War on the House: The Interrelationship between the Separation of Powers and the Power of the Judiciary

---

To access the full article in Hebrew, please click here

These days, we are experiencing an unprecedented and severe assault on Israel's judicial system, culminating in proposals by members of the 37th government aimed, among other things, at rapidly amending Basic Laws to neutralize the power of the judiciary and legal advisors as balancing bodies within the separation of powers. The principle of separation of powers is essential for protecting citizens' freedom. It serves as the fundamental safeguard of human rights and prevents the concentration of tyrannical governmental power.

Over the years, there has been a heated debate about the nature of the principle of separation of powers in Israel. Politicians, judges, and many scholars have argued that in a country with a weak separation of powers like Israel, there is a need for a strong judiciary to protect the separation of powers and human rights. The discussion has also taken place in a comparative context, with some arguing that there is no other democratic country in the world with as weak a separation of powers as Israel. On the other hand, it has been argued that the Israeli Supreme Court has assumed powers without explicit authorization and has amassed unprecedented power in comparative terms.

How can one prove a connection between the strength or weakness of the principle of separation of powers and the strength or weakness of the judiciary? Seemingly, there is a very wide range of different mechanisms of separation of powers and varying extents of authority held by judicial bodies, all of which are influenced by historical, cultural, political, and social contexts.

In my upcoming article, On the Nexus Between the Strength of the Separation of Powers and the Power of the Judiciary, I address this challenge. In this article, I establish the following four claims:

1. There is an inverse relationship between the strength of the separation of powers structure and the ability of various elected governing authorities to maintain an effective system of checks and balances over one another, and the power of the judicial system. In countries where there is a strong separation of powers between the elected authorities, we should expect a weaker judicial system, and vice versa. This relationship can be traced empirically, and it is supported by normative and strategic foundations. In other words, part of the principle of separation of powers is the judiciary's ability to respond to the checks and balances structures that exist among the various elected authorities.

2. This relationship is expressed through a network of common law doctrines that have developed to support a given structure of separation of powers and shape judicial oversight of political authorities (the executive and legislative branches) according to the strength of the separation of powers in a given country. I identify a list of common law doctrines—including the requirement of standing, justiciability, deference, reasonableness, and the nature of interpretative methods—the content of which is derived from the strength of the separation of powers in a given country.

3. These doctrines are interconnected, even though scholars traditionally examine these common law doctrines independently of one another.

4. Courts recognize that the content of each of these doctrines is influenced by considerations related to the separation of powers. However, the courts have not linked these various doctrines together, nor have they identified the relationship between the strength of the separation of powers and the role of these doctrines as tools for preserving the separation of powers. Comparative law scholars often apply doctrines from one legal system to another without considering differences in the strength of the separation of powers in each country.

   
   

Methodology: Comparison of Two Judicial Decisions

I base my claims through a comparison of two decisions by the supreme courts of two democratic common law countries that dealt with a similar dilemma: Is restricting immigration (including entry) based on the nationality of the immigrant constitutional, even when it prevents citizens of the country from reuniting with their foreign family members? In both countries, there is no explicit constitutional right to family reunification.

The first decision was made by the Supreme Court of Israel in the Adalah case in 2006, which dealt with a legislative prohibition on family reunification between Israeli citizens and relatives from the West Bank and Gaza. This prohibition prevents these relatives from obtaining legal status in Israel, including permits for residence, stay, or naturalization. Although this policy was legislated as a temporary provision, requiring the government to renew it annually in the Knesset to ensure that its security rationale remains valid, it has remained in effect for the past twenty years. The Supreme Court of Israel is currently reviewing, for the third time since 2006, new petitions challenging this prohibition.

The second decision is the United States Supreme Court's 2018 decision concerning the presidential order of then-President Donald Trump, which banned entry into the United States from eight countries, most of which had predominantly Muslim populations. President Joe Biden revoked this order on his first day in office, condemning it as an expression of xenophobia rooted in religious animosity.

In both countries, the courts faced a similar dilemma and even reached similar conclusions of non-intervention. Not surprisingly, the experiences of both countries demonstrate that it is very difficult for the judiciary to intervene in favor of constitutional rights in immigration policy—a policy that represents the core of sovereign authority to control a country's borders—and thus to overturn decisions that political authorities deem necessary based on national security claims. Although the legal systems in both countries managed to influence the political authorities to reduce the scope of restrictions in light of legal proceedings, ultimately, the supreme courts in both countries rejected the requested remedies and allowed the continuation of the policies established by the relevant political authority.

