Judicial review of constitutional transitions: war and peace and other sundry matters.
1. Distribution of Material Goods to the Public
The decision concerning the authority of the Committee for the National List of Reimbursed Drugs (NLRD) to convene on the eve of Knesset elections dealt with the distribution of material goods by a caretaker government. (171) At first glance, the decision is mystifying. The NLRD Committee was banned from convening before the elections but was permitted to convene immediately after the elections, even before a new government was formed. (172) It was further emphasized in the Israeli Supreme Court's decision that, after the elections, the caretaker government was permitted to decide to adopt recommendations of the Committee to expand the NLRD. (173)
How can the court's decision be explained? If the ban on convening the NLRD Committee was based on the government's status as caretaker, this status would not have changed after the elections until a new government was formed. It would have been expected that a caretaker government's actions banned before elections would be even more verboten after elections. (174) In the words of President Barak in Weiss, the range of reasonableness in which a caretaker government is entitled to act "becomes narrower--and the need for restraint and reserve made more necessary--after the elections, and before the elected prime minister begins his term in office." (175) But the NLRD judicial decision allows a caretaker government to perform functions after elections that it is not allowed to perform prior to elections.
Although this was not explicitly stated by the court, this Article suggests that the rationale underlying the NLRD decision was the concern that, if the NLRD Committee and, in turn, the government decided to expand the NLRD before elections, this would have constituted a form of "bribery" and an attempt to distribute material goods in the form of drugs in order to gain electorate support for the existing government. (176) Justice Miriam Naor might have been insinuating this when writing that: "The real conflict is that the government decision, which the petitioners are aiming for, will be rendered before the elections and under the pressure of elections, thereby increasing the chances that the government will accept the NLRD committee's expected recommendation." (177) Since this involved a risk of distribution of material goods as a means of influencing the election's results, the court saw fit to bar the expansion of the NLRD before the elections, but permitted it after the elections when there was no cause for concern that the decision could constitute a form of election bribery. Obviously, the distribution of drugs after elections cannot change election's results that have already been decided.
The decision to expand the NLRD--as opposed to the timing of the expansion--did not call for caretaker restraint in the court's view, since there was a "vital public need" for taking action to save lives. (178) Moreover, this Article suggests that the decision to expand the NLRD did not deviate from the country's regular course of business. Consequently, this action was not significant enough to warrant postponing the action for a new government.
Another example of this category of material goods may be found in the court's decision regarding the timing of submission of investigative committees' reports. Regional Municipality of Modi'in v. Minister of Interior dealt with the question of when investigative committees should submit their reports to the Ministry of the Interior. (179) Because the reports implied change in the boundaries between local authorities and had potential implications for the distribution of income among municipalities, they could have affected the regional elections. (180) Probably for this reason, the court decided that "[t]he committee's recommendations shall not be submitted until after the elections for the local authorities." (181)
Because the court distinguished between pre- and post-election distribution of goods, this Article suggests that if the court believed the government intended to distribute material goods on the eve of elections as a means of indirectly influencing the election's results, the court would prohibit the action before the elections but allow it afterwards, even before the formation of a new government. In principle, this could be within the government's regular sphere of authority; thus, if not for the timing on the eve of elections, it would not have been problematic even for a caretaker government.
2. Comparing Distribution of Material Goods and Public-Sector Appointments
But why is the distribution of material goods different from public-sector appointments? On its face, both constitute distribution of goods on the eve of elections. Yet, the court applies a different law to the two categories. (182) Public appointments must wait until a new government is formed. (183) In contrast, the government may not distribute material goods pre-elections, but can do so post-elections and even before a new government is formed. (184)
This Article suggests that the divergent treatment can be explained by examining the beneficiaries and consequences of each act: a public appointment benefits the appointee; for him or her, it resembles the distribution of goods. Yet the consequences to the public are continuous throughout the appointment period and extend well beyond election time. Thus, the appointment is arguably a way to continue influencing, setting, and even entrenching the government's agenda after the government's caretaker period ends. A public appointment should therefore not be regarded as purely a matter of political hygiene, but should be avoided until a new government is formed.
The distribution of actual material goods, on the other hand, benefits members of the public who receive the good and certainly can influence elections if done near elections. But its effects are usually short-lived; research indicates that people are more affected in their immediate decisions by short- rather than long-term considerations, and thus distribution done years in advance of the next election will probably not influence people's votes. (185) It makes sense, therefore, that the government may distribute material goods to the public as long as it is done after the elections, whether or not a new government has formed.
3. Comparative Experience with Distribution of Material Goods to the Public
Not only do Israeli governments distribute material goods to the public during transition times, but U.S. presidents, too, utilize their power during the end of their presidency to distribute favors and goods to individuals, interest groups, and the public at large. In addition to the exercise of the appointment power already discussed, which often requires the Senate's cooperation, presidents utilize their unilateral pardon power in favor of contested cases. (186) The pardon and appointment powers benefit specific individuals.
Presidents also unilaterally declare vast parcels of land as national monuments and parks. (187) This may already serve as a "bribery" technique to affect the election's results. Indeed, President Clinton turned many acres into nature reserves in order to assist Al Gore in his election campaign. (188) It should be noted, however, that it is more common for presidents to exploit their unilateral power in the ways mentioned after elections rather than before. Two explanations may be offered for this post-election behavior. First, when this behavior is manifested after elections, it is generally intended to affect presidents' "legacy" rather than influence election results already decided. (189) Second, presidents utilize these unilateral powers more after elections when they fear influencing the ballot in unwanted ways if actions are pursued before elections. If their behavior carries the risk of being unpopular, they will wait until after elections to execute their plans. (190)
These last-minute actions are typical to U.S. lame-duck presidents but not to caretaker governments in parliamentary systems. (191) This divergence can be attributed not only to the existence of effective caretaker conventions in parliamentary systems, (192) but also to the fact that, in parliamentary systems, prime ministers typically do not enjoy unilateral powers equivalent to those enjoyed by U.S. presidents. (193) Furthermore, this lame-duck concern about presidential legacy is more characteristic of the "cult of personality" that accompanies presidential rather than parliamentary systems. (194)
This Article concludes by stating that the Israeli Supreme Court stepped into the vacuum caused by the lack of constitutional conventions regarding Israeli caretaker governments. The court will not hesitate to restrict caretaker actions if it believes that the actions should be postponed until a new government is formed, as is the case with public-sector appointments. (195) In this respect, the court functions as a restraining power on Israeli caretaker governments, much like constitutional conventions in other parliamentary systems. (196) But no similar restraining power inhibits U.S. lame-duck presidents. This perspective only makes the Israeli Supreme Court's position on peace negotiations more puzzling. Why does the court permit caretaker governments to negotiate for peace but ban them from making public-sector appointments? Shouldn't one be worried about democratic legitimacy or extraneous considerations when caretaker governments negotiate for peace? Or does the court's position show that regulating caretaker action has or should have limitations bounded by the political question doctrine? In the next Part, this Article proposes and critiques a number of possible explanations for the court's divergent treatment of peace negotiations, on the one hand, and public-sector appointments, on the other.
IV. WHY DISTINGUISH PEACE NEGOTIATIONS FROM PUBLIC- SECTOR APPOINTMENTS?
From the Israeli judicial decisions described above, several rationales may be derived that justify the divergent judicial treatment of public-sector appointments and peace negotiations during caretaker periods. These rationales include: (1) the act's reversibility; (2) the importance of representing the people's most current opinion when making the act; and (3) the justiciability of the issue, including the existence of alternative control mechanisms to the court's intervention. This Part argues that these rationales do not support the contradictory outcome wherein a caretaker government may conduct peace negotiations but may not appoint public-sector officials. Thus, the divergent Israeli judicial treatment amounts to inconsistency. The next Part argues that Israel's experience with judicial review over transitional governments does not prove that this matter should be treated as nonjusticiable. Rather, this Article discusses how a properly designed law applied to transitional governments may lead to better, more consistent results in judicial decisions.
