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It is inconceivable that the courts of law could override statutes. The courts are bound by statutes, and only have leeway in interpreting them where they are vague.

But does the same apply to regulations?

Can the courts say something like "okay, this regulation has not been updated for long, it no longer reflects the modern realities, so we create this case law allowing to deviate from the regulation"?

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    What do you mean by "override"? Statutes are declared unconstitutional frequently.
    – user6726
    Commented Mar 9, 2023 at 1:58
  • @user6726 I mean the court saying "we don't have to be bound by that statute/regulation anymore. Here is what the law should be instead ... and that is what we now apply instead".
    – Greendrake
    Commented Mar 9, 2023 at 2:23

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Regulations are products of executive action and can be reviewed for validity on a variety of grounds:

Regulations are valid if they are passed by the Governor in Council, signed by the Governor General, and (generally) published in the Canada Gazette. Once that is done, they can only be challenged based on 1) unconstitutionality, or 2) vires: Katz Group; GGPPA. So long as the regulations are within the literal wording of the enabling statute and consistent with its general objectives, including any procedural preconditions that might be stipulated, they are not subject to challenge for reasonableness.

Auer v Auer, 2022 ABCA 375 at para 81.

Absent such a defect, the regulation is valid and needs to be applied by administrative decision makers and courts.

Vires

"A successful challenge to the vires of regulations requires that they be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate." Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64 at para 24.

Charter or other constitutional violations

See e.g. Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139 (parts of airport concession operations regulations infringed on freedom of expression).

Procedural

The enabling statute might prescribe procedural requirements (notice, consultation, etc.). As a point of comparison, in the United States, most federal regulation-making has to comply with the procedural requirements of the Administrative Procedure Act. Failure to do so is a ground for setting aside the regulation.

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    N.B. In a case of division by a common language, the doctrine called vires in Canada would be called ultra vires in U.S. legal language.
    – ohwilleke
    Commented Mar 9, 2023 at 17:33
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Invalidating Statutes

It is inconceivable that the courts of law could override statutes. The courts are bound by statutes, and only have leeway in interpreting them where they are vague.

This overstates the situation, at least in U.S. law.

Courts, of course, do sometimes override statutes.

Courts invalidate statutes on the ground that they are unconstitutional (in the case of state legislation under the federal or state constitution, and in the case of local ordinances under the federal or state constitutions or under a local government's charter), and less frequently, on the ground that subsequent legislation or a new treaty has implicitly repealed or modified an old statute.

A state law can be invalidated on the grounds that it conflicts with federal statutes or treaties and/or regulations, and a local law can be invalidated on the grounds that it conflicts with federal treaties, and/or federal or state statutes, and/or federal or state regulations.

While one can argue over whether it is a matter of statutory interpretation or is an actual invalidation of a statute, a court can also make a determination that a statute is "spent" (for example, in the case of legislation authorizing something to be done that has already happened, such as spending money or allowing the executive branch to purchase real estate for some purpose), or has expired without further legislative action as legislation on the books already provided (this happens a lot in the case of tax provisions that have sunset terms in order to comply with Congressional budgetary rules).

Courts can also interpret a statute in a manner that seemingly conflicts with the plain textual meaning of the statute, in order to avoid a finding of unconstitutionality, implicit repeal, or an absurd interpretation of the law viewed in context and as a whole.

Invalidating Regulatons

Courts can invalidate regulations on a variety of grounds including:

(1) unconstitutionality on the merits,

(2) unconstitutionality on the grounds that they represent excessive Congressional delegation of authority to the executive branch,

(3) implicit repeal by later statutes or regulations, or by statutes or regulations of another higher level of government which has supremacy over the regulation in question,

(4) procedurally improper adoption or repeal of regulations under the federal Administrative Procedures Act (or parallel state or local administrative procedures related to regulatory actions),

(5) substantively improper adoption or repeal of regulations under the Administrative Procedures Act because the administrative record at the time of agency regulatory action does not adequately support the agency's regulatory action,

(6) substantively improper content because the regulations are not a reasonable interpretation or implementation of a statute, or

(7) substantively improper content because it exceeds the scope of regulatory authority authorized by the statute, i.e., that the regulation was an ultra vires act of the agency.

The U.S. Supreme Court in just the last year, under its new 6-3 conservative majority, has also articulated a new basis for overturning regulations called the "major questions doctrine". This doctrine is basically a hardening of the traditional non-delegation doctrine analysis in certain circumstances even when the legislation in question can plausibly be read to confer upon the executive branch the authority to issue a regulation of the kind adopted. As explained at this New York Times link:

It has been only eight months since the Supreme Court first invoked the “major questions doctrine” by name in a majority opinion, using it to limit the Environmental Protection Agency’s power to address climate change. Last week, the court seemed poised to use it again, to kill the Biden administration’s plan to cancel more than $400 billion in student loans. . . .

The idea behind the major questions doctrine is that Congress must speak particularly clearly when it authorizes the executive branch to take on matters of political or economic significance.

As in the case of legislation, while one can argue over whether it is a matter of statutory interpretation or is an actual invalidation of a regulation, a court can also make a determination that the regulation is "spent", or has expired by its own terms.

Courts can also interpret a regulation in a manner that seemingly conflicts with the plain textual meaning of the regulation, in order to avoid a finding of unconstitutionality, to avoid a conflict with the legislation authorizing the regulation, to avoid implicit repeal, or to prevent an absurd interpretation of the regulation viewed in context and as a whole.

The bottom line is that there are indeed many grounds to invalidate a regulation, although not necessarily the one contemplated in the question.

