How should a court deal with a primary question that the legislature seeks to avoid? The Israeli controversy over who is a Jew as an illustration.

• Author: Sapir, Gidon

ABSTRACT

Legislative avoidance of principled decisions on substantive questions by transferring the decision-making task to the executive branch, is a frequent scenario. The legislature does this by way of either express or hidden delegation, i.e., by using ambiguous wording that on its face only requires interpretation but which in fact requires a substantive decision on the matter at stake. The Israeli legislature resorted to the hidden delegation tactic to avoid the adoption of a substantive decision in the dispute over the question of who is a Jew--a dispute that has divided Israeli society and World Jewry (especially its U.S. component) since the establishment of the state of Israel. This Article presents a complex analysis of the Israeli Supreme Court's treatment of this hidden delegation. The aim of the Article is to enhance the U.S. reader's understanding of the various options available to a court while tackling the fundamental question of the nondelegation doctrine and to offer a few new insights as to how this question should be resolved.

As is well known, during the last few decades, the U.S. Supreme Court has avoided applying the nondelegation doctrine, even though it has never been officially overruled. One of the stratagems employed by the U.S. Supreme Court to avoid applying the doctrine is the strategy of denying the existence of delegation, in reliance on the "double test" established in Chevron. This Article will demonstrate the similarity between this evasion tactic and the tactics used by the majority of the justices on the Israeli Supreme Court in the matter of who is a Jew. It will then briefly review the arguments offered by the doctrine's opponents and present a new, narrower version of the doctrine, which distinguishes between express delegation and hidden delegation and only seeks to disqualify the latter. It will argue that this version of the doctrine--which was employed in Israel by one minority Justice--could even be acceptable to those U.S. justices and scholars who for various reasons oppose the doctrine in its complete form.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. Introduction B. The Shalit Case C. The Pessaro Case D. The Na'amat Case E. The Toshbeim I Case F. The Toshbeim II Case III. FOUR METHODS OF DECISION-MAKING A. Substantive-Ideological Decision B. A Neutral Decision i. Introduction ii. "Registry Based" Neutrality: The Attempt to Distinguish between the Registry Law and the Substantive Law iii. The Failure of the Result Test a. The Registry as a Symbol b. The Manipulative Nature of the Distinction Between the Registry Law and the Substantive Law iv. The Failure of the Motivation Test a. Introduction b. Is "Liberalism" a Neutral Ideology? v. Conclusion C. Judicial Restraint D. The Court as an Agent for the Principle of a Democratic Decision 1. The Right of the Last Word and the Right (and Perhaps Obligation) of the First Word 2. How can we influence the legislature to assume responsibility? 3. How to Confront a Stubborn Legislature 4. Can a judicial decision be viewed as a catalyst for democratic decision-making? IV. THE THESIS FROM THE PERSPECTIVE OF U.S. LAW A. Introduction B. Who is a Jew and the Chevron Doctrine C. Proposal for an Intermediate Approach to the Question of Delegation V. SUMMARY AND CONCLUSIONS I. INTRODUCTION

U.S. scholars of constitutional law have long been engaged in almost obsessive attempts to illuminate the justification for judicial review of legislative decisions and its legitimate limits. On its face, there is a fundamental tension between the conferral of the right of the "last word" to the court and democracy, hence the need to justify judicial review. (1)

However, the tension between judicial activity and democracy is not only expressed in cases in which courts interfere with the legislature's decisions. It also emerges in cases in which the court is required to resolve issues that the legislature intentionally avoided. Indeed, quite frequently the legislature circumvents the resolution of substantive questions. Questions left undecided by the legislature thus find their way to the judicial branch after having been decided by the executive branch.

This second category of cases can be divided into two scenarios: the express delegation to the executive branch of the power to decide or the adoption of an ambiguous decision that fails to decide the question at issue, intending or at least anticipating its decision by the other branches of government. This Article is devoted to a discussion of these two methods of avoidance, which will be referred to respectively as "express delegation" and "hidden delegation," along with the possible methods of response available to the court when encountering such cases.