The Israeli Supreme Court differentiated between peace negotiations and public-sector appointments, explaining, inter alia, that appointments are not reversible, while peace treaties are, since the latter can be made conditional upon legislative ratification. (197) Does this distinction legitimize peace negotiations by a caretaker government?
1. Distinguishing Signing from Ratification
In allowing caretaker governments to negotiate for peace, the Israeli Supreme Court in effect relied upon the distinction prevailing in contemporary international law between the stages of signing and ratifying international agreements. While in the past it was enough to sign a treaty, the presumption today is that all treaties must be ratified before they become binding by international law. (198) The law changed largely due to the development of democracy and the principle of separation of powers. Historically, the negotiators were the representatives of the Crown, carrying out its orders, and international law did not anticipate a discrepancy between the positions of the ruler and the treaty signatories. (199) In modern times, with the separation of powers, it became apparent that the executive conducting international negotiations might not represent the opinions of the legislature. (200) Therefore, the gap between signing and ratification serves the need for efficient negotiations subject to the veto power of the legislature, as required by the constitutions of many countries. (201)
It should be noted that oftentimes the treaty is both signed and ratified by the executive for purposes of international law, even when the internal law of the country requires its ratification by the legislature. (202) In the latter case, however, before the treaty is ratified by the executive for international law purposes, the executive requests the consent of the legislature as prescribed in the internal law. (203)
2. The Significance of Signing
Does this legal focus on ratification imply that the signing stage is of little consequence? Theoretically, international undertakings could be shirked by nonratification. Indeed, many countries have not ratified the agreements they signed. (204) Nonetheless, this Article argues that it would be wrong to diminish the importance of signing international agreements for several reasons. First, the distinction between the two stages, signing and ratification, primarily applies to multilateral treaties, in which a country is only one of many players. (205) It thus has less bargaining power, especially if it is not an influential state, and it must go home with the proposed draft of the agreement and obtain the approval of the relevant internal institutions, primarily the legislature.
The distinction between the stages in bilateral treaties is more problematic. If the country is dissatisfied with the treaty, it has the prerogative to refuse to become a party to it from the outset. International law recognizes the duty of good faith as a core duty, (206) which means that a country should not sign a treaty when the executive knows that it does not have legislative support to ratify it.
Second, the signing stage per se creates an interim obligation under international law. In accordance with the Vienna Convention, which enjoys the status of customary international law, at the stage between the signing and ratifying, "[a] State is obliged to refrain from acts which would defeat the object and purpose of a treaty." (207) This obligation is established only at the interim stage and can be stipulated otherwise in the treaty itself. (208) Moreover, this obligation becomes void if the state indicates that it does not intend to ratify the treaty. (209)
Yet, the very interim obligation gives legal effect to the act of signing an international agreement. In order to avoid these interim obligations, George W. Bush used the unprecedented tactic of "unsigning" the Rome Statute. (210) Interestingly, President Clinton was criticized for signing the Rome Statute as a lame duck. (211)
Third, the final draft of the agreement is usually formulated at the signing stage. After that, ratification is mostly a binary all-or-nothing decision, particularly in the case of bilateral agreements. (212) Of course, if the government knows that it needs legislative approval to ratify a treaty, the legislature's position will have already influenced the content of the agreement. (213) This assumption, however, is problematic in light of the considerations presented below.
Fourth, a decision by the legislature to not ratify an international treaty, which was signed by the government, may damage the state's international reputation and its ability to conduct negotiations in the future, especially bilateral agreements. Therefore, the legislature sometimes approves an international agreement that it would otherwise not have agreed to. (214)
Fifth, the damage to a state's international reputation stemming from a decision not to ratify may be detrimental to its relations with the other contracting state(s). In extreme cases, failure to ratify might also lead to formal or informal sanctions by the international community. This situation is especially relevant when the signatory is a small country and the agreement has major implications for other states. (215)
It is no coincidence that noted writers on the powers of transitional governments caution that these governments must exercise restraint, especially when conducting foreign affairs. (216) In particular, governments must act in cooperation with the legislature in this sensitive area, which calls for stability and continuity. The ability of a country to advance its interests is dictated to a large degree by its reputation for reliability. (217)
This position is also supported by the fact that there is an inherent tension between international law and the basic tenets of democracy. While democracy usually enables the majority to change its statutes (subject to its constitution), under international law a contracting party may not unilaterally retreat from its obligations, even if there has been a change of government in its country. (218) Therefore, great care must be taken to ensure that the caretaker government does not overstep its authority, particularly in the realm of foreign, as opposed to internal, affairs. While a new government has many tools to overturn recent decisions in the realm of internal affairs, they are less available when it comes to the conduct of foreign affairs. (219)
Thus, the Israeli Supreme Court's distinction--between public-sector appointments, which it treats as final, and international agreements, which it treats as provisional because they may be subject to the legislature's approval--is not convincing. All of these arguments support a decision by the Israeli Supreme Court to restrain caretaker governments from engaging in international negotiations. This Article now examine whether the Israeli peace process may suggest a different conclusion.
3. The Israeli Peace Process
In the context of an Israeli peace treaty, how would these considerations be expressed? Had the peace treaty discussed in Weiss been signed, it would have been difficult for the Knesset to extricate itself from the bilateral agreement, both for fear of damaging its reputation and because of the possibility of international sanctions. "Unsigning" the treaty would likely have further eroded its relations with the Palestinian Authority. It is therefore questionable that making the ratification of the agreement subject to its approval by the Knesset would have been enough to overcome the legitimacy problem of having a caretaker government that did not enjoy the confidence of the Knesset negotiate and sign the peace agreement.
Moreover, the reality of peace talks in the Middle East is such that negotiations often begin where previous talks ended. (220) Thus, for instance, Attorney General Elyakim Rubinstein warned Prime Minister Barak's government in early 2001 that it was inappropriate to conduct negotiations during a transition period. (221) According to him, Israel's experience in reaching tentative understandings in negotiations is that '"an understanding once reached cannot be taken back', meaning it is very difficult to go back on something perceived as a concession in the negotiations." (222) It should be emphasized that the warning was given regarding the very same peace negotiations that were at issue in Weiss. Similarly, more recently, President Obama made it clear to Prime Minister Netanyahu that "[w]e won't start the negotiations from scratch, we will not take the historical record and toss it aside." (223) According to the same source, "There's an historical record of all past negotiations." (224) It is therefore important that Israel's negotiators have a mandate from the electorate to negotiate.
Furthermore, under Israel's law, once the Israeli Government has ratified a treaty, it becomes binding upon the State of Israel under international law, even if the Knesset opposes the treaty. (225) Israel has also stated this policy in a written declaration to the United Nations:
(A) [T]he legal power to negotiate, sign and ratify international treaties on behalf of Israel is vested exclusively in the government of Israel and is in the charge of the Minister for Foreign Affairs; (B) where the Knesset has given its approval to the ratification of the treaty, the act of ratification is signed by the President of the State. (226)
The language of Basic Law: The President of the State provides that the President "shall sign such treaties with foreign states that have been ratified by the Knesset." (227) However, the government and ensuing judicial decisions interpreted this provision as requiring the President to sign the treaty only when the government requested the Knesset's approval and such legislative approval was de facto granted. (228) The provision was not interpreted to require the consent of the Knesset as a precondition for ratifying treaties. This is the representation that Israel made to other states with which it was conducting negotiations. (229)
Therefore, changing the law concerning negotiations with the Palestinian Authority to require the Knesset's approval as a precondition for the agreement to be internationally binding would have required Israel to explicitly declare this to the other party, and perhaps also to the UN institutions, during the negotiations stage in order to satisfy its duty of good faith in conducting negotiations. A declaration before the High Court of Justice that the government of Israel will make the validity of the agreement contingent upon Knesset's approval is not enough. (230) Yet, the court in Weiss did not require that the government notify the other party or the UN institutions of the need for the Knesset's consent as a precondition for the agreement's international validity.
