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The New Sovereign of Alberta
A bill proposes to give Premier Danielle Smith and her Cabinet extraordinary powers. It's unconstitutional and it's a mess. But no matter what happens, Smith wins—for now.
Bi-weekly Thursday posts are meant to be subscriber-only, but this issue is so important I decided to make it available to all and to release it early. I hope my paid subscribers understand. I hope some free subscribers consider converting to paid. And I hope everyone enjoys reading about the Alberta amateur hour gong show, if one can indeed “enjoy” reading about such a thing.
I meant to do a video answering reader questions this week for my Thursday post, and then Danielle Smith and her United Conservative Party government in Alberta introduced Bill 1. My god, I have some thoughts to share. Formally titled the Alberta Sovereignty within a United Canada Act, the bill, if passed would permit the Cabinet to rule by decree, circumventing the legislature and stomping on the face of parliamentary democracy. It would also set the record for most ironic bill name. But that’s another matter.
I won’t get into a detailed breakdown of the bill here. For more on what it entails, political scientist Lisa Young, of the University of Calgary, has a helpful post on the bill and its problems in. University of Alberta law professor Eric Adams also has a must-read piece over at CBC. Add those to your reading list. For now, I’m going to dig into a broader issue.
L’état, c’est moi
Smith’s executive overreach was immediately and universally condemned. Before it was introduced, Jason Kenney, former premier of the province who resigned on the same day the bill was introduced, called the idea of the act “catastrophically stupid.” But it’s worse than that. It’s dangerous.
As Jason Markusoff writes for CBC, “Smith's first bill wouldn't automatically nullify, squash or ignore federal laws in this province. It takes the legislature passing a special motion that opines about a specific Ottawa-related grievance, before the new extraordinary cabinet superpower detailed in the bill take effect.” But that limit ought to be of little, if any, comfort. Markusoff adds “Once the UCP-dominated legislature approves a resolution that beefs about — say, federal methane regulations for fertilizer — there's nothing in Smith's bill that constrains the secret law-rewriting powers of the premier and her lieutenants.” Not ideal.
In his piece, Markusoff references the sovereign-like authority contained in the bill, as many have. The comparison is unavoidable. Indeed, the bill includes what’s known as a Henry VIII clause, permitting the executive extraordinary power, the sort the parliamentary democracies have evolved to limit in general and remove from the sovereign in particular. (For more on Henry VIII clauses and how dangerous they are, see this post.) To have struggled for centuries to transfer power away from the hands of the one and into those of the many only to have the likes of Danielle Smith try to take it back is all a bit much. And in case it wasn’t clear, the very name of the clause, Henry VII, ought to indicate just how heavy-handed a thing it is. The man was known neither for subtlety, nor for respect for the commons.
Once law, and it will surely become law, Smith’s act is headed for the courts. There is zero doubt about that. What then? Surely it must be quashed, right? Emmett Macfarlane, political science professor at the University of Waterloo and courts expert, calls it “the most unconstitutional bill in Canada’s modern history” in his Substack post for. Indeed, it is. In fact, it’s an executive coup.
As Macfarlane notes, “Bill 1 gives a free hand to the government to change any law on the books and to order “provincial entities” - which include any provincial agencies or institutions (municipalities, universities and even the police!) - to ignore or violate federal law, even criminal law.” He emphasizes the last line, asking us to read it again. And we should. Smith’s bill is bananas. B-A-N-A-N-A-S.
Pardon me for quoting Macfarlane at length, but what he writes is important. He summarizes Smith’s move as “a full-frontal assault on not only the very idea of federalism and the constitutional division of powers but also on responsible government and representative democracy, the lynchpins of democracy in a parliamentary system that rest on the legislature not abdicating its roles in either holding the government to account or, y’know, being the body that legislates.”
So, there is no doubt that the bill is unconstitutional, just as there is no doubt it’s an attack of democratic institutions and norms. What may be in doubt, however, is how it might be undone. Lyle Skinner, a constitutional lawyer who knows more about these matters than I could ever hope to, suggests there may be a longer and more complicated fight ahead than people are bargaining for. “Here is the thing,” he wrote to me on Twitter. “[I]t looks like the act is drafted in a manner where the most constitutionally problematic issues will occur via Cabinet decree rather than the Act itself. So a judicial whack a mole where one has to challenge multiple regulations.”
It may be a long fight indeed. But what happens in the meantime?
The Revenge of Western Populism
Whatever happens, Smith has set herself up to win—at least for now. Drawing on a long history of populist Western grievance politics that stretches back to the Social Credit days of the early-to-mid 20th century and the Reform Party movement that emerged in the latter half of that century, Smith is pitting a besieged but hard-working heartland against a cold, calculating, out of touch elite. It’s Alberta versus Ottawa.
Reactionary grievance politics have played well in Alberta for a long time. Smith, whose UCP government is behind in the polls to Rachel Notley’s New Democratic Party, is now betting her extraordinary, heavy-handed bill will rile up the elites and Ottawa, giving her at least a narrative to work with as she plays Protector of Alberta.
In the short term, Smith wins either way. She gets to govern by decree for a time while the courts sort out the law. At the same time, she gets to play Alberta sovereign. If she loses at court, she has a chance to double down on the populist grievance narrative heading into the spring 2023 election (or an earlier one, if she finds it advantageous to head to the polls ahead of time).
Will Albertans buy her nonsense? Could she and her UCP government hold on to power. If past is prologue, there’s a chance. As I noted, the province has a long history of populist grievance politics that resonate with and mobilize residents. Moreover, it’s boom time in Alberta’s favored industry, oil and gas. The province has a massive surplus and Smith is handing out $2.4 billion in inflation relief. An Alberta versus Ottawa gambit might just work, at least for the time being.
“Work” is a relative assessment, however. Eroding democratic norms catches up with you eventually. For one, it makes for messy, siege politics where anything can happen. For another, breaking norms makes a rod for your own back. Eventually your opponents may end up with the same powers and latitude you’ve given yourself and an incentive to play by the rules you’ve set. That’s why norm erosion is so dangerous; it encourages a race to the bottom. Short-term gains make for long term pain. But Smith and the UCP don’t seem the type to think that far ahead.
A Trap for the Feds
For now, in Ottawa, Prime Minister Justin Trudeau isn’t taking the bait. He’s noted the danger of Smith’s move and the concern it has raised. But he’s staying on message about delivering for Albertans anf for Canada. Calls for federal intervention and even disallowance of provincial law have started. While such moves might be cathartic, they could also bring about a constitutional crisis greater than which Smith is marching towards. Indeed, they might play into her hands.
The decision whether and how the federal government ought to engage should be made with great care and by weighing a utilitarian calculus of whether such action is likely to produce more harm than good in the short- and long-term. Something like expediting a reference decision, as Macfarlane notes, could be one way to do something without going nuclear. Still, Smith will no doubt use any move as proof that it’s Alberta versus the world and she’s the only one who can protect the province.
Smith has undertaken a shameful gambit. Whether it will work, and for how long, will be determined in the course of time. Ideally, the courts and a chorus beyond the federal government will be able to do the work of bringing the UCP’s attack on democratic norms to an end. Ideally, that attack will fail and be relegated to the history books as another embarassing blunder by a desparate politician. For now, all eyes ought to remain on Alberta and observers should continue to call out the executive coup and assault on parliamentary democracy. This one certainly will.