This Article presents four modes of response a court can choose from when called upon to address a substantive question that the legislature avoided deciding and that was instead decided by the executive branch. One response is to decide the question on its merits using substantive claims. A second method is to maintain neutrality--in other words, to render a decision on the file but refrain from a decision on the fundamental dispute. (2) A third method is that of judicial restraint: absent an explicit reason based in law or public consensus militating against the decision of the executive branch, the court will refrain from interfering with its decision. The fourth mode is the adoption of tactics intended to compel the legislature, or at least to pressure it into arriving at a democratic decision on the matter. The Article is devoted to a detailed discussion of the advantages and disadvantages attaching to each method and attempts to pinpoint the most appropriate method from a democratic perspective.

The options available to the court in the current context may be presented and discussed in the abstract, but the discussion will benefit from concrete examples. Therefore, this Article will center on a classic case study in Israeli Law--the legal and public dispute over the question of who is a Jew. Israeli immigration laws grant every Jew the right to immigrate to Israel and automatically to be granted citizenship (the status of an oleh), but the Israeli legislature failed to furnish a precise definition of the term "Jew" for that purpose, despite its awareness of the controversy and the varying interpretations that can be given to the concept "Jew." (3) The legislature did not perform express delegation, because it did not expressly delegate the authority to decide to the executive branch. But, in its failure to provide an exact definition despite its awareness of the controversy, it performed hidden delegation when it transferred the undecided matter to the executive branch with the knowledge and intention that it would be decided by the executive branch. The executive branch gave the term its own interpretation and acted accordingly. (4) A number of individuals and organizations, aggrieved by the interpretation, petitioned the court, requesting it to reject the interpretation of the executive branch and to adopt another in its place. (5) The opinions given by the justices addressing the dispute over the years, whether as majority or minority opinions, may be classified into the four fundamental categories of response mentioned above. The description of these four methods in their concrete settings will assist in their evaluation and expose the advantages and disadvantages of each one.

The Article is structured as follows: Part II will present the dispute over who is a Jew and describe its evolution through the decisions of the Israeli Supreme Court, focusing on five leading opinions, the first in 1970 and the last in 2005. Part III exemplifies the concrete expressions of the four methods for decision-making in the majority or minority opinions given in the opinions surveyed in Part II. Part III.A. will describe and evaluate the first method--the substantive decision. The claim will be that this method is problematic from a democratic perspective. Part III.B. will analyze the second method of making decisions--the neutral decision. This method was utilized by the majority justices in some of the decisions surveyed in Part II, and it too is problematic. Firstly, it is doubtful whether a truly neutral decision is even possible, for even where the neutral presentation is made in good faith, its consequences cannot be neutral. Furthermore, on numerous occasions the pretence of neutrality is no more than a facade concealing an unequivocal, value-based decision. Part III.C. will deal with the third method, that of judicial restraint, which is expressed by judicial respect and deferral to the position adopted by the executive branch. It will argue that this mode is preferable to its predecessors but that it, too, is flawed by two weaknesses. Firstly, the decision not to intervene preserves the status quo ante, despite its being acceptable to only one of the parties. This means that wherever there is a dispute between an individual and the executive authority, a decision not to intervene will always be a decision in the authority's favor. Secondly, the institution of a policy of nonintervention in the executive authority's decisions may produce arbitrary results.

After describing, and rejecting, the three first operative modes, Part III.D. will proceed with a description and evaluation of the fourth method. In this mode of decision-making, the court utilizes tactics designed to compel the legislature, or at least pressure it, to democratically decide the issue at hand. It will argue that this method is the most commendable one from a democratic perspective.

The fourth operative method has an advantage over its three predecessors, but it, too, has certain weaknesses. The main drawback is a practical one: on many an occasion it seems that it is not a viable option. The court's powers are limited; it is powerless to force...