Lagasse and MacDonnell: Constitutional hardball doesn’t always pay off

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Prime Minister Doug Ford learned an important lesson this week. That is, playing constitutional hardball can give your opponents more momentum and weaken them politically.

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The term “constitutional hardball”, coined by American legal scholar Mark Tashnett, refers to the use of laws or institutions in ways that are technically permissible but violate political norms. The Ford government’s decision to impose contracts on education aid workers and use the despite clause to prevent them from striking is an example of handball. (CUPE) would be forced to abandon the strike and accept new contracts on government terms. can be said to have been strengthened.

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Ford’s approach backfired and they had no choice but to withdraw. Future governments will think twice before using the nevertheless clause to quell strikes during labor negotiations.

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The federal government must also draw lessons from Ford’s experience. Both Quebec and Ontario have used the Despite Clause to preemptively avoid Charter challenges to legislation, prompting commentators to give Prime Minister Justin Trudeau federal powers to ban provincial legislation. We are calling for it to be reinstated. The denial has also been proposed as a means of blocking the Alberta Sovereignty Act proposed by Alberta Premier Daniel Smith.

However, the use of powers of disapproval is itself a kind of constitutional hardline. Yes, the power still exists in the Constitution, but its exercise would violate strongly established norms regarding the nature of Canada’s federalism. Just like he faced the wall, Trudeau could face 10 rebellious prime ministers if he doesn’t recognize state law.

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The risks involved in playing hard give us another lesson. Our legal constitution coexists with our political constitution with its own rules and expectations. Just because something can be done legally doesn’t mean it can or should be done politically. In Ford’s case, his reckless use of the clause without proper discussion and prior judicial ruling that the legislation was unconstitutional fueled the view that the very existence of the clause represented a flaw in the constitutional order. .

It also lends credence to the view that politicians cannot be trusted to take their constitutional rights seriously. had a solid constitutional basis. In fact, with a new majority in the Ontario Legislature, Ford could have argued for a politically justifiable use of the clause if denial had completely collapsed and schools were closed for an extended period of time.

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This is, nevertheless, a point that critics of the clause must also recognize. This clause exists for a good reason and is not going anywhere. Seeking a court ruling nullifying the clause would provoke judicial critics who see it as a means of balancing the powers of the legislative and judicial branches. Given that most persistent arguments have determined that it can be exercised at any time as long as proper procedures are followed, trying to make it a dead letter will not work.

Those wishing to restrain the use of this clause should seek to refine the political and constitutional norms surrounding its use and meaning. Ford’s inappropriate use of clauses provides an opportunity to start a better discussion about what these norms should be.

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Despite the clause, it is important to note that playing constitutional hardball may sometimes pay off. It determined that Congressional prerogatives could be relied upon to avoid appearing before the committee reviewing the invocation of the Emergency Act. Other abuses of the privileges of .

However, like clauses, parliamentary privilege exists for good reasons, particularly to ensure that legislators are able to perform their constitutional functions. Nevertheless, as in the context of the clause, the best way to reduce abuse of these privileges is not to change the Constitution, but to strengthen the norms of the political constitution. That said, a wave of political opposition may be more effective than the technical legal arguments advanced in court.

Philippe Lagasse Political Scientist and Barton Chair of the Norman Patterson School of International Relations, Carleton University. Vanessa McDonnell Professor of Law and Co-Director of the Ottawa Public Law Center.