Judicial review of constitutional transitions: war and peace and other sundry matters.

AuthorWeill, Rivka
PositionI. Introduction to III. Treating Caretaker Action as Justiciable B. Appointments and Actions in the Public Sector, p. 1381-1417

ABSTRACT

Constitutional transition periods present a twilight time between two executives. At such times, the outgoing executive's authority is questionable because of the democratic difficulties and agency concerns that arise at the end of the executive's term. Thus, parliamentary systems developed constitutional conventions that restrict caretaker governments' action. These conventions seem to achieve the desired results in the United Kingdom, Canada, New Zealand, and Australia. In contrast, in the United States, the prevailing norm is that there is only one president at a time, and this is the incumbent president, who is fully authorized to govern the country and his or her discretion is unfettered. Transition periods are thus exploited by U.S. lame-duck presidents to make last-minute appointments, regulations, and even international agreements. Israel does not fit either of the two poles in the dichotomy between parliamentary systems that successfully deal with caretaker authority and presidential systems that do not. Though a parliamentary system, its constitutional history is full of examples of abuse of caretaker power. This has led Israel's Supreme Court to treat the sphere of authority of caretaker governments as justiciable in contrast to other courts' treatment of the subject. Exploring its case law in issues of war, peace, and other lesser matters offers a rich case study of the standards that should govern this unexplored legal-political area.

Using Israel as a case study within, a comparative constitutional framework, this Article suggests three important lessons. First, it is not the nature of the constitutional system per se, whether parliamentary or presidential, that determines the success of preventing abuses of transitional governments' power. Rather, the potential for abuse exists in both types of systems. Furthermore, the challenges posed by these transitional governments are similar in both types of systems. Second, transitional governments' power is not a topic that courts are inherently unable to regulate. Rather, if constitutional conventions fail to do their job or do not evolve, judicial review is a potent possibility. Last, it is not enough to determine that transitional governments must act with restraint, as the Israeli Supreme Court has determined, but it is important to give concrete meaning to which actions are permitted by transitional governments and the circumstances under which they are allowed. The Article concludes by delineating such general guidelines.

TABLE OF CONTENTS I. INTRODUCTION II. THE CHALLENGES POSED BY TRANSITIONAL GOVERNMENTS A. The Agency Problem B. The Democratic Deficit C. Efficiency and Instrumental Concerns D. Comparative Experience with Regulating Transitional Governments III. TREATING CARETAKER ACTION AS JUSTICIABLE A. Conducting Peace Negotiations 1. The Weiss Decision 2. The Livnat Decision 3. Comparative Experience with International Agreements B. Appointments and Actions in the Public Sector 1. Public-Sector Appointments When Government Representatives Do Not Occupy a Majority in the Appointing Body 2. Appointments in Which the Government Has No Influence 3. Appointments in Which the Government Has Decisive Influence 4. Comparative Experience with Public-Sector Appointments C. Distribution of Material Goods to the Public 1. Distribution of Material Goods to the Public 2. Comparing Distribution of Material Goods and Public-Sector Appointments 3. Comparative Experience with Distribution of Material Goods to the Public IV. WHY DISTINGUISH PEACE NEGOTIATIONS FROM PUBLIC-SECTOR APPOINTMENTS? A. Reversibility 1. Distinguishing Signing from Ratification 2. The Significance of Signing 3. The Israeli Peace Process B. The Mandate Issue 1. Peace Negotiations 2. Public-Sector Appointments C. The Justiciability Issue V. GENERAL PRINCIPLES OF THE DESIRED LAW A. Regular-Course-of-Affairs Criteria B. Permitting Extraordinary Measures 1. A Vital Public Need for Action 2. Preapproval of the Legislature for Taking an Extraordinary Measure VI. CONCLUSION I. INTRODUCTION

As a cautionary tale of the vulnerability inherent in transition periods and the serious dangers that can follow, one need only recall that the Nazis were able to overtake Prussia--the largest Lander (state), controlling two-thirds of Germany's territory and population--while a caretaker government ran it because, inter alia, the government was too weak to fight change. At the same time, Nazism's rise was also enabled by the gradual weakening of the federal Weimar parliament through repeated dismissals by the federal executive, which resulted in numerous periods of caretaker authority seriatum. (1) A nation needs its caretaker to be strong enough to fight undemocratic revolutionary forces, yet not so strong that it becomes the vehicle of internal gambits to extend or expand control.