The courts can also determine that a formal or informal policy or practice of an agency amounts to a regulation and is subject to judicial review on the grounds set forth above, even though the agency itself has not framed that formal or informal policy or practice in terms of it being a regulation.

The line between what constitutes a mere exercise of law enforcement or executive branch discretion by an agency on a basis that does not actually amount to a regulation, and what actually constitutes a regulation in cases where the agency does not follow the Administrative Procedure Act regulatory process, is often not clear cut.

For example, while the I.R.S. provides as a matter of law that some of its statements on its website and in its taxpayer oriented publications and instructions have the legal force of a regulation, most other federal government agencies do not. But a court could rule that a statement on the webpage another government agency or in a publication of another government agency or an internal memorandum in some agency actually is a de facto regulation and is subject to judicial review on the same basis as a regulation.

Can the courts say something like "okay, this regulation has not been updated for long, it no longer reflects the modern realities, so we create this case law allowing to deviate from the regulation"?

Not unless the modern reality is a change in legislation or constitutional case law affecting something in the substantive content of the regulation.

For example, a court could invalidate a portion of a regulation defining marriage as only opposite sex marriages for purposes of some administrative program, even though the regulation has not been formally updated to reflect the fact that same sex marriages must now be recognized as a matter of constitutional law.

But, while the principle of stare decisis allows a court to determine that old case law should no longer be given the effect that it once had in light of changing case law, legislation, and the real world context to which the old cases are applied, this usually cannot be done in the case of regulations.

For example, the regulatory determination that marijuana is a Schedule I controlled substance, which includes a requirement that the regulator determine that marijuana has no legitimate medicinal purpose cannot be invalidated on the basis of a court determination that there are now legitimate medicinal purposes for marijuana, even though three-quarters of U.S. states have legalized marijuana for medical purposes.

Instead, the past regulatory decision can only be revisited through an Administrative Procedure Act authorized process to amend the regulation in question.

The closest the courts get to a determination of this kind about a regulation would be a determination that a regulation is implicitly "spent".

For example, a regulation that implicitly assumes that some particular war that was pending when the regulation was adopted (e.g. World War II) is underway, even though it doesn't expressly state that the regulation only applies for the duration of that war, might be held by a court to be "spent."

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  • Yeah, I think the US is virtually unique in the common law world with its unconstitutionality feature. If it can override statutes, it's clear that it can do regulations all the more so.
    – Greendrake
    Commented Mar 9, 2023 at 22:45
  • @Greendrake Australia's courts can invalidate legislation on constitutional grounds, but Australia's constitution primarily consists of federalism and separation of powers provisions without making it the core tool by which individuals liberties are protected. India uses its power of constitutional judicial review rather aggressively. New Zealand and Scotland do not use this tool very much. Canada is in between in invalidating laws based upon its Charter of Rights and Freedoms.
    – ohwilleke
    Commented Mar 10, 2023 at 1:27
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In the U.S., this happens often due to the fact that the separation of powers means the branch of government that writes the laws is not responsible for the enforcement of the laws. In U.S. Jurisprudence, it's generally held that Federal Law supersedes State Law, which in turn supersedes local law (local laws may further supersede other local laws, but it gets really weird as you go into the layers of local government).

Thus, if a state law conflicts with a federal law, then state law and all resulting regulations are thrown out since they must comply with a Federal Law. An example is a few years back when Arizona passed a law regarding the enforcement of illegal immigration when those who entered the state via an illegally crossing the Mexican border. The courts struck down these regulations because they found that immigration law was solely enforceable by the Federal Government, thus Arizona could not make or enforce these laws.

Other times, regulatory agencies (which are almost always under the Executive Branch of government) may make a regulation under the justification of a law that authorizing them to make regulations in compliance of these laws, but the specific scope of the law does not in fact give them regulatory authority over this particular aspect of the topic. For example, the Buera of Alcohol, Tobacco, and Firearms is currently seeing the legality of a Trump Era "bump stock ban". At issue is that the law the ATF claims justifies the ban is ambiguous as to whether bump stocks are cover or excused or not even mentioned in the language of the law. If it's not covered, then the ATF is not allowed to regulate it. If the language is ambiguous, it's a whole lot more complicated because it's ambiguous at best and there are guidelines for specific types of ambiguities and who gets the favorable interpretation of the ambiguous (ATF argues that the ambiguities are administrative in nature, and as such, the regulatory agency gets to determine the meaning. The plaintiffs claim that the ambiguities are criminal enforcement in nature, and thus the interpretation goes to the defendants in any criminal action related to regulations from this law.).

To say nothing of the fact that if the ambiguous wording is such that it's too vague, the courts can rule that it makes it uneforcable at all.

At this point, it should go with out saying that in U.S. law, regulations are typically administrative rules created by the executive branch that allow relevant regulatory agencies to set guidelines and procedures for enforcement of laws created by the legislature. Often times the Legislature has to make laws on topics that they might have difficulty in understanding in the nuance... but the relevant regulatory agency is more likely to have people who know the more detailed talking points because it's their job to worry about this stuff. It's not uncommon for laws to authorize the enforcement agency to set the exact figures when dealing with the enforcement of the law.

For example, if a law that will regulate CO2 emissions is passed, the Law might say that it is up to the Enviromental Protection Agency to determine the level of permissible CO2 emissions. Whatever the EPA says that number is, is a regulation backed by the aforementioned law. Any change to that level can be changed at any time so long as the law is still enforced and for any reason (either the new administration thinks the old one used a number that is overly permissive or overly burdensome OR there is an actual factual reason for a reduction or raising of the number.).

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