makes important headway in describing the inner workings of a branch of state that can be very difficult to understand because so much of its work occurs behind closed doors.  

While I largely agree with the outline Cohn sketches, I do have some quibbles with the particulars. In this blog post, I discuss two questions that I am left reflecting on after reading the book. The first is what it means to say that the executive is dominant “over” or “beyond” law. I take Cohen to mean that there is a pervasive risk that the executive will act in ways that are insufficiently authorized and constrained by law – Cohn also uses the term “alegality” to describe the phenomenon she is describing. While there is no doubt truth to this observation, I would frame the issue somewhat differently. To my mind, the major tension that exits within executive-dominated states like Canada results from the executive having so much control over the content of the law. In this way, the executive is not above the law – though it may sometimes act unlawfully – but it has a near-authoritative say on what the law is in a range of contexts. This rendering has different implications for the rule of law, though it certainly does not eliminate rule of law concerns.

There are at least three ways in which the executive plays a dominant role in prescribing the content of law in Canada. First, it is responsible for conceptualizing and drafting legislation. Policy ideas originate from the political executive and from the public service. Once a decision is made to pursue legislation, the Minister, their staff and public servants are involved in shaping a bill from conception to final draft. Cabinet approves the final version of a bill, and after that point, the government is usually reluctant to agree to major changes. The emergence of Canada’s “independent” Senate may have introduced some unpredictability into the legislative process, but it remains rare for significant amendments to be made in either the House of Commons or the Senate. This means that the version of the bill drafted by the executive usually survives the legislative process more or less intact.

Second, in many contexts, regulations are required to give effect to a law. The scope of the executive’s regulation-making authority can be quite broad. As a majority of the Supreme Court of Canada explained in the recent Greenhouse Gas Pollution Pricing Act References, “it is common for a statute to set out the legislature’s basic objects and provisions, while most of the heavy lifting [is] done by regulations, adopted by the executive branch of government under orders-in-council.” In some circumstances, Parliament may even delegate the power to make regulations that alter the content of primary legislation. Where extensive regulations are promulgated, the executive’s imprint on the overall legislative scheme may prove to be more consequential than Parliament’s.

Third, the executive plays a significant role in interpretation, both of regular law and constitutional law. Interpretation is an intrinsic component of the executive’s obligation to implement the laws Parliament enacts. And just a court’s interpretation fleshes out the meaning of legislation, interpretation by the executive contributes to the development of new legal meanings and to the elaboration of new legal standards.

What are the rule of law implications of this rendering of the executive’s power “over” law? To my mind, these observations suggest that alongside the pervasive risk that the executive might flout the law (particularly when no one is looking), scholars must also acknowledge that the executive is often operating within the law, albeit a law they have largely crafted themselves. In this respect, the executive does occupy a middle ground, but perhaps a slightly different one than Cohn suggests. It also means that it is important for the executive to have an internalized commitment to legality and a strong institutional rudder. As I explain now, there may be fewer opportunities for either the legislature or the courts to review the executive’s interpretations than is generally assumed.

My second and final point concerns the court’s role in enforcing the dictates of legality. What is to be done about the fact that in many circumstances, recourse to judicial review is not realistically available? In a wide range of circumstances, the executive makes decisions or offers interpretations of the law that will never be reviewed, either by the legislature or the courts. This state of affairs cannot easily be altered by advocating for more interventionist courts; it is deeply embedded in the structure of executive decision-making. Alongside the usual modes of accountability, then, it seems clear that we need to consider what mechanisms of intra-branch accountability might look like.

There are many more interesting aspects of Cohn’s book that I cannot touch on here, including her fascinating typology of forms of “fuzziness” or “fuzzy law,” each of which deserves further reflection. I look forward to continued discussions about this important book.  

Vanessa MacDonnell is an Associate Professor at the University of Ottawa Faculty of Law and Co-Director of the uOttawa Public Law Centre. She is grateful to Elizabeth Sanderson, John Mark Keyes and Peter Oliver for conversations about some of the ideas in this blog post.