The court also did not make the validity of a signed agreement conditional upon the approval of the incoming newly elected Knesset and government. Therefore, one could imagine an agreement that was signed by a caretaker government, with its narrow mandate, and was further ratified by an outgoing Knesset, which also had a narrow mandate. (231)
Moreover, even when the Attorney General in Weiss attempted to stipulate in the agreement, if reached, that "the agreement's validity depended upon approvals prescribed by internal law," it would have been for naught, since internal law does not require the Knesset's approval to give effect to an international agreement in the international realm. (232)
In fact, it is not even clear that an agreement needs to be approved by the Knesset for it to become effective under internal law. The court in Weiss declined to opine on whether constitutional custom requires that peace treaties involving territorial changes be ratified by the Knesset. (233) Existing legislation does require the Knesset's approval for territorial changes, but only with regard to territories governed by the law, jurisdiction, and administration of the state (i.e., not including Judea and Samaria, or as commonly termed, the West Bank). (234) In this spirit, the court in the Livnat case did not interpret Weiss as contemplating the additional step of ratification by the Knesset. (235) At the same time, as far as constitutional rights of citizens may be compromised as a result of the peace treaty, this constitutional infringement would have to be authorized by statute.
In summary, it is doubtful whether making the validity of a peace treaty conditional upon the Knesset's approval can remedy the basic flaw of a caretaker government, without the Knesset's confidence, engaging in peace talks. The very acts of negotiating and signing the agreement have weighty implications. For example, they affect: (1) Israel's reputation and its ability to engage in future negotiations; (2) whether international sanctions will be imposed if the agreement is not ratified; (3) whether the Knesset must vote on the agreement en bloc, without being able to address its content; (4) the duty of good faith in conducting bilateral negotiations; and (5) any interim obligations that apply by international law upon signing the agreement.
B. The Mandate Issue
It follows from the judicial decisions that the court was, in fact, more stringent in protecting the people's ability to exercise its will over public-sector appointments than it was with regard to peace talks. This Article now examines the importance of the mandate in each of these categories and whether it justifies distinguishing between peace negotiations and public-sector appointments.
1. Peace Negotiations
The Israeli Supreme Court defined Israeli democracy as one requiring, inter alia, that "decisions fundamental to citizens' lives must be adopted by the legislative body which the people elected to make these decisions. Society's policies must be adopted by the legislative body...." (236) The court emphasized that "[t]he desire to preserve the elevated status of the Knesset is of general application" (237) and is not confined to the nondelegation doctrine. (238)
This approach has even greater applicability in decisions involving territorial changes. Relinquishing governmental authority and territorial changes are considered constitutive acts that require special approval from the People. (239) In Israel, in contrast, referenda or direct appeal to the People have until now not been de facto exercised. (240) Furthermore, most of the territory that is the subject of negotiations with the Palestinians has never been annexed to the territory of the State of Israel, nor is it governed by the law, jurisdiction, and administration of the state. (241) It is treated under Israeli law as territory under "belligerent occupation" and not under the sovereignty of the state. (242) Thus, relinquishing control over these territories does not require the People's consent in a referendum under Israeli law. (243)
At the same time, since citizens of Israel have settled in parts of the territory with the government's cooperation (or with its turning a blind eye), it is necessary that the Knesset be a full partner in processes that could prejudice the constitutional rights of citizens and inhabitants. (244) This makes it problematic to empower a caretaker government to conduct such significant negotiations when it does not enjoy the Knesset's confidence. This is all the more applicable when the government adopts measures that the Weiss court acknowledged would spark fierce public debate, are a pivotal topic in elections, have led to the fall of the government, and about which the Knesset has already expressed its opinion against them. (245)
In addition to territorial changes, the conduct of foreign affairs in general is a subject that requires the executive to enjoy a mandate from the people. Thus, for example, Walter Bagehot wrote that in the parliamentary system a vote of no confidence is meant to force the replacement of a prime minister, especially when people are not happy with his or her decisions concerning foreign affairs. (246) Lori Damrosch suggested that the impeachment process could be similarly used against a president who prevents Congress from effectively overseeing the conduct of foreign affairs, thus materially breaching separation of powers principles. (247)
Does this requirement of restraint in foreign affairs during caretaker administrations serve right-wing ideology in Israel? This Article suggests that the answer is no. The duty of caretaker governments to exercise restraint is politically neutral, serving neither right- nor left-biased ideology. It prevents not only peace negotiations by caretaker administrations, but also midnight actions of the right. For example, a petition was filed against a preelection decision of Prime Minister Netanyahu in 1999 to close the Orient House in East Jerusalem. (248) It was argued that the decision was an attempt to indirectly influence the election's results. Moreover, it could have led to bloodshed in the city. (249) In response, the court issued a one-week injunction barring the closure of the Orient House, in effect granting the petitioners the final relief they sought, when elections were held that same week. (250)
One may also wonder whether the mirror image of conducting negotiations toward a peace agreement is waging war. The court in Weiss did indeed infer the government's authority to conduct peace negotiations from its authority to go to war. (251) Recently, Prime Minister Olmert's caretaker government initiated a military campaign in Gaza known as Operation Cast Lead, which was the subject of the now-refuted Goldstone Report. (252) It could be argued that the timing of this campaign enjoyed indirect legitimacy by the Weiss decision.
Furthermore, even if these military operations were unavoidable, it was among the caretaker government's crucial tasks to seriously consider the propriety of carrying out the campaign as a caretaker. The lack of public debate about the authority of Prime Minister Olmert's caretaker government to undertake Operation Cast Lead, along with bold statements of Prime Minister Begin about seizing the caretaker period to bomb the nuclear reactor in Iraq in 1981, (253) suggest that considerations inhibiting actions by caretaker governments are not part of the current political culture. It should be noted, however, that in the end, Operation Cast Lead had the consent of the opposition and was therefore not controversial. (254) This mitigates the difficulty of conducting this action during a caretaker period.
To conclude, the principle of restraint in the actions of caretaker governments in foreign affairs should be applicable to both peace negotiations and the conduct of military operations. The principle is thus politically neutral and does not a priori benefit either side of the political spectrum.
How then can the Weiss ruling be explained in the context of the mandate? A distinction can be drawn between the Weiss ruling and the Livnat ruling, although both deal with conducting international peace negotiations during a caretaker term. The Weiss ruling involved a caretaker government headed by a prime minister elected through direct elections. (255) During that era, the Israeli system of government was a fusion of a quasi-parliamentary and a quasi-presidential system. (256) Therefore, the Prime Minister enjoyed a separate mandate from the electorate--one that competed with the mandate that the Knesset received in elections. Hence, even though the government lost its parliamentary majority and arguably even the confidence of the Knesset, one may contend that the Prime Minister still enjoyed a separate direct mandate from the electorate during the preelection period that had not yet been repudiated. This direct mandate enabled the administration to continue to conduct negotiations with the Palestinians, notwithstanding its caretaker status. Similarly, in the United States, it is customary for the outgoing president to have full presidential power until elections because U.S. presidents are elected by the people and enjoy an independent direct mandate. (257) From this standpoint, the Weiss ruling could have been justified, although the justices in Weiss did not offer this justification.
