Post/PLSC 3303 Course Outline PDF

https://policyoptions.irpp.org/wp-content/uploads/sites/2/2021/05/Coping-with-COVID-requires-a-return-to-co-operative-federalism.jpg POST/PLSC 3303 Department of Economics Justice & Policy Studies  COURSE COMPONENTS PARTICIPATION...

https://policyoptions.irpp.org/wp-content/uploads/sites/2/2021/05/Coping-with-COVID-requires-a-return-to-co-operative-federalism.jpg POST/PLSC 3303 Department of Economics Justice & Policy Studies  COURSE COMPONENTS PARTICIPATION 15% MIDTERM EXAMINATION: 25% ESSAY: 30% FINAL EXAMINATION: 30% * Review the Course Outline and assignment guidelines for detailed requirements.  COURSE COMPONENTS PARTICIPATION (15%) Attendance, contributions to in-class and online discussions based on readings. MIDTERM EXAMINATION (25%) A study guide will be posted on D2L. Scheduled for February 12, 2025.  COURSE COMPONENTS BRIEFING NOTE (30%) Due March 21, 2025 Your topic, reflecting on themes of the course, will be based on a list of topic ideas posted on D2L Proposal due February 28, 2025 FINAL EXAMINATION (30%) A study guide will be posted on D2L. Registrar scheduled  COURSE COMPONENTS READINGS Some of the readings in each section will be assigned to different groups who will lead discussions and provide critical evaluation.  WHAT IS FEDERALISM? What are key features of Canadian federalism? What is federalism? Federalism Divides and assigns powers to more than one level of government Is a formal structure where more than one level of government represents and is responsible to and for the same people within the same territory (i.e. country). Is the formal division of powers between the central government and regional governments of “sub-national units”. What are some of the names for such sub-national units?  WHAT IS FEDERALISM? Federalism Divides and sometimes shares sovereignty The jurisdiction/powers of each level are distributed in a written constitution For example?  WHY FEDERALISM? Federalist 10 James Madison (1751-1836) What were the Federalist Papers? Alexander Hamilton, James Madison, John Jay Who was Publius? What are the advantages of a federal system? Democratic protections Against ‘faction’ https://guides.loc.gov/federalist-essays-in-historic- newspapers/authors#:~:text=Alexander%20Hamilton%20recruited%20Madiso Inadequate representation n%20and,the%20founding%20of%20the%20Roman  WHY FEDERALISM? Federalist 10 James Madison What is the problem of ‘faction’? How does it relate to democratic freedom? Tyranny of the majority ‘the superior force of an interested and overbearing majority’ ‘a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.’ https://images.saymedia- content.com/.image/t_share/MTc0NDUyOTAxOTA0MDAwNjQ2/j ames-madison-biography-fourth-president-of-the-united- states.jpg  WHY FEDERALISM? Federalist 10 James Madison What are the solutions for ‘faction’? 1. Remove its causes Destroy liberty Give everyone the same opinions, passions, interests 2. Control its effects A federal republic https://cdn.britannica.com/50/2250-004-1F1AED00/detail-James- Madison-oil-painting-Asher-B-1833.jpg Large national government with representative democracy  WHY FEDERALISM? Federalist 10 James Madison Large national government with representative democracy The size and diversity of a large country will make it more difficult for any faction to dominate. Local governments will be more sensitive to communities, but prevented from faction or tyranny Representative democracy will promote statespeople with ‘enlightened views and virtuous sentiments’ https://d2rcltyodjzmvo.cloudfront.net/wp- content/uploads/2021/03/13213625/RR-1979.0035_01.jpg Federalism balances WHY FEDERALISM? Benefits of size Prevention of tyrannical government Structurally [size + diversity and by distributing/limiting power Constitutional limits/protections Economies of scale United front Responsiveness to local communities Equity among constituent units https://encrypted-tbn0.gstatic.com/images?q=tbn:ANd9GcR29Nz5rLBoFyl-7UyPdkDrn35-C8d_YGfvJQ&s Federalism FEDERALISM - DEFINED “A federal government exists when the powers of government are divided substantially according to the principle that there is a single independent authority for the whole area in respect to some matters, and that there are regional authorities for other