11/04/2026
About last night… a blue wave but what will this mean for Canada/US trade?
This is usually reserved for but good to reflect today. This is a question of 𝗮𝘂𝘁𝗵𝗼𝗿𝗶𝘁𝘆 and 𝗽𝗼𝘄𝗲𝗿.
In order to understand how an Executive Order might be changed, we need to understand the mechanisms and history behind it.
Donald J. Trump implemented tariffs through an Executive Order, which is very similar to the process of an Order in Council made by the Governor General under direction by Cabinet.
In both Canada and the United States, executive instruments can have the force of law without a new bill being debated and voted on by the legislature. They both are established under authority previously granted by the legislature.
Despite the legislation that support the instruments they are, in my view, a circumvention of the proper democratic process. Executive orders and orders in council are not inherently unconstitutional, but broad delegations of legislative authority can allow governments to bypass the ordinary democratic process through which laws are debated, amended, and approved.
For example, Parliament might pass legislation authorizing Cabinet to establish regulations governing a particular industry. Cabinet can then make those regulations through an order in council without returning to Parliament for every regulatory change. Canadians don’t even hear about most Orders in Council, let alone their details.
But what happens when that delegation becomes so broad that the executive effectively makes major policy decisions without meaningful legislative scrutiny? This raises serious constitutional/democratic accountability questions.
In Canada, the practice of these orders are a remnant from the monarchical system where the crown had executive authority. The modern legal framework predates the 1867 Constitution Act through the use of colonial councils, and the official records show that orders in council were used starting the first day of Confederation.
Technically, this doesn’t give unlimited authority to the Prime Minister and the Cabinet, as it is the Governor General that has to sign off on the recommendation of Cabinet. Orders in Council derive their authority from legislation or, less frequently, the royal prerogative. The historical record shows that this check on power is merely a formality even though there are strong conventions that support it. Since Confederation, refusals of Orders in Council that have been extremely limited.
The House of Commons can initiate legislation to override an order in council, but it cannot do it by motion alone. Parliament can pass a new law that overrides the order, but it has to pass both houses and get Royal Assent. Alternatively, under the Statutory Instruments Act, a joint committee can recommend disallowance of a regulation, but both chambers have to agree.
In the US, the Constitution does not expressly define executive orders or grant the president a general executive-order power. However, Article II establishes presidential executive authority, and individual orders must rest on constitutional or statutory powers.
A Democratic Congress cannot unilaterally repeal an Executive Order. An Executive Order can be repealed by the President themselves, or Congress can pass a law to override it, but that law is subject to a Presidential Veto. Such a veto is null when a law is passed through a supermajority, which means least two-thirds of members voting in both the House of Representatives and the Senate, provided a quorum is present.
With tariffs it’s even trickier because Congress delegated some of that authority to the president through prior laws (the Tariff Act of 1930 (Smoot-Hawley) under Hoover, the Trade Expansion Act of 1962 by Kennedy, the Trade Act of 1974 under Ford, and International Emergency Economic Powers Act under Carter in 1977). However, it was the Reciprocal Trade Agreements Act of 1934 under Roosevelt where Congress delegated tariff negotiating powers to the President.
However, we should remember that in the brilliance of the Framers of the Constitution, there are three branches of the US government. The Legislative, the Executive, and the Judiciary, which becomes the third check on power. The February 20, 2026 Supreme Court decision struck down Trump's tariffs imposed under the International Emergency Economic Powers Act (IEEPA), but it did not eliminate his other statutory tariff powers.
As of the timing of this post, the Democrats have been declared a majority in both the House and the Senate (effective January 3, 2027), but not a supermajority, unless Republicans vote with their opponents on specific issues. Seeing the Republicans voting to cancel the tariffs will be a long shot and a low priority for some representatives, notwithstanding the likelihood of being subject to a Presidential Veto.
At what point does delegated authority stop being the implementation of legislation and become lawmaking by the executive?
America was founded on the principle that there is no king, queen or czar in charge, meaning the power is vested in the people and not the legislators. When Parliament or Congress delegates authority so broadly that the executive can effectively determine major public policy without returning to elected representatives, we ought to question whether the democratic process is functioning as intended.
After all, the purpose of representative government is not simply to elect someone who exercises power on our behalf. It is to establish limits on that power, provide accountability, and ensure that those making the decisions remain answerable to the people affected by them.
Although many Democrats ran on the cancellation of Trump’s tariff regime, I have my doubts that Canada will see any reprieve until the next election cycle.