However, the reasoning of the two courts was fundamentally different. The United States and Israel are located on opposite ends of the spectrum when it comes to the strength of their separation of powers. Through analyzing the different ways in which the courts in both countries justified a similar outcome, I seek to reveal the impact of the separation of powers model in each country.

My argument is that the opposing structures of separation of powers led to the development of opposing contents within common law doctrines.

The Strength of Separation of Powers and Common Law Doctrines

1. American Law

The United States adheres to a strong interpretation of the principle of separation of powers, as reflected in its constitutional structure. It has a federalist system based on the division of powers between the central government and the states. It also features a bicameral legislature, where the two houses are elected separately and independently from one another: the lower house (House of Representatives) represents the population as a whole by districts, while the upper house (Senate) represents the states.

The United States also has a presidential system, in which the executive branch is elected independently of the legislature and is not dependent on the legislature to continue its term. These arrangements are enshrined in a supreme and rigid constitution that is hundreds of years old, aimed at preserving the principle of separation of powers. I argue that this constitutional structure has indirectly led to the development of judicial doctrines, stemming from common law, which aim to express and preserve this strong principle of separation of powers over time.

In my article, I demonstrate how a supreme and rigid constitution with a strong separation of powers leads to the development of a series of judicial doctrines, all of which express the independence of each of the governing branches:

(1) Reasonableness and Deference

The courts are cautious about intervening in executive decisions because there is a genuine separation between the executive and legislative branches. In countries like the United States, the branches are independently elected and not dependent on each other, meaning control over each branch may be held by different parties. Therefore, courts cannot assume that annulling an administrative decision can be easily 'remedied' by simply reenacting it through Congress, if the legislature, upon reconsideration of the administrative decision, believes it should remain in place.

(2) Textualist (or Originalist) Interpretation of Constitutional Texts

This interpretative approach is legally and publicly controversial in the United States. It seeks to "uncover" the intent of the framers of the Constitution or the public meaning of the text at the time of its adoption and to limit the scope of judicial interpretation. Simultaneously, this approach demonstrates caution in recognizing implied constitutional rights that are not explicitly enumerated in the Constitution.

This approach, where it applies, suits the American model of separation of powers more than the Israeli one. The reason is that this interpretative approach is based on the assumption that the constitutional text was adopted after prolonged discussion and with broad consensus, reflecting the will of the people. Therefore, significant weight should be given to the text in order to preserve the supremacy of the people over the legislature as part of the principle of separation of powers.

(3) Strict Standing and Justiciability Doctrines

The courts restrict the group of those eligible to initiate constitutional proceedings and the types of cases they consider. Only those with a personal and concrete interest are entitled to initiate constitutional proceedings, and the court will only address an issue if it is not entrusted to the authority of another branch.

The assumption is that in a country with a strong separation of powers, the branches are constantly competing for power, and the principle of checks and balances operates in a significant and continuous manner. Therefore, judicial intervention is only required in exceptional circumstances.

These doctrines, developed within the American legal system, reflect the strong separation of powers that characterizes the United States’ constitutional structure. The caution exhibited by courts in intervening in political and executive decisions, as well as the commitment to textualist interpretation and strict standing requirements, all serve to reinforce and preserve the robust separation of powers that defines the American system.

2. Israeli Law

Opposite doctrines will develop in the common law of a country where the separation of powers is weak. Israel is such a country. It has a parliamentary system, where the public only elects the Knesset, and the government is indirectly formed through the support of a Knesset majority. It also has a unitary structure, meaning there is no division of governmental power between central and regional authorities.

Israel’s legislature is unicameral, so legislative proposals do not need the approval of two separate legislative bodies elected through different electoral methods that compete to represent different audiences. Additionally, Israel has a flexible constitution, most of which can be amended by a simple majority. In such a country, the content of judicial doctrines originating from common law is expected to be the opposite of those found in American law. This content must reflect the different nature of the separation of powers in Israel.

In a system like Israel’s, we find the following judicial doctrines:

(1) Broad Reasonableness Doctrine

The courts will develop a significant judicial intervention doctrine regarding executive decisions because they understand that the executive is not directly elected by the public. In a parliamentary system, the executive does not have independent existence and is not separate from the confidence of the legislature.

Therefore, when courts invalidate government actions as unreasonable, they are effectively referring the matter for reconsideration by the legislature. Through this, the courts contribute to strengthening the legislative branch compared to the executive branch, while also knowing that the legislature can relatively easily override specific judicial decisions through legislation. The legislature is not required to meet the standard of reasonableness, which applies only to the executive branch.