matters, each set of authorities being coordinate with, and not subordinate to, the others within its own prescribed sphere.” Australian political scientist K.C. Wheare https://static.wixstatic.com/media/65ef01_edff9066f36c4e95b23ee29fb794fcf5~mv2.jpeg/v1/fi ll/w_569,h_535,al_c,lg_1,q_80/65ef01_edff9066f36c4e95b23ee29fb794fcf5~mv2.jpeg  FEDERALISM ▪There are about 25 federal states around the world. ▪ Canada was the 6th modern federation in history, after the USA, Mexico, Venezuela, Switzerland, and Argentina. ▪ The USA was the first modern federal system ▪ Others include Australia, Germany, Belgium, India, Brazil… https://50shadesoffederalism.com/wp-content/uploads/2017/11/Cover-banner-Sean.jpg ▪Federations can be presidential republics or parliamentary democracies or a mixture.  CONTINUUM OF CENTRALIZATION Separation Integration DECENTRALIZED CENTRALIZED Sovereign Confederation Federalism Devolution Unitary State States Central Sovereignty shared Constituent No Constituent No central government with between central Governments exist, Governments government sovereignty and constituent but sovereignty retained by governments monopolized by constituent central governments government https://stanislauscelestine.wordpress.com/wp-content/uploads/2018/10/img_9476.jpg  UNITARY VS. FEDERAL COUNTRIES Federal States Unitary States  FEDERALISM Reasons why federalism was suited to Canada: I. Decentralization as an alternative to a single, remote national government. II. Advantageous where linguistic, religious, or cultural diversity are factors. III. Provided a check on government power. https://50shadesoffederalism.com/wp-content/uploads/2017/11/Cover-banner-Sean.jpg  WHY FEDERALISM WAS ADOPTED IN CANADA The ‘Fathers of Confederation’ chose federalism in Canada for several reasons: 1. To manage francophone and anglophone tensions – especially Quebec’s concerns about losing power to the federal government 2. To protect the Maritimes’ interests  WHY FEDERALISM WAS ADOPTED IN CANADA 3. The member colonies had experience with self- governance and had developed their own political cultures which they wanted to preserve and not risk losing to the federal government  Federalism allowed autonomy and diversity  FEDERALISM in CANADA – MODELS/ historical variants Models used to define Canadian federalism (Bakvis & Skogstad) ▪ Watertight compartments (1867 – 1930s) ▪ Consultation & coordination (1930s – 1950s) ▪ Cooperative federalism (1950s – 1960s) ▪ Competitive federalism (1970s – 1980s) ▪ Collaborative federalism (1990s – 2000s) ▪ Open federalism (2006-11) ▪ …  FEDERALISM in CANADA – patterns ▪These models operate within over-arching patterns of federalism ▪Interstate federalism – formalized relations between national and provincial governments resembling relations between countries. ▪Intrastate federalism – where federal concerns are addressed via national government institutions. (examples from other countries?) ▪Executive federalism – where the executives of both levels of government (ministers & their officials) compete & collaborate. ▪ Due primarily to our Westminster-style parliamentary system, “executive federalism” has been the prevailing pattern in Canada.  FEDERALISM - objectives ▪One major objective of federalism is to strike a jurisdictional balance between 2 levels of government. ▪So, federalism is essentially a political arrangement (a form of contract) that institutionalizes diversity. ▪To put it another way, federalism is an arrangement that builds nationhood and national unity (via levels of government) where none is present naturally. ▪Federalism then, is a construct; that is to say, it is an artificial political and governing structure. FEDERALISM – constitutional parameters  FEDERALISM – constitutional parameters ▪ The ‘matters’ K.C. Wheare indicated earlier are distributed via a written constitution, which specifies which level gets to do what. ▪ Also, federations typically have a constitutional principle (or doctrine) of paramountcy.  FEDERALISM – constitutional parameters ▪ Paramountcy in Canada means that, in the event of a clash between similar federal and provincial powers (i.e. laws covering the same jurisdiction), the federal power as indicated in the constitution prevails.  