Healing the Budget's Ills or Budgeting the Healing of the Ill-Is the Constitutional Dilemma

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Severe criticism has been leveled against the Supreme Court of Israel for not doing enough to advance social rights by recognizing them as constitutional rights. It has been argued that the human rights revolution is for the wealthy and not for the disadvantaged in society. It has also been explained that there is no substantive difference between social human rights and civil-political rights; both impose duties of action and abstention on the state.

This article seeks to take a different stance by focusing on the right to health. My position is that the Court should not initiate recognition of the constitutional status of the right to health. It should leave this task to the elected branches, in light of the dominant feature of the right to health as one that requires massive public funding. While judicial decisions often carry budgetary implications, the Court’s interventions are typically at the margins of the budget. By contrast, recognizing the right to health as a constitutional right, in the absence of explicit recognition by the elected branches, would mean entrenching significant portions of the state budget for the right to health.

The Court should refrain from such intervention in the state budget because of the budget’s special constitutional status. Weighty principles of mandate, liberty, efficiency, expertise, accountability, and separation of powers require that budgetary matters be left to the elected branches. Comparative historical experience also shows that intervention by unelected bodies in budgetary matters and the shaping of welfare policy has ultimately caused irreversible institutional damage to those bodies. The close connection between the failure to pass a state budget and the holding of elections in parliamentary systems further reinforces this conclusion.

The social struggle should therefore focus on achieving recognition of the constitutional status of social rights through the elected branches, and not through the Court.

Suggested citation:

Healing the Budget's Ills or Budgeting the Healing of the Ill--Is the Constitutional Dilemma, 6 Law & Business (Reichman U L Rev) 157, 157-196 (2007) [Hebrew].