Caretaker and lame-duck governments operate in the interim between two executives in parliamentary and presidential systems respectively. (2) They are a recurrent phenomenon around the world, yet their authority is an academically neglected topic, especially in the area of constitutional law. (3) Despite their name, which implies that their power is or should be curtailed, these governments enjoy full authority in most democratic legal regimes. The justification is practical: Someone needs to run the state even during transition periods. Yet, these governments suffer from both agency difficulties and democratic deficits.

To deal with the challenges, parliamentary systems have developed conventions, not enforceable in courts, for restraining caretaker actions. (4) In fact, these conventions seem to work well in the United Kingdom, Canada, New Zealand, and Australia. These countries barely discuss caretaker power, and they do not report significant abuse of that power. This is so despite the fact that some of these countries have proportional-representation election methods and thus suffer from long transition periods. (5) No similar conventions developed in the United States, where the governing norm is that there is only one president at a time, the incumbent president, who is fully authorized to deal with all matters and his or her discretion is unfettered. (6) In fact, U.S. lame-duck presidents are famous for their "midnight actions," (7) which may include controversial pardons, appointments, regulations, and even the signing of international agreements. (8)

It could be argued that the difference between these various countries' experiences should be attributed to the nature of the constitutional system, whether parliamentary or presidential: Parliamentary systems by their nature better deal with transitional governments than presidential systems. Thus, they do not exhibit the same abuse of caretaker power. Since a president is directly elected by the people, he or she enjoys full authority even as a lame duck. In contrast, caretaker governments are more subdued because they have no independent mandate from the people and have lost the indirect authority from the people, through a parliament, during transition. (9) In addition, as directly elected chief executives, presidents enjoy unilateral powers that are usually not available to their prime minister counterparts in parliamentary systems. (10)

However, Israel's experience seems to disprove this dichotomy between the happy story of caretaker governments in parliamentary systems and the failed story of U.S. lame-duck presidents. Though a parliamentary system, Israel has a long history of abuse of caretaker power.

Against the backdrop of an enduring emergency and ongoing threat to its security, Israel's vulnerability is only exacerbated by the high rate of executive turnover. Although its Basic Law: The Knesset defines the Knesset's (Israel's Parliament) term of office--and by inference also that of the government--as a stable four-year term, (11) surprisingly, Israel has had thirty-two governments during the past eighteen Knesset terms. (12) Governments have not survived more than an average of twenty-two months since the state was founded because of the combined effects of its parliamentary system, proportional-representation election method, and a low electoral threshold of 2 percent. (13) The period of transition can stretch for many months--from six months before elections to a few months following elections. (14) Israeli caretaker governments serve an average of eighty days (eleven weeks).

During these transition periods, caretaker governments in Israel acted in ways resembling lame-duck presidents in the United States, who have sought to make public-sector appointments, conduct international negotiations, or embark on military operations before relinquishing the reins of power. (15) For example, lame-duck President George W. Bush finalized a bilateral military accord with the Iraqi government against the wishes of President-elect Barack Obama, Congress, and the American people. (16) President Bill Clinton signed the Rome Statute, the treaty establishing the International Criminal Court, (17) which led the newly elected President Bush to take the remarkable and unprecedented act of "unsigning" the treaty. (18) Further back in U.S. history, lame-duck President Jimmy Carter signed the Algiers Declarations on his last day in office in return for the release of American hostages held in Iran. This was done despite (or perhaps because of) the fact that the new President-elect, Ronald Reagan, ran on the opposite platform of taking a harsh nonnegotiable stand against Iran. (19)

These midnight actions of lame-duck U.S. presidents have their roots in the beginning of the republic. In fact, the famous Marbury v. Madison case (20) dealt with massive midnight appointments to the judiciary made by President John Adams in his last days in office in order to entrench Federalist agendas. When the Federalists realized that they had lost control of Congress and the...

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