By Sujit Choudhry (Center for Constitutional Transitions)
Who speaks for Canada? For the past fifty years, during both the expansion and the retraction of the Canadian welfare state, the politics of social policy has revolved around this single question. In this article, I step back from the politics of social policy to reflect on the constitutional framework within which that politics occurs. My focus is the scope of the federal government’s jurisdiction over social policy. A distinctive feature of Canadian social policy since World War II has been the central role played by the federal government in the development of the Canadian welfare state, now commonly referred to as the social union. The federal role has been all the more remarkable in light of the constitutional limits on federal jurisdiction over social policy. Although jurisdiction over social policy has long been and continues to be disputed by both levels of government, I argue that underlying the politics of social policy lies a set of legal assumptions. These assumptions hold that the Constitution draws a sharp distinction between jurisdiction over the financing of contributory social insurance and social services, and jurisdiction over their design and delivery. Short of explicit constitutional amendment (as occurred in the case of unemployment insurance and pensions), federal jurisdiction is thought to be confined to the former realm, largely exercised through the use of the so-called federal spending power, whereas provincial jurisdiction encompasses both the former and the latter areas. In this article, I question this assumption, and argue that constitutional doctrine provides for federal jurisdiction over subject-matters where there is the risk of races to the bottom.

Source: SSRN