The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Israeli Parliament Passes Law Limiting Judicial "Reasonableness" Review of Government Policies
The new law is probably the least objectionable part of the right-wing government's attack on judicial review in Israel.
Today, Israel's parliament, the Knesset, enacted a law severely limiting judicial "reasonableness" review of government policy. The new law bars reasonableness review of policies enacted by the national cabinet and by individual ministers, but leaves it in place for policies adopted by lower-level government officials and municipal governments.
The new law is the least problematic element of the right-wing government's broader plan to essentially gut judicial review in Israel. Reasonableness review enables the Supreme Court to overturn a wide range of executive policies if it concludes they are "extremely unreasonable." For example, earlier this year, the Court blocked the government's plan to appoint Shas Party leader Aryeh Deri, to the positions of interior minister and health minister, because of a conviction for tax offenses arising from a plea bargain agreement in which he apparently promised to stay out of public office.
Critics of "reasonableness" review argue that it's an amorphous standard easily abused by judges. It goes well beyond practices in most other constitutional democracies. While there are some similarities to US "rational basis" review, the latter is far more deferential. The Israeli test is somewhat more akin to various types of heightened scrutiny that in US jurisprudence are usually reserved for government policies that threaten fundamental rights or discriminate on the basis of suspect classifications, such as race, gender, or religion.
Unlike the rest of the Israeli government's judicial reform plan, constraining reasonableness review probably poses only a minor danger to important individual rights. The latter are—for now—still protected by judicial enforcement of the various rights specifically guaranteed by Israel's Basic Laws.
I am not convinced that "reasonableness review" should be as sweeping as it was prior to today's reform. In some cases, it verges on dubious judicial policymaking. Consider, for example, this list of policy decisions the Supreme Court overturned as "extremely unreasonable," compiled by Israeli legal scholar Amichai Cohen (a supporter of reasonableness review):
-
The decision by the minister of defense not to install protection against rocket attacks in all classrooms in the city of Sderot, and instead to retain the system of common "protective spaces" despite the immediate danger to students (2007).[8]
-
The decision not to automatically recognize doctoral degrees issued by foreign universities, ignoring the fact that many students had relied on previous decisions by the Ministry of Education when they began their studies (2005).
-
The decision to suspend the decision of the minister of finance, according to which full-time Kollel (yeshiva) students would lose subsidies for daycare for their children, without giving Haredi families sufficient time to make alternative arrangements (2022).[9]
-
The decision not to construct a ritual bath (mikve) for women in the town of Kfar Vradim (2014).[10]
Several of these decisions seem right on policy or moral grounds. But I have serious doubts whether any of these issues are the kind well-suited to judicial resolution based on a very vague standard.
Given the highly centralized nature of Israeli government, which has very few checks and balances other than judicial review, I think some kind of more limited "reasonableness" review of executive policies may be justifiable. But, ideally, it would be less expansive than the system in place before today, and focus on specifically enumerated types of abuses of power.
If the right-wing government's judicial reform agenda were limited to the law enacted today, there would only be modest cause for concern. But it goes far beyond that, and would—if fully enacted – gut judicial review and gravely threaten individual rights, especially for Israel's many minority groups. Prime Minister Benjamin Netanyahu recently told US media that he plans to scrap the "override" clause enabling the Knesset to overturn judicial decisions with a simple majority vote. But various right-wing elements of his coalition are trying to force him to reverse himself on that issue. They may succeed, since Netanyahu can't stay in power without their support.
In previous posts, I outlined the reasons why I oppose the right-wing government's attack on judicial review, and how this is consistent with my opposition to left-wing proposals to undermine judicial review in the US. In the latter post, I also responded to various arguments for differentiating the two cases, such as claims that Israeli judicial review is illegitimate because Israel does not have a written constitution. Some commentators on both right and left have taken inconsistent stances on the Israeli and US cases. Here, as elsewhere, partisan and ideological commitments often trump long-term institutional principles.
Left-wing Americans who (justifiably) condemn Netanyahu's plan, but favor gutting judicial review in this county, should ask themselves whether they really want the next right-wing Republican president to be free of judicial constraints. They might also consider whether it would have been a good thing if Donald Trump had been able to successfully defy judicial rulings against his efforts to overturn the results of the 2020 election.
While I oppose the right-wing government's plans, I have also argued (as have many experts in both Israel and the US), that Israel would do well to develop stronger non-judicial checks on centralized government power, such as systems of federalism and separation of powers. It's dangerous to put too many eggs in the vulnerable judicial basket. Israel should also adopt a written constitution that clearly elevates fundamental rights and structural constraints on state power above ordinary legislation, and puts judicial review on a firm foundation.
There is in fact a long history of Israeli proposals for a written constitution, including a recent call to draft one by opposition leader and former prime minister Yair Lapid. But the idea seems unlikely to come to fruition anytime soon.
In the meantime, it is probable that severe conflict over judicial reform is going to continue in Israel. The government seems intent on pursuing at least some of the more radical elements of its agenda, and opponents have responded with massive protests- among the biggest in Israeli history, and various strikes and disruptions. I hope the government fails in its efforts, and that the conflict over its dangerous policies does not cause too much harm.
UPDATE: I should note that, in suggesting that Israel would do well to adopt a written constitution, federalism, and separation of powers, I do not mean to suggest that these structures should be the same as those in the US. While extreme centralization and concentration of government power is a bad idea for both countries, it doesn't follow that they should adopt identical (or very similar) approaches to limiting and decentralizing it.