It might have been an off-hand joke by Donald Trump, the once and future president of the United States, that Canada should become part of the United States of America, but he’s rekindled it again and again since, both comically in memes and in serious political interviews.
Does Trump really think it could happen?
Are the jokes and jabs manifestly destined to become a plank in the in-coming president’s political vision? Could one way to Make America Great Again be a transfusion of Canadians?
As implausible as it seems, it leads to big questions: Is it even possible? And if so, how could it happen?
At the request of National Post, two specialists in political and constitutional law — one in Canada and one in the United States — agreed to apply a non-partisan, broad view of the frameworks and mechanics of how such a fundamental shift in Canada’s statehood could theoretically happen, regardless of whether that makes you feel sick or fills you with joy.
Gregory Tardi spent 11 years as legal counsel to Elections Canada and another 15 years as senior parliamentary counsel to the House of Commons. He’s taught at law schools in Ontario and Quebec and specializes in the interactions of law, policy, and politics. He is president of the Institute of Parliamentary and Political Law, an independent think tank.
Roderick M. Hills, Jr. is a professor at New York University Law School in New York City who teaches and writes about constitutional law with emphasis on federalism and intergovernmental relations, and the autonomy of state and local governments.
First, here’s what Tardi said.
The legal path
What we’re faced with, because we are both rule-of-law countries, is that the first and most likely method attempted to either unite the two countries or incorporate Canada into the United States would be by constitutional and legal means.
It seems to me that if either Canada as a whole, or some portions of it, would want to join the United States they would have to go through Section 41 of the Constitution Act of 1982. Which means that consent would have to be given for the departure from Canada of a particular jurisdiction by the Senate, and the House, and the legislatures of all 10 provinces.
That already tells you that this is a very unlikely scenario.
But even if we’re talking about one jurisdiction deciding it wants to become part of the United States, then it would have to follow this route.
Whether we’re talking about one jurisdiction or several jurisdictions, or the country as a whole, the qualifier for section 41 of the Constitution is the set of principles developed in the Quebec secession reference of the Supreme Court.
Let’s say, for the sake of argument, P.E.I. wants to leave and New Brunswick and Nova Scotia want P.E.I. to stay, and Ottawa wants P.E.I. to stay. Then there would have to be discussions until they come to an understanding. It can’t just be that P.E.I. packs up its bags and goes. There has to be a form of agreement.
Harder to leave than arrive, in theory
Once that decision is taken, either by all 10 provinces or by some but not others, then there must be admission into the United States. And that is a completely separate process.
That is based on Article IV, section 3, clause 1 of the U.S. Constitution, which essentially says that by a simple vote of the U.S. Congress, new territories can be incorporated into the U.S. and can become states.
The most recent example of that occurred with Hawaii which became a state on Aug, 21, 1959, pursuant to a statewide referendum in Hawaii and then federal legislation.
You know, before the United States gets to an absorption of Canada, maybe they should deal with the two or three jurisdictions that are ahead of us in the line to become U.S. states. One of them is the District of Columbia which has been trying for decades for a status as a state. And then there’s Puerto Rico.
That is the sort of the least unlikely of the scenarios possible.
Buy America Great Again
The second possibility is by purchase.
A lot of the American states were purchased, for example, in the Louisiana Purchase, and that’s how states on the western side of the Mississippi became first territories and eventually states.
If you recall during his first term, President Trump talked about simply buying Greenland. Everybody thought he was off his rocker. I mean, theoretically very, very theoretically, this is possible. But Canada’s not up for sale. And no part of Canada is up for sale. So, I would say that is an unlikely scenario at best.
I don’t think the U.S. Treasury could absorb that. In the case of Greenland, it was probably, he thought, well, Denmark owns this and we’ll just buy it from them. But nobody owns Canada except Canada.
Red alert!
The third option, I don’t know if you want to go close to this with a 10-foot pole: Outright invasion.
In upstate New York, close to Ottawa, they have the 10th Mountain Division, which are elite troops of the U.S. Army. It wouldn’t, frankly, take much for them to drive up to Ottawa and say you’re now part of us. But it’s highly unlikely to happen.
Over to Hills. What is the view south of the border?
It’s been done before
The United States has historically added a new state that had formerly been an independent country: That’s how we annexed Texas in 1845.
The constitutional provision authorizing the addition of new states is found at Article IV, section 3, clause 1 of the U.S. Constitution: “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”
Ordinarily, Congress adds states by accepting a petition from some legislative body — usually the territorial legislature that Congress itself set up for territories formed out of the U.S. public domain.
The Congress then passes an enabling act authorizing the admission of the new states on some statutorily specified set of conditions.
For Utah’s admission, Congress insisted that the Utah Constitution outlaw polygamy, for instance. Then the population of the proposed state generally votes in a referendum to approve or reject the conditional admission.
That referendum is not required by the Constitution, but it has been included in every state admission enabling act since the mid-19th century, I believe.
Canada has already been invited
At the time of our Revolution against the British Empire, the Continental Congress actually invited Canada to join the Union as a state — and, when they did not rise up against the British, we Americans invaded.
Might any of this happen?
Completely absurd.
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