The Constitutional Status of the Administrative State

Abstract

This paper considers the constitutional status of the administrative state. It argues that, after decades of growth in size, reach, and power, the administrative state can now be understood as an architectural feature of the Canadian constitution. To make this argument, the paper first provides an account of the concept of architecture in Canadian constitutional law and the analytical framework it offers for thinking through the status question. It then looks to developments in Canadian public law that shed light on the status of the administrative state. The analysis focuses on three such developments: the expansion of the role of administrative decision-makers to exercise constitutional jurisdiction and duties; the narrow limits on administrative jurisdiction and design, as facilitated through judicial interpretation of section 96 of the Constitution Act, 1867; and the well-established judicial posture of deference to administrative decision-makers. These developments not only reflect the essential role that administrative decision-makers have come to play in contemporary Canadian government, but also the impact of the administrative state on the constitutional position and responsibilities of the judiciary, the executive, and the legislature. With implications across regulatory sectors and branches of government, and in order to better understand the flattening structure of Canadian constitutionalism, this paper ultimately calls for a shift out of the paradigm of growth that has anchored much administrative law discourse and into a paradigm shaped by an interest in the status of the administrative state in the public order.