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 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.