The Livnat ruling, on the other hand, was delivered in December 2008, after direct elections of the Prime Minister were repealed and a purely parliamentary system was restored. Under this system, once the government loses the confidence of the Knesset, it does not have a separate direct mandate from the electorate. It would therefore be improper to conduct negotiations, especially those having fateful consequences on the nation's future. Yet, the court in Livnat did not note this distinction and did not arrive at an outcome different from Weiss, even though this key difference logically leads to divergent holdings.
2. Public-Sector Appointments
The court took a much stricter stand on the issue of public-sector appointments. It entirely banned them, even when the government (regardless of its caretaker status) was prohibited from intervening in the appointment, and thus there should have been no reason to prohibit the appointment during the caretaker period. (258) This Article asserts that the legitimacy of public-sector appointments made during caretaker tenure should depend on the degree of governmental influence on the appointment. When the government does not control a majority of the appointing body, the legislature seems to have expressed the view that the appointment is apolitical. In such cases, it is doubtful whether the appointment should be put on hold during the term of a caretaker administration.
For example, the date on which a chief rabbi can be appointed is dictated by statutory provisions and not subject to the arbitrary wish of an outgoing government. (259) Moreover, the Knesset and the government do not hold a majority on the committee that makes the appointments, which is done by secret ballot. (260) In contradiction to the court's stance, it is thus doubtful whether caretaker status should prevent the appointment of chief rabbis. Yet, it is not enough to rely only on the statutory language. If the government and the Knesset have de facto decisive influence on the appointment despite the legal appearance of lacking it, it should be deferred during caretaker periods. (261)
As for the restriction on judicial appointments by caretakers, a similar argument was raised in the United States during the first term of President Bush. Bruce Ackerman argued that, since the presidential race remained undecided and the Supreme Court halted the Florida recount, Bush did not have a mandate to appoint justices to the U.S. Supreme Court. (262)
When the system of appointment is political, as it is in the United States, it is problematic to appoint justices during a caretaker or lame-duck government. As discussed, the renowned Marbury v. Madison (263) case was sparked by the infamous decision of incoming Thomas Jefferson to revoke last-minute appointments made by his predecessor, John Adams, during the lame-duck presidency. (264) Adams made those rash last-minute appointments to gain control of positions of power beyond the period of his mandate. (265)
In Israel, whether judges can be appointed during the term of a caretaker government must be inferred, among other things, from one's perspective on the judicial-appointment system. (266) If it is believed that the appointment system is based on professional merit alone, as has been asserted by the Zamir public committee that dealt with the subject, then there is no need to delay the appointment. (267) On the other hand, if the appointment committee is de facto significantly driven and swayed by politicians, making its activities politically motivated, then the appointment should be postponed until after elections.
To conclude, from a democratic point of view, it seems that the far-reaching implications of peace treaties on citizens' lives and on national security far outweigh the importance of appointing chief rabbis and even Israeli Supreme Court justices. Where peace treaties are concerned, more so than with public-sector appointments, it is vital that government actions represent the opinion of the people. Moreover, when the Knesset and the government do not have decisive influence on the appointment, the justification of delaying the appointment is questionable, even during the term of a caretaker administration. It may cause unnecessary paralysis in state affairs.
C. The Justiciability Issue
It may be argued that justiciability offers another possible explanation for the judicial decisions that distinguish between peace talks and public-sector appointments. According to this explanation, the Israeli Supreme Court declines to intervene in peace negotiations because it views the issue as one in which the executive branch has a very broad scope of discretion. (268) It is therefore hard for the court to find a decision that falls outside this scope and is considered unreasonable. Consistent with the general Israeli judicial policy of treating virtually every subject as justiciable, (269) the court does not refer to peace negotiations as nonjusticiable. Yet, the results of its decisions show maximum self-restraint from intervening in issues related to national security and foreign affairs. Academics in the legal-realism camp will explain that there is greater political sensitivity and inherent danger in the court's intervention in peace negotiations than in public-sector appointments and that this explains the court's divergent treatment of the two. (270)
In other parliamentary systems, it is indeed customary to treat the powers of a caretaker government as being nonjusticiable or falling within the realm of constitutional conventions that are not enforced by the courts. (271) But this attitude applies in these systems to all realms of caretaker activity. Given Israel's broad approach to justiciability, it is unlikely that peace negotiations by a caretaker would or should be singled out as nonjusticiable. Indeed, the assumption would be that, if the court does not intervene, it means the conduct is proper. (272) Moreover, the majority in Weiss did not reject the petition as nonjusticiable, but rather ruled that conducting peace talks twelve days before elections was "reasonable." (273)
Are there meaningful comparisons to peace negotiations in other areas of state activity? In petitions involving security matters that raise human rights infringements, the Israeli Supreme Court does not refrain from intervening only because national security is at stake. Rather, it examines whether the infringement of human rights is constitutional. The court, for example, intervened on issues concerning the mode of conducting war, including the issue of targeted killings and the use of human shields. (274)
This Article argues that the court should perform a similar supervisory function with regard to caretaker governments' discretion to conduct peace negotiations. The court in Weiss and Livnat was not called upon to express its opinion on the content of the negotiations, but on their timing. Judicial supervision of caretaker activity is needed not only to demarcate the constitutional powers enjoyed by the different branches of government, but also to preserve the heart of the democratic process--the right of the people as a collective to determine its arrangements on peace and security matters and the individual right of each member of the political society to vote and decide on such matters. (275) These rights are infringed when a caretaker, rather than a regular, government decides war and peace issues. Furthermore, judicial review in this sphere of activity strengthens democracy, in John Hart Ely's terms, rather than being counter-majoritarian. (276)
Judicial supervision of caretaker activity in foreign affairs matters will align with recent calls made by experts on international law that courts exercise judicial review over the conduct of foreign affairs in general, and the transfer of sovereign powers in particular. (277) These experts suggest that there is real concern that the executive will increase its power at the expense of the legislature by regulating matters through international agreements, which previously were regulated by domestic legislation. (278) If the executive takes action in these areas without approval from the legislature, this could create a severe "democratic deficit." (279)
It should also be emphasized that, in the Israeli context, the Knesset has no effective means of supervising the exercise of authority by a caretaker government. It cannot "fire" a government that is already a caretaker. (280) Even a reprimand by the Knesset does not obligate the government to follow the Knesset's mandates. (281) Furthermore, particularly when international negotiations are involved, the supervisory power of the Knesset is limited. Without active and volitional reporting by the government to the Knesset, the latter cannot know what precisely is going on in the negotiations room. It is therefore vital that a government conducting negotiations, at minimum, be one that enjoys the confidence of the Knesset, not a caretaker government.
This Article concludes that the various arguments which can be used to explain the judicial policy of not intervening when caretakers conduct peace negotiations as opposed to public-sector appointments--(1) the reversibility of the decision, (2) the importance of representing the electorate opinion on the subject, and (3) the issue of justiciability, including whether there are alternative mechanisms of review--all demonstrate that the court's intervention is actually warranted, particularly when peace negotiations are concerned. Furthermore, judicial intervention is even more warranted in peace negotiations than in public-sector appointments. The lack of uniformity in the judicial results is tantamount to inconsistency. It may also contribute to the creation of a political culture that gives caretaker governments carte blanche to make long-term historical decisions that are the subject of fierce public controversy.
