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


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 the face of it 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 in order 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 American 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 American reader’s understanding of the various options available to the 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 American Supreme Court has avoided applying the Nondelegation doctrine, even though it has never been officially overruled. One of the stratagems employed by the American Supreme Court to avoid applying the doctrine is the strategy of denying the existence of delegation, in reliance on the “double test” established in the Chevron case. I will indicate the similarity between this evasion tactic and the tactics used by the majority justices of the Israeli Supreme Court in the matter of who is a Jew. I 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. I will argue that this version of the doctrine -- which was employed in Israel by one minority Justice – could even be acceptable to those American justices and scholars who for various reasons oppose the doctrine in its complete form.


Comparative and Foreign Law | Constitutional Law | International Law

Date of this Version

February 2006