FEDERALISM – constitutional parameters ▪ Our Constitution Act, 1867 (the BNA Act) contains these 2 principal division of powers sections: Section 91 enumerates the powers of the federal government. Section 92 enumerates the powers of provincial governments.  FEDERALISM – constitutional parameters Powers of the Parliament 91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,-- 1. Repealed. 1A. The Public Debt and Property. 2. The Regulation of Trade and Commerce. 2A. Unemployment insurance. 3. The raising of Money by any Mode or System of Taxation. 4. The borrowing of Money on the Public Credit. 5. Postal Service. 6. The Census and Statistics. 7. Militia, Military and Naval Service, and Defence. 8.The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada. 9. Beacons, Buoys, Lighthouses, and Sable Island. 10. Navigation and Shipping. 11. Quarantine and the Establishment and Maintenance of Marine Hospitals. 12. Sea Coast and Inland Fisheries. 13. Ferries between a Province and any British or Foreign Country or between Two Provinces. 14. Currency and Coinage. 15. Banking, Incorporation of Banks, and the Issue of Paper Money. 16. Savings Banks. 17. Weights and Measures. 18. Bills of Exchange and Promissory Notes. 19. Interest. 20. Legal Tender. 21. Bankruptcy and Insolvency. 22. Patents of Invention and Discovery. 23. Copyrights. 24. Indians, and Lands reserved for the Indians. 25. Naturalization and Aliens. 26. Marriage and Divorce. 27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters. 28. The Establishment, Maintenance, and Management of Penitentiaries. 29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. And any Matter coming within any of the Classes of Subjects enumerated in this section shall not be deemed to come within the Class of Matters of a  FEDERALISM – constitutional parameters Powers of the Parliament Exclusive Powers of Provincial Legislatures. 92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,-- 1. Repealed. 2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes. 3. The borrowing of Money on the sole Credit of the Province. 4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers. 5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon. 6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province. 7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals. 8. Municipal Institutions in the Province. 9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes. 10. Local Works and Undertakings other than such as are of the following Classes:-- (a) Lines of Steam or other Ships, Railways, Canals, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province; (b) Lines of Steam Ships between the Province and any British or Foreign Country; (c) Such Works as, although wholly situate within the Province, are before or after the Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces. 11. The Incorporation of Companies with Provincial Objects. 12. The Solemnization of Marriage in the Province. 13. Property and Civil Rights in the Province. 14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts. 15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section. 16. Generally all Matters of a merely local or private Nature in the Province.  FEDERALISM – constitutional parameters EXPLICIT POWERS s.91 Trade & Commerce (2) s.92 (16) “Generally all matters of a merely local or private Taxation (3) nature in the province.” Militia, military, naval service & defence (7) Direct taxation (2) Currency & coinage (14) Borrowing money on provincial credit Public debt/ credit/ property (4) Postal service (5) Licences for raising of provincial revenue Navigation & shipping (10) Property & civil rights (13) Banking (15,16) Administration of justice in the province (14) “Indians & their lands” (24) Prisons Marriage & divorce (26) Health & Welfare (7) Hospitals Criminal law (27) Peace, Order and Good Government [POGG] Provincial control of municipal institutions (8) Education (s. 93) Natural resources: – s.109 Control of provincial lands mines, minerals & royalties – s.92(5) Control of public lands belonging to the province & its “timber & wood”  FEDERALISM – constitutional parameters ▪ There are other sections giving the provinces jurisdiction over renewable resources and education. ▪ There are also concurrent jurisdiction sections where both Ottawa and the provinces have jurisdiction. ▪ Two examples: immigration and agriculture.  