Prof. Sam Lehman-Wilzig: A One-Branch “Democracy” is Not Rooted
Political “devolutions” i.e., the gradual withering away of the democratic structure of government, are not easily recognizable – compared to political revolutions that usually occur all at once. All the more reason to analyze what’s happening these days in Israel and in the United States.
One of the two pillars of modern democracy (the other being broad-based civil rights) is the separation of powers between the three branches of government: Legislative, Executive, and Judicial. I listed the Legislative first because at least in democratic theory this is the beating heart of the system where laws are passed by representatives closely tied to the populace through periodic elections. The Executive branch is then required to execute (carry out) such legislation. When disagreements between the two branches crop up regarding the intent, interpretation, or implementation of those laws, the Judicial branch steps in and decides.
Over the past half century in the U.S., and more recently in Israel, the balance of power between these two main branches has slowly moved towards the Executive branch. One reason for this: the pace of modern life often demands a quick response, something the Legislative branch is not equipped to do (its forte is reasoned debate and deliberation). This is especially the case when the country is faced with external threats – something that Israel suffers from more than the U.S. (for that matter, more than almost any other country in the world).
The real problem arises when such a tectonic shift seeps into other areas of government policymaking, mostly domestic. This can be seen clearly today in Israel and in the United States. President Trump has decided independently on a host of policies that are embedded in the Constitution or in legislation as being within the purview of Congress: tariffs; immigration; climate; etc. Trump’s argument: America is in a “national emergency,” and therefore he has the authority to make such decisions without Congressional approval or budgeting.
Unfortunately, Republican Party members of the House and the Senate have almost unanimously gone along with such unilateral, constitutionally questionable decisions, without any attempt at pushback to (re)assert Congressional authority. One might add that such lockstep acquiescence can also be seen regarding several nominations for executive office, without any serious experience in their intended bailiwick – other than blind loyalty to the president.
For its part, Israel has been in a state of war for almost two years. Yet the attempt to radically weaken the State Attorney General started well before the war broke out. Indeed, the ensuing public outrage and divisiveness might well have been a factor in encouraging Hamas to attack Israel on Oct. 7, 2023. The most recent example of Executive Branch overreach occurred this past week: removing the Likud’s own MK Yuli Edelstein from the chairmanship of the Knesset’s important Security & Foreign Affairs Committee, to be replaced by Likud MK Boaz Bismut who is more amenable to pushing through highly unpopular legislation enabling many (most?) haredim not to serve in the army.
As a result of all this, the public in both countries have turned to the courts (District and Supreme) to halt the erosion of legislative power and/or to halt the executive’s “unconstitutional” power grab. Presently, the U.S. picture is decidedly mixed: several presidential Executive Orders have been (temporarily) halted pending more serious consideration of the issues; others have been allowed to move forward. Although President Trump has occasionally railed against a few decisions that went against his policies, there has been no attempt to undermine the Supreme Court’s authority to decide such matters.
Not so the situation regarding Israel’s Supreme Court. The initial “Judicial Reform/ Revolution” (pick your terms depending on your political ideology) was, and continues to be, aimed at diminishing the Judicial Branch. First, by weakening the State Attorney General who straddles the Judicial Branch and the Executive Branch; this office constitutes the main legal bulwark against the government doing something legally unacceptable or even questionable. Second, by undermining the political independence of the Supreme Court through the Minister of Justice’s plan to revamp the Appointments Committee that appoints justices; this, so that the Executive Branch has control over who gets appointed to the country’s highest court.
True, the U.S. Senate chooses the Supreme Court justices (upon the president’s nomination), so that there is a precedent for that process to be politicized. However, Israel doesn’t have the same constitutionally structured separation of the three branches of government, thus necessitating far more judicial independence.
The Israeli public understands this well. The result: almost unprecedented, massive protests during 2023 until October 7 when Hamas attacked. Nevertheless, despite the ongoing war and non-release of the remaining hostages, the Israeli government this week went ahead to “fire” the State Attorney General – a move that by most accounts will be struck down by Israel’s Supreme Court because there already exists a process for such a move: a professional, independent committee mandated by law.
The key word in all this: “independence/independent.” Without widespread freedom of thought and action, the natural tendency of the political system everywhere is to concentrate power. The result: at the end (if it comes to that) we are left with only one authoritative branch – and individual – solely in charge of the whole polity. Technically, that can still be called “democracy” if one wishes to view the term narrowly as involving a periodic election but nothing beyond that (e.g., Putin’s Russia). This is precisely what Israel’s present government is claiming: “We won the election, so we have a mandate to do (virtually) anything.” However, that’s a perversion of modern democracy – especially when poll after public opinion poll shows that a large majority of Israelis are opposed to changing the rules of the judicial game (i.e., firing the Attorney General, changing the justice’s appointments process, etc.).
What can be done to bring back some balance to the system? Stay tuned: next week I’ll put forward some constructive proposals to strengthen Israel’s “demos kratos” by returning some direct power to the people.