(2) Purposive Interpretation Approach

In a system with a weak separation of powers, there is a significant concern that a single election, won by a narrow majority, could fundamentally alter the legal system. When courts employ purposive interpretation to interpret legislation, they give considerable weight to the coherence of the legislation with the country's legal history and especially its fundamental values.

This approach minimizes the impact of occasional political maneuvers that do not have deep and broad public support. By emphasizing coherence with historical values and principles, the courts attempt to anchor legislative interpretation within a broader and more stable framework.

(3) Broad Standing and Justiciability Doctrines

The courts allow easier access both in terms of who can bring cases and the types of issues they will consider. This approach stems from the understanding that judicial oversight is essential to prevent the law from becoming a dead letter. As famously stated by Justice Aharon Barak, “Without a judge, there is no law.”

The perception is that the manifestation of separation of powers is precisely in judicial oversight, as there is not enough competition for governmental power to effectively oversee the actions of elected bodies between elections.

In my article, I elaborate on additional implications of the separation of powers structure on the content of legal doctrines, including implications for the standard of constitutional review, the willingness to use comparative law, and the significance of the right to equality.

Response from the Political Authorities

In Israel, the weak separation of powers has led to the development of judicial doctrines that establish a significant potential for judicial intervention. For example, the courts can theoretically intervene relatively easily to promote rights. They can recognize implied rights through a purposive interpretation of the Basic Laws. However, at the same time, both the courts and the Knesset are well aware that it is easy for the Knesset to respond to court rulings through legislative and constitutional amendments.

The political authorities have been willing, over the years, to accept these expansive judicial doctrines, knowing that the potential for legislative intervention also limits the judiciary's room for maneuver. This knowledge has contributed, in my view, to the fact that the judiciary has generally acted with restraint over the years and has resulted in both sides of the political spectrum expressing (dis)satisfaction with the judiciary’s actions. Those on the right have argued that the court overly protects human rights at the expense of public interests. Those on the left have argued that the court “legitimizes” Israel’s actions in the territories. The court was not “in the pocket” of any political side.

The 37th government plans to severely undermine the status and power of the judiciary under the guise of protecting democracy and the principle of separation of powers. This government seeks, among other things, to deny the court the ability to recognize implied constitutional rights through purposive interpretation and to eliminate the use of the reasonableness doctrine.

However, my article demonstrates that these doctrines are a direct product of Israel’s constitutional structure and are designed to create balance among the branches where alternative checks and balances, like those found in countries with a strong separation of powers, do not exist. In other words, these legal doctrines are intended to protect the principle of separation of powers, and their abolition would severely harm this principle.

Notably, the British House of Lords (sitting as the highest judicial authority at the time) already stated in a 2005 obiter dictum that if the legislature were to eliminate judicial oversight over executive actions in a way that severely harms human rights, it might justify the annulment of such a law, even in the absence of an explicit supreme constitution.

During the debate over the proposals of the new government, claims are often made about the far-reaching expansion of the Israeli Supreme Court's powers. However, as my article shows, these judicial doctrines are the result of the absence of other mechanisms of checks and balances between the governing authorities.

In the United States, there is a strong separation of powers between the executive and legislative branches, between the two houses of the legislature, and between the federal and state governments. Israel lacks such a checks and balances system.

The U.S. constitutional framework includes an entrenched constitution spanning hundreds of years that anchors citizens’ rights. In Israel, most constitutional provisions can be amended by a simple and occasional majority. Therefore, without the checks created by the judiciary through the doctrines described above, there would be no effective means to protect the principle of separation of powers.

Conclusion

My article demonstrates that, paradoxically, being at opposite ends of the spectrum in terms of the strength of the separation of powers leads to a similar limitation on the power of the judiciary.

• In a country with a strong separation of powers, limitations manifest through the content of common law doctrines themselves.

• In a country with a weak separation of powers, the judiciary develops doctrines that allow significant intervention but is, in practice, severely limited in using them due to the fragile constitutional structure that also threatens the judiciary itself.

Courts on both sides of the spectrum use different, even opposite, judicial doctrines to reach similar outcomes of limited intervention in the actions of political authorities. However, in the absence of potential judicial oversight tools, an already fragile separation of powers structure is likely to collapse. Ultimately, the judiciary can complement but not replace democratic processes.

From this perspective, “If we do not protect democracy, democracy will not protect us.”

Suggested Citation:

War on the House: The Interrelationship between the Separation of Powers and the Power of the Judiciary,  ICON-S-IL Blog, Jan. 13. 2023 [Hebrew].