The Frontiers of Nullification and Anticommandeering: Federalism and Extrajudicial Constitutional Interpretation

Abstract

In federal systems, non-judicial actors can engage in constitutional reasoning. The actions taken may come in different legal forms. Some may be consistent with positive law, while others may not. Nullification and anticommandeering are prominent examples. We show that these concepts have functionally made new appearances in Canada. One significant example of this is Alberta’s enactment of the 2022 Sovereignty Act. We trace how the initial proposal for the legislation resembled nullification. Over time, the proposal was reformed to adapt it to the particularities of Canadian federalism. The result was a Sovereignty Act that appears to assert existing provincial powers, particularly as a formal framework for extrajudicial constitutional interpretation via anticommandeering, although only time will tell if this remains the case in practice. In doing so, we shine a light on the contours of some of the legal and political debates that may arise as the framework is operationalized.