FEDERALISM – constitutional parameters ▪ The BNA Act/CA 1867 reflects an intention for the federal government to be the dominant power. ▪ That intention is found in Ottawa’s “4 autonomous powers” contained in the CA 1867. Four Autonomous Powers of the federal government over provincial governments 1. Section 90 of the BNA/CA 1867: federal powers of reservation [last used 1961] re: provincial laws, and 2. disallowance [last used 1943] of provincial laws. 3. Sections 91(29) and 92(10)(c) – federal declaratory power over provincial legislation. [last used 1961] 4. The preamble to section 91 is where we find the P.O.G.G. power - peace, order, and good government.  Four Autonomous Powers ▪ Of the 4 autonomous powers, only POGG is still active. ▪ The other 3 powers are referred to as dormant or spent.  Four Autonomous Powers ▪ POGG, known also as the residual clause, has been limited by the courts to 3 contingencies: ▪ emergency use; ▪ to fill in the gaps where the jurisdiction is not settled; ▪ when an action or undertaking is considered a “national concern.”  Basic Constitutional Parameters ▪ Gaps ▪ between the “jurisdictional map” provided by the Constitution, and what actually goes on in governments. ▪ where the federal/provincial government’s actions must be compliant with the Charter, but in crafting legislation, they sometimes push the envelope, knowing that any possible restriction by the courts may take years to establish.  Basic Constitutional Parameters ▪ Scholars argue that the overlapping powers and the financial dominance of the federal government currently makes the division of powers sections a poor guide to determining which level does what within the federal system.  Basic Constitutional Parameters ▪ So, many of the lines are now blurred between which level does what. ▪ As well, though there is a significant degree of collaboration between the two levels, there’s also conflict between them.  Basic Constitutional Parameters ▪ Such conflicts can end up with the Supreme Court of Canada (SCC) being called upon to decide intergovernmental disputes via the process of judicial review of the constitution. ▪ Prior to 1949, the highest court reviewing such matters was the Judicial Committee of the Privy Council [JCPC] ▪ Courts provide constitutional protection of rights + clarity/protection of the division of powers ▪ Debates persist between parliamentary and judicial supremacy.  Federalism – basic types 1. The American model – presidential republic. 2. The Canadian model – parliamentary democracy. 3. The German model – traditional continental European with a council as 2nd chamber. 4. The European Union (EU) model – actually, a confederate, not federal, structure.  Federalism – complexities Bicameral Legislatures “… restraint upon the pure democracy of majority rule…” E.g.: Canadian Senate, German Bundesrat, United States Senate Executive Federalism Seeks to leverage collective power of regional governments E.g.: First Ministers Conferences Democratic questions Fiscal Federalism How public finances are allocated – often contentious Often blurs accountability and responsibility – democratic challenges Asymmetrical Federalism Where different regional governments are more sovereign/ have more powers than others E.g.: Quebec, Ontario  Federalism – complexities Some areas where governments can act autonomously where governments are interdependent – areas where powers overlap intersect conflict or contradict environment? healthcare? examples? negotiation/bargaining/diplomacy – compromise, cooperation & contention “sunny ways” – Justin Trudeau borrowed from Wilfred Laurier’s preferred approach to the Francophone language dispute in Manitoba overt challenges – political & legal  Federalism – contested concepts Provincial equality vs cultural dualism Symmetry vs asymmetry Does not reflect First Nations – unclear how federalism fits diverse visions of how to relate with the Canadian State Indigenous people living off-reserve economic balance complications – as elsewhere in our federation Autonomy vs interdependence At its best can establish universal standards and protections while allowing flexibility in program design/delivery – “Althusian compromise” e.g. healthcare e.g. environment