Those who are not willing to see the court intervene so boldly in international affairs can at least agree that the court must declare the issue explicitly nonjusticiable, a route the court has refused to take. By declaring the issue nonjusticiable, the court at the very minimum would have refrained from casting legitimacy to caretaker action. This in turn would have left the government exposed to public criticism. (282)
In the next Part, this Article suggests that the Israeli jurisprudence on caretaker action should not lead to the conclusion that judicial review of caretaker action is unfeasible or not desired. Rather, properly designing the law that applies to caretaker action may lead to better judicial results, while also achieving the sanguine goals of enhancing democracy and diminishing extraneous decisions by caretaker governments.
V. GENERAL PRINCIPLES OF THE DESIRED LAW
The conflicting results in Israeli Supreme Court jurisprudence should not lead to the conclusion that caretaker activity cannot be regulated. Rather, the experience of other parliamentary systems with caretaker conventions suggests that proper guidelines may contribute to a healthier functioning democracy, if these conventions are obeyed. If they are not or those conventions do not develop, then this Article argues that the judicial system should step in and enforce restraint on caretaker activity. (283)
Interestingly, in India, the President fulfills a special supervisory role during transitional periods and ascertains that caretaker governments do not exceed their limited mandate. (284) In regular times, in contrast, the President must follow the advice of his ministers because they enjoy the legislature's confidence and he holds only a rather symbolic role, much like the Crown in Britain. (285) This special guardian role of the President at times of caretaker politics received the assent of the Calcutta High Court. (286) The Court stated:
There is no mention of any care-taker Government as such, in our Constitution or in the constitutional law.... But an extraordinary situation like the present, in my opinion, calls for a care-taker Government and therefore, the respondent No. 1 [Prime Minister] and his Council of Ministers can only carry on day-to-day administration in office which are necessary for carrying on "for making alternative arrangements". In effect the President, in my opinion is therefore, not obliged to accept the advice that the respondent No. 1 and his Council of Ministers tender to him except for day-to-day administration and the Council of Ministers and the respondent No. 1 should not make any decisions which are not necessary except for the purpose of carrying on the administration until other arrangements are made. This in effect means that any decision or policy decision or any matter which can await disposal by the Council of Ministers responsible to the House of People must not be tendered by the respondent number 1 and his Council of Ministers. With this limitation the respondent No. 1 and the Council of Ministers can only function. And in case whether such advice is necessary to carry on the day-to-day administration till "other arrangements are made" or beyond that, the President, in my opinion, is free to judge. (287)
The discussion should thus focus on the proper design of the law applicable to caretaker activity. This Article rises to this challenge by showing where the Israeli Supreme Court could have adopted a better law and why such law would have reached better results. Furthermore, this law may fit various jurisdictions dealing with the challenge of transitional governments. This law may be in the form of constitutional conventions that may even be codified in cabinet manuals. If constitutional conventions prove to not be strong enough to restrain governments, then the courts should step in and enforce these guidelines. Enforcing these conventions in courts will turn them into binding law.
A. Regular-Course-of-Affairs Criteria
The Weiss court rejected the criterion of "regular course of affairs" as a measurement for the legitimacy of caretaker activity. (288) This Article, however, proposes to employ it to explain instances when transitional governments do not need to act with restraint. The widespread approach among parliamentary legal systems is that caretaker governments must only deal with regular affairs, which aligns with their role as a "babysitter" until the newly elected government takes office. (289)
Contrary to the argument in the Berenson Committee Report that this test is inapplicable, (290) it has far-reaching practical implications in other areas of law, including corporate, tax, and property, especially when defining powers. (291) In these varying fields, the criterion of "regular course of affairs" evolved in judicial decisions on a case-by-case basis, while applying an "I know it when I see it" approach. (292)
This test is also consistent with the concept of democracy as expressed in judicial rulings in the nondelegation field that the material decisions in the life of the nation must be made by the elected legislature rather than the executive body. (293) Furthermore, it is a criterion used in corporate and property law to deal with situations where there is concern that an agent is abusing his or her powers, contrary to the interests of the principal. (294) These are situations that do go beyond "the regular course of affairs." (295) The test thus addresses both the agency difficulty and the democratic-deficit characteristic of caretaker and lame-duck governments. As such, it fits to regulate caretaker and lame-duck administration's activity.
To understand which actions are not in the regular course of affairs, this Article proposes the use of criteria set forth by courts in the context of the nondelegation doctrine. (296) If the criteria help to define the powers of a regular government in the context of the nondelegation doctrine, afortiori they will help to set criteria for the operation of a transitional government. Of course, issues that a regular government may be authorized to handle under the nondelegation doctrine might nonetheless be outside the regular course of affairs for a transitional government. In other words, the criterion of the regular course of affairs must be more stringently applied to transitional governments.
It follows that any action cannot be deemed to be in the regular course of affairs for a transitional government if it fits any one of the following "risk" categories: it has long-term effects on entire public sectors or even society as a whole, it is the subject of fierce public controversy, it infringes constitutional rights, it is irreversible or hard to undo, or it is opposed by the legislature. Similar criteria for the operation of a caretaker government, though perhaps not as detailed and instructive, were applied in various countries, including in Canada, New Zealand, Australia, and the United Kingdom. (297)
Clearly, peace talks and major international agreements have all the characteristics of actions that are not in the regular course of affairs: (1) they have long-term effects on entire public sectors, or even society as a whole; (2) they are usually the subject of fierce public controversy, especially on the eve of an election; (3) they affect constitutional rights, especially if they entail the evacuation of citizens; and (4) they involve irreversible consequences. They should not be conducted in caretaker or lame-duck periods. In contrast, the regular course of affairs encompasses some public-sector appointments, including some made on the eve of elections, especially when the appointments are not controversial and when the government has only minor weight in making the appointment. In those cases, there is no reason to paralyze the country's regular affairs. Thus, had the Israeli Supreme Court used the criteria for the regular course of affairs suggested, it may have reached more justified judicial decisions. The problem with the court's jurisprudence is not that the topic should be treated as nonjusticiable, but rather that the court did not apply the proper criteria to regulate caretaker action.
B. Permitting Extraordinary Measures
This Article further proposes that a transitional government should be empowered to take extraordinary measures--that is, actions falling outside the regular course of business--when there is a "vital public need for action" or when the incoming legislature has preapproved such extraordinary measures.
1. A Vital Public Need for Action
A vital public need for action occurs during emergencies, and the transitional government should be empowered to respond as any regular government, so long as there is a causal relation between its actions and the state of emergency.
The government should also be empowered to act in cases that fall short of an emergency. If, at the discretion of the government, it is vital to take an extraordinary measure, it must confer with the opposition and, if possible, adopt measures on which there is consensus. For example, during New Zealand and Australia's severe financial crises in the mid-1980s, the caretaker governments deferred to the dictates of the incoming governments on how to manage the crises when they depreciated the local currency. (298) Contrary to New Zealand and Australia's experiences, however, this Article argues that the incumbent government must confer with the opposition, but need not accept its dictates. After all, the final accountability for the action rests with the incumbent government. There is no recognizable constitutional institution as the government-elect or president-elect upon whom accountability may be bestowed.
In such cases of vital public need for action, transitional governments must also try to limit the long-term effects of their actions. For instance, to prevent paralyzing the country, caretaker governments in Australia, Canada, New Zealand, and the United Kingdom are permitted to make temporary appointments for a fixed period of up to several months, temporarily extend appointments that are about to expire, and extend contracts that are about to expire for a limited period. (299)
2. Preapproval of the Legislature for Taking an Extraordinary Measure
This Article further proposes that extraordinary actions should be prohibited if they do not fall under the vital public interest justification unless preapproved by the legislature. In contrast to Claude Klein's proposal, made in the Israeli context, that a caretaker government will be empowered to act unless instructed otherwise by the Knesset, (300) the default rule in this proposed framework prevents transitional governments from undertaking extraordinary acts.
