Presidential and Prime Ministerial Administration

President Obama's apparent determination to wield executive power to achieve his ends has provoked much discussion this week.

The tendency for leaders to use various methods other than legislation to fulfill their objectives should be familiar to Canadian readers. Minority governments in parliamentary systems are in much the same place as an elected President who does not control the legislative branch(es) of government. They have to get their way through other means.

Quebec's current minority administration is a good example. A major plank in its electoral agenda was to cancel a proposed fee hike for university students. It did so, but by decree (executive order, if you prefer) rather than by legislation, because it would not have commanded a majority in the Assemblé Nationale. (The next time someone has enough support to hike tuition in Quebec, they probably should do it by legislation!)

As has been noted in the context of President Obama, there are many ways for the executive to get its way, ranging from formal orders all the way down to informal pressure. The channels of government influence are often murky. Consider the Quebec government's approach to the Conseil du statut de la femme, an independent agency which advises on matters relating to equality rights. Last year, the Conseil announced that it was opposed to the government's proposed 'Secular Charter'. The government appointed four new members (while insisting that the Conseil was not independent because the word "independent" does not appear in its constitutive statute). Lo and behold, the Conseil recently announced its support for the Charter!

So not only do the available means vary greatly, but they may be relied upon by Prime Ministers as much as by Presidents.

Enforcement Discretion: Thinking about the Executive, the Rule of Law and the Separation of Powers

The topic of enforcement discretion is the subject of an interesting series of posts by Zachary Price over at the Volokh Conspiracy. The impetus for Price's series and his underlying article ("Enforcement Discretion and Executive Duty") comes from several recent American episodes, such as President Obama's decision not to enforce certain provisions of the Affordable Care Act (see e.g. here), the policy not to pursue certain breaches of federal drug laws and the policy not to seek minimum sentences for some drug offences.

At first blush, this looks much like the dispensing power that common law jurisdictions dispensed with many centuries ago. Price argues, however, that there are constitutional provisions that give the American executive discretion to refuse to enforce laws on a case-by-case basis though not as a matter of general policy. My interest is less in the specifics of U.S. constitutional law than in the generalities of enforcement discretion.

Can Omar Khadr Apply for Habeas Corpus?

My colleague Stéphane Beaulac raises a question that has not (it seems) had any consideration: can Omar Khadr, now back in Canada, apply for habeas corpus? Khadr can apply for a conditional release next year, but perhaps he will not have to wait that long.

Some Justiciability Hypotheticals

Blogging has been light recently: teaching, writing and administrative commitments, allied to some technical problems, have been holding me up.

Administrative Law and Assange

Julian Assange is currently hiding out in the Ecuadorian embassy, where he may be for some time. The British government's suggestion that he could be arrested there is wide of the mark, however.

Of prerogatives, rules and guidance

The UK Supreme Court decided two very interesting immigration cases the week before last, touching on two very interesting issues.

Kyoto, the Prerogative and Unwritten Constitutional Principles

My colleague Daniel Turp led a spirited challenge to the federal government's decision to withdraw from the Kyoto Protocol. Spirited and all as the challenge was, it failed before the Federal Court.