Nunatsiaq Online
COMMENTARY: Nunavut January 25, 2017 - 9:59 am

Legal Ease, Jan. 25

U.S. president versus Canadian prime minister: who has more power?

JAMES MORTON

The American president is, of course, a very powerful individual and can cause considerable problems if not suited for the position.

That said, almost everything an American president does is subject to review by others—aside from the ability to act in exigent military circumstances, the American President’s powers are more apparent than real.

In contrast, the prime minister of Canada has very considerable powers and in a very real sense, has more direct power than the president of the United States.

Some people are surprised that the Canadian prime minister is so powerful and the American president so, relatively, weak. That misunderstanding is probably because the American president is the American head of state and so has all sorts of ceremonial duties.

When the president walks in a room, music is played an trumpets blare! That does not happen for a Canadian prime minster – that’s because our head of state is the Queen.  And while the Queen has only residual power, there is a lot of pomp and circumstance in Her life!

A prime minister is powerful but the power is not obvious—people do not bow down to the prime minister—but that subtle power is very real.

That said, someone is prime minister only so long as they have the confidence of the House of Commons—which means the prime minister is the leader of the political party that has enough seats to pass legislation.

Once that position is lost—as what happened to Prime Minister Stephen Harper after the last election—the prime minister’s power is gone.

Some of the prime minister’s powers are the ability to appoint, assign and dismiss cabinet members. This is a very important power because almost every member of Parliament wants to be in cabinet and so they will, generally, follow the directions of the prime minister so as to get and keep a cabinet position.

The prime minister can also use this power to make sure that legislation comes forward that is consistent with the prime minister’s views and directions.

Beyond executive and legislative power, the prime minister has considerable powers of appointment.

So, for example, under the constitution the Governor General of Canada has the power to “appoint the Judges of the Superior, District and County Courts in each province,” (and that includes judges of the Nunavut Court of Justice).

Similarly judges of the Supreme Court of Canada are appointed by the governor general.  Because the Governor General makes judicial appointment decisions on the advice of the prime minister, as a practical matter the prime minister appoints the judges of the courts.

As mentioned in an earlier article, the prime minister only does so after a rigorous vetting process but still the final word comes from the prime minister!  In America, any federal judge has to be confirmed by the Senate so the American president cannot act alone.

The Senate is made up of eminent Canadians who are legally qualified and appointed by the governor general.

Under the current government, there is a vetting process to ensure senators are truly qualified.  As is the constitutional convention, senators are appointed by the governor general on the advice of the prime minister.

Since the Senate is almost as powerful as the House this is a very very important power. In America, of course, the Senate is elected and the president has no control over who becomes a senator.

These are just some of the prime minister’s powers. The powers are truly awesome!

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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