Assuming that the legislature will be asked to preapprove an extraordinary measure of a transitional government, should a distinction be made between pre- versus post-election actions taken by the caretaker or lame duck? Before and just prior to elections, legislative members themselves are usually running for office. Therefore, it may not be appropriate for them to approve extraordinary measures, since their current mandate is also about to expire. (301) Following elections, when a new legislature is established, approval by the incoming legislature of an action of a caretaker or lame-duck government has significance. Where, in a parliamentary system, the power of governments depends on confidence, approval of caretaker action by the incoming legislature serves an analogous purpose. It is also reasonable to assume that the incoming parliament's approval is also a green light from the incoming administration, which depends on parliamentary confidence and controls a parliamentary majority. In conclusion, parliament--especially an incoming one--has the authority to preapprove an extraordinary measure of a caretaker government. Similarly, in a presidential system, the nod from an incoming Congress lends democratic legitimacy to the actions of the lame-duck executive, who otherwise suffers from severe democratic deficit.
This proposed framework strikes a proper balance between the need for governmental continuity and the need to prevent caretaker or lame-duck governments from making fateful and irreversible decisions when their mandate is limited and their actions might be driven by extraneous considerations. This proposed framework may be codified in constitutional conventions in countries that are characterized by executive self-restraint. In other countries, this framework may be developed in case law enforced by the courts. Of course, restrictions on caretaker government may also be part of the constitutional text as has happened in Denmark. (302) But, the absence of an explicit constitutional text should not be a barrier for imposing such restrictions.
In addition, this Article suggests amending the legislation regulating this field in parliamentary systems. In light of the findings that prolonged caretaker periods occur in Israel precisely at times when elections are moved up and during the preelection period, (303) a change in election timetables must set the vote to occur within a fixed and brief period of two months. (304) This will significantly minimize the duration, as well as the occurrence, of caretaker governments and their inherent constitutional difficulties. It is high time to protect the most basic democratic values of representation, accountability, and majority rule, which are imperiled by caretaker governments.
Caretaker and lame-duck administrations pose unique challenges to democracy because they are characterized by both democratic deficit and agency difficulties. Parliamentary systems that belonged to the Commonwealth or were influenced by British law have dealt with this challenge quite successfully through constitutional conventions that are observed by the political branches. In contrast, the U.S. presidential system suffers from great abuse of presidential lame-duck power. Similar abuse is evident in Israeli caretaker administrations, despite Israel's parliamentary system. Israel has dealt with the challenge differently than the United States. In light of caretaker abuse, the Israeli Supreme Court intervened to regulate caretaker activity, an atypical approach to this matter. Studying the court's unique jurisprudence assists in developing the proper law that should govern transitional governments, as well as in assessing whether judicial review of constitutional transitions is feasible or desirable.
Using Israel as a case study within a comparative constitutional framework, three important lessons may be suggested. First, it is not the nature of the constitutional system per se, whether parliamentary or presidential, that determines the success of preventing abuses of a transitional government's power. Rather, the potential for abuse exists in both types of systems. Furthermore, the challenges posed by these transitional governments are similar in both types of systems. Second, transitional governments' power is not a topic that cannot inherently be regulated by courts. Rather, if constitutional conventions fail to do their job or do not develop, judicial review is a potent possibility. Last, it is not enough to determine that transitional governments must act with restraint, as the Israeli Supreme Court has determined, but it is important to give concrete meaning as to which actions are permitted by transitional governments and under what circumstances they are allowed.
(1.) DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR 1-37 (1997) (discussing the rise and fall of the Weimar Republic and calling it a "failed experiment in democracy"); Jeffrey Seitzer & Christopher Thornhill, An Introduction to Carl Schmitt's Constitutional Theory; Issues and Context, in CARL SCHMITT, CONSTITUTIONAL THEORY 22-23 (Jeffrey Seitzer ed. & trans., 2008) (discussing Nazi takeover of Prussian caretaker government). See generally David Dyzenhaus, Legal Theory in the Collapse of the Weimar: Contemporary Lessons?, 91 AM. POL. SCI. REV. 121 (1997) (discussing the collapse of the Weimar Republic). The term "caretaker government" became prevalent after World War II. J.C. JOHARI, THE CONSTITUTION OF INDIA: A POLITICO-LEGAL STUDY 139-40 (2007). The term spread after Winston Churchill formed a caretaker government to govern Britain in the interregnum after he resigned from the wartime national coalition of the Labour and Conservative political parties and until a new government was formed following elections. Id. This government was "quite exceptional" in Britain in the sense that Churchill composed a new interim government rather than continuing with the old government until a new government was formed after elections. See SIR IVOR JENNINGS, CABINET GOVERNMENT 86 n.1 (3d ed. 1959) ("[I]t is not British practice to appoint a 'Caretaker Government' for the duration of a general election."). Churchill acted in this way because his coalition broke apart. Id.
(2.) A caretaker government is a government functioning in a parliamentary system in the interregnum following elections and before the formation of a new government, or a government whose term has ended prematurely. See Rivka Weill, Constitutional Transitions: The Role of Lameducks and Caretakers, 2011 UTAH L. REV. 1087, 1089 (2011) (defining a caretaker government). In contrast, lame-duck president status is mostly relevant after elections, when it is clear that the incumbent is not continuing for another term. Id. It should be noted that there are no official or consensual definitions for these transitional governments. See John Copeland Nagle, The Lame Ducks of Marbury, 20 CONST. COMMENT. 317, 338-39 (2003) (discussing different possible definitions of lame-duck periods). In fact, some studies treat the transition period as stretching over many months prior to elections. See, e.g., DENIS S. RUTKUS & KEVIN M. SCOTT, CONG. RESEARCH SERV., RL34615, NOMINATION AND CONFIRMATION OF LOWER FEDERAL COURT JUDGES IN PRESIDENTIAL ELECTION YEARS 9 n.27, 10, 22-24 (2008), available at http://www.policyarchive.org/handle/10207/ bitstreams/19070.pdf (exploring the reasons behind the dramatic slowdown in presidential appointments to the judiciary that are confirmed by the Senate during the last few months of a presidential term).
(3.) See Jonathan Boston et al., Caretaker Government and the Evolution of Caretaker Conventions in New Zealand, 28 VICTORIA U. WELLINGTON L. REV. 629, 630 (1998) ("The international academic literature on caretaker government is exceptionally thin."); Michael Laver & Kenneth A. Shepsle, Cabinet Government in Theoretical Perspective, in CABINET MINISTERS AND PARLIAMENTARY GOVERNMENT 292 (Michael Laver & Kenneth A. Shepsle eds., 1994) ("It is important ... to be aware of the policy implications of having a caretaker cabinet in power. Surprisingly, this is a matter that has been more or less totally ignored by the literature on government formation....").
(4.) See GEOFFREY PALMER & MATTHEW PALMER, BRIDLED POWER: NEW ZEALAND'S CONSTITUTION AND GOVERNMENT 45-47 (4th ed. 2004) (discussing the "Main Principles" of the caretaker convention); Boston et al., supra note 3 (examining New Zealand's caretaker conventions); Laver & Shepsle, supra note 3, at 292-94 (discussing possible legislative control of the caretaker cabinet). See generally Glyn Davis et al., Rethinking Caretaker Conventions for Australian Governments, 60 AUST. J. PUB. ADMIN. 11 (2001) (discussing how caretaker conventions in Australia regulate the operation of government starting at the time an election is called); Claude Klein, The Powers of the Caretaker Government: Are They Really Unlimited?, 12 ISR. L. REV. 271 (1977) (examining the powers of caretaker governments); John Wilson, The Status of the Caretaker Convention in Canada, 18 CAN. PARLIAMENTARY REV. 12 (1995) (discussing the role of constitutional conventions in regulating the behavior of Canadian governments during the transition period).
(5.) In fact, comparative literature attributes the frequent occurrence of caretaker governments and the extended duration of their terms to the proportional-representation elections method used in some parliamentary systems. See, e.g., Boston et al., supra note 3, at 631 ("While periods of caretaker government occur in all parliamentary democracies, they tend to be both more frequent and more protracted in countries with proportional representation."). In New Zealand, since the elections system changed to mixed-member proportional representation in 1996, there have been cases in which a caretaker government served up to two months after elections. See id. at 639 (discussing an interregnum in New Zealand at the end of 1996). Belgium, with its proportional-representation election method to the federal Chamber of Representatives, set a world record for a caretaker government that served 541 days during peacetime. Belgium Swears in New Government Headed by Elio Di Rupo, BBC NEWS (Dec. 6, 2011), http://www.bbc.co.uk/news/world-europe-16042750. India, too, suffers from frequent and prolonged caretaker administrations as the result of the need to build coalition governments. See Meenu Roy, The Caretaker Government: Need for Fresh Guidelines, in REVIEWING THE CONSTITUTION 94-102 (B.L. Fadia ed., 2001) (examining the "status and powers of a caretaker government"); H.R. Saviprasad, Caretaker Government--Extent of Powers, 12 CENT. INDIA L.Q. 397, 398-99 (1999) (discussing the prevalence of caretaker governments since the "pressures and pulls of coalition politics" cause many governments to fall before their terms are completed).
(6.) The phrase "there is only one president at a time" has become "a mantra of the transition" from George W. Bush to Barack Obama. Steven Lee Myers & Helene Cooper, Obama Defers to Bush, for Now, on Gaza Crisis, N.Y. TIMES (Dec. 28, 2008), http://www.nytimes.com/2008/12/29/washington/29diplo.html.
(7.) Midnight actions are last-term actions taken by lame-duck presidents. See Jay Cochran III, The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters 2-3 (Mar. 8, 2001) (unpublished manuscript), available at http://mercatus.org/sites/default/files/The_Cinderella_Constraint(1).pdf (discussing the significant increase in regulation during the final three months of President Jimmy Carter's administration). Midnight actions are sometimes even described as manifesting the "Cinderella constraint" under which lame-duck presidents must conclude business before midnight of the president-elect's inauguration day. See id. at 4 ("[T]hey turn back into ordinary citizens at the stroke of midnight.").
(8.) In the recent decade, the phenomenon of lame-duck presidents received renewed attention from a small and influential segment of American law professors. See BRUCE ACKERMAN, THE CASE AGAINST LAMEDUCK IMPEACHMENT 9 (1999) [hereinafter ACKERMAN, LAMEDUCK IMPEACHMENT] (criticizing the House's impeachment of President Bill Clinton while the House was lame duck); Jack M. Beermann & William P. Marshall, The Constitutional Law of Presidential Transitions, 84 N.C.L. REV. 1253, 1255 (2006) (exploring the arguments concerning whether constitutional principles exist to guide presidential conduct during transition periods and, if so, their scope); Jack M. Beermann, Presidential Power in Transitions, 83 B.U. L. REV. 947, 953 (2003) (using the transition from the Clinton Administration to the Bush Administration to explore possible reforms to assist future incoming administrations in successfully tackling the wake of midnight regulation left by predecessors); Nina A. Mendelson, Agency Burrowing.. Entrenching Policies and Personnel Before a New President Arrives, 78 N.Y.U.L. REV. 557, 557 (2003) [hereinafter Mendelson, Agency Burrowing] (arguing that "agency burrowing" can in fact positively contribute to the responsibility of regulatory agencies and that we should thus adopt a "more functional means of ensuring agency legitimacy"); Nina A. Mendelson, Quick off the Mark? In Favor of Empowering the President-Elect. 103 NW. U. L. REV. COLLOQUY 464, 467 (2009) (investigating whether a president-elect should be given authority to exercise more power prior to inauguration); Nag]e, supra note 2, at 317-19 (discussing President John Adam's lame-duck actions leading to Madison v. Marbury); John Copeland Nagle, A Twentieth Amendment Parable, 72 N.Y.U.L. REV. 470, 477 (1997) (discussing the Twentieth Amendment, which was enacted to minimize lame-duck periods). See generally BRUCE ACKERMAN, THE FAILURE OF THE FOUNDING FATHERS: JEFFERSON, MARSHALL, AND THE RISE OF PRESIDENTIAL DEMOCRACY (2005) (discussing the deadlock that gripped the electoral college at the end of President Adams's term and providing a new understanding of the transformative roles that both the presidency and the Court played since the early days of the republic).
(9.) In fact, this was my initial thought on the subject. See Rivka Weill, Twilight Time: On the Authority of Caretaker Government, 13 LAW & GOV'T 167, 204 (2010).
(10.) See Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 643-64 (2000) (discussing a possible cycle of impasse between Congress and the executive that may result in the President relying on his authority to engage in unilateral action).
(11.) See Basic Law: The Knesset, 5718-1958, SH No. 244 p. 69, [section] 8 (Isr.), available at http://www.jewishvirtuallibrary.org/jsource/Politics/basictoc.html ("The term of office of the Knesset shall be four years from the day on which it is elected.").
(12.) See History of the Knesset--Overview, THE KNESSET, http://www.knesset.gov.il]history/eng/eng_hist_all.htm (last visited Oct. 27, 2012) (providing factual statistics for the past eighteen Knesset terms).
(13.) Lacking a personal electoral mandate, prime ministers have had to build their government on a coalition of many parties in order to master a Knesset majority. See The Work of the Knesset: Responsibilities, Roles and Authority, THE KNESSET, http://www.knesset.gov.il/birthday/eng/KnessetWork_eng.htm (last visited Oct. 27, 2012) (discussing the vast array of parliamentary groups that comprise the Knesset). Thus, coalition members representing a small segment of the public are able to topple the government and force new elections. See The Electoral System in Israel, THE KNESSET, http://www.knesset.gov.il/description/eng/eng_mimshal_beh.htm (last visited Oct. 27, 2012) (discussing the 2-percent-threshold system and the absolute majority needed to force an early election).
(14.) Basic Law: The Government, 5761-2001, SH No. 1780 p. 158, [section][section] 8-10, 11, 30 (Isr.); Basic Law: The Knesset, 5718-1958, SH No. 244 p. 69, [section] 35 (Isr.).
(15.) See infra Parts III, IV (discussing the three areas in which Israeli caretaker governments most readily act and examining the different reactions to each in Israeli jurisprudence).
(16.) See Ryan Patrick Phair, The Lame Duck Presidency: A Case for Restraint on 'Midnight' Actions During the Transition Period, ACSLAW.ORG, 8-13 (Dec. 2008), http://www.acslaw.org/files/Phair%20Issue%20Brief.pdf ("A significant source of controversy in the current transition period is the Bush administration's attempt to secure a comprehensive bilateral accord with the government of Iraq that would govern U.S. policy in Iraq going forward.").
(17.) See Press Release, Sen. Jesse Helms, Helms on Clinton ICC Signature: This Decision Will Not Stand (Dec. 31, 2000), available at http://www.amicc.org/ docs/Helms_Sign.pdf ("President Clinton's decision to sign the Rome treaty establishing an International Criminal Court in his final days in office is as outrageous as it is inexplicable."). Senate Foreign Relations Committee Chairman Jesse Hehns criticized Clinton's signature of the International Criminal Court's treaty as a "blatant attempt by a lame-duck President to tie the hands of his successor." Id.
(18.) See Edward T. Swaine, Unsigning, 55 SWAN. L. REV. 2061, 2085-86 (2003) (investigating the legal consequences attached to signing treaties). Though a signed treaty is not finalized until ratification, it does impose on the state signing the treaty interim international obligations to keep from acting in a way that would frustrate the draft treaty. See Vienna Convention on the Law of Treaties art. 18, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention] (discussing the "[o]bligation not to defeat the object and purpose of a treaty prior to its entry into force").
(19.) See Nancy Amoury Combs, Carter, Reagan, and Khomeini: Presidential Transitions and International Law, 52 HASTINGS L.J. 303, 320-22 (2001) (discussing President-elect Reagan's public demonization of Iran and stating that "it was no coincidence that the governments reached agreement and adhered to the Algiers Declarations on President Carter's last full day in office").
(20.) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
(21.) See Nagle, supra note 2, at 322-37 (discussing the actions taken by the Sixth Congress's lame-duck session beginning in December 1800); Jack N. Rakove, The Original Justifications for Judicial Independence, 95 GEO. L.J. 1061, 1072 (2007) (investigating the actions taken by the defeated lame-duck Federalist party after losing not only the presidency but also control of Congress in 1800).
(22.) See Richard Goldstone, Reconsidering the Goldstone Report on Israel and War Crimes, WASH. POST, April 1, 2011, http://www.washingtonpost.com/opinions/ reconsidering-the-goldstone-report-on-israel-and-war-crimes/2011/04/01/AFg111JC _print.html (discussing how Goldstone would have changed the Goldstone Report had he known then what he has subsequently discovered about the Gaza War); infra Part IV.B (discussing Operation Cast Lead, the military campaign in Gaza and focus of the Goldstone Report). For the Goldstone Report, see Rep. of the Human Rights Council, 12th Sess., Sept. 14-Oct. 2, 2009, U.N. Doc. A/12/48 [hereinafter Goldstone Report], available at http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs/ UNFFMGC_Report.PDF.
(23.) SHLOMO NAKDIMON, TAMMUZ IN FLAMES: THE BOMBING OF THE IRAQI REACTOR--THE STORY OF THE OPERATION 209 (1993).
(24.) See id. at 192-229.
(25.) HCJ 5167/00 Weiss v. Prime Minister of Isr. 55(2) PD 455  (Isr.).
(26.) See infra Part III.A. 1 (discussing the Weiss decision).
(27.) See Prime Minister's Media Adviser, Special Cabinet Meeting on the Release of Gild Shalit, ISR. MINISTRY OF FOREIGN AFF. (Mar. 17, 2009), http://www.mfa.gov.il/MFA/Government/Communiques/2009/Special_Cabinet_meeting _release_Gilad_Shalit_17-Mar-2009.htm (discussing the cabinet meeting held to consider the possibilities for securing the release of Gilad Shalit).
(28.) It should be noted that Ireland and Germany, too, are quite exceptional among parliamentary systems in having no conventions that restrict caretaker actions. MICHAEL LAVER & KENNETH A. SHEPSLE, MAKING AND BREAKING GOVERNMENTS: CABINETS AND LEGISLATURES IN PARLIAMENTARY DEMOCRACIES 47 (1996) [hereinafter LAVER & SHEPSLE, MAKING AND BREAKING GOVERNMENTS]; Boston et al., supra note 3, at 633-34; Laver & Shepsle, supra note 3. However, in Germany, this does not raise great concern as only a constructive vote of no confidence can lead to the fall of the government, and then an alternative government is formed by definition. See LAVER & SHEPSLE, MAKING AND BREAKING GOVERNMENTS, supra ("[A] constructive vote-of-noconfidence procedure means that an alternative cabinet is proposed as part of the original no-confidence motion."); Laver & Shepsle, supra note 3 (same). In Ireland. caretaker governments act with full vigor and enjoy full legitimacy. See LAVER & SHEPSLE, MAKING AND BREAKING GOVERNMENTS, supra ("[In Ireland,] the outgoing cabinet continues with more or less undiminished powers until an alternative is sworn in.").
(29.) See Beermann & Marshall, supra note 8. at 1270 ("There are no cases addressing presidential duties and obligations with respect to transition, and even if a legal dispute developed, it is likely that a court would find it nonjusticiable.").
(30.) Weiss 55(2) PD at 469.
(31.) See, e.g., AA 672/08 Israel's Broad. Auth. v. Tavor (Jan. 27, 2009), Nevo Legal Database (by subscription) (Isr.); HCJ 9843/08, Legal Forum for the Land of Isr. v. Judicial Election Comm. (Jan. 8, 2009), Nevo Legal Database (by subscription) (Isr.); HCJ 10357/08, Legal Forum for the Land of Isr. v. Isr. (Dec. 9, 2008), Nevo Legal Database (by subscription) (Isr.); HCJ 9202/08, Livnat v. Prime Minister of Isr. (Dec. 4, 2008), Nevo Legal Database (by subscription) (Isr.).
(32.) See supra note 4 and accompanying text.
(33.) Other authors confined their analysis to the Weiss ruling without considering the court's subsequent decisions. An essay by Professor Shimon Shetreet advocates limiting the powers of a caretaker government. Shimon Shetreet, The Limits of a Caretaker Government, in ZAMIR BOOK ON LAW, GOVERNMENT AND SOCIETY 737 (Yoav Dotan & Ariel Bendor eds., 2005). In contrast, an essay by Professor Asher Maoz asserts that the entire issue should be treated as nonjusticiable. Asher Maoz, The High Court of Justice and the Foreign Relations of the State, 4 MAAZANEI MISHPAT (NETANYA ACAD. C. L. REV.) 85 (2005); see also 2 AMNON RUBINSTEIN & BARAK MEDINA, THE CONSTITUTIONAL LAW OF THE STATE OF ISRAEL 831--34 (6th ed. 2005).
(34.) See infra Part III. The discussion of Israel's treatment of caretaker governments builds on Weill, supra note 9.
(35.) See infra Part IV.
(36.) See Bruce Bender & John R. Lott, Jr., Legislator Voting and Shirking: A Critical Review of the Literature, 87 PUB. CHOICE 67, 67-68 (1996) (discussing the mismatch between the interests of politicians and the interests of their constituents, resulting in legislator shirking).
(37.) I found that in the twelve cases in which elections were moved up in Israel, the term of a caretaker government was especially long and lasted about 160 days, twice as long as the average transition period of all governments in Israel. Moreover, about 118 of the 160 days (74 percent) preceded elections. Weill, supra note 9, at 177.
(38.) See Beermann, supra note 8, at 975-80 (discussing the political consequences of last-minute measures taken by President Clinton at the end of his time in office).
(39.) See THE FEDERALIST NO. 72, at 488-89 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (discussing the need for reeligibility of chief magistrates in office); GEORGE J. MAILATH & LARRY SAMUELSON, REPEATED GAMES AND REPUTATIONS: LONG RUN RELATIONSHIPS 1--2 (2006) ("Repeated interactions give rise to incentives that differ fundamentally from those of isolated interactions.").
(40.) See William G. Howell & Kenneth R. Mayer, The Last One Hundred Days, 35 PRESIDENTIAL STUD. Q. 533. 550 (2005) ("Outgoing presidents need no longer concern themselves about the electoral consequences of what they do during the transition, or about how a controversial decision will affect the rest of their agendas."); Nagle, supra note 8. at 479 ("[O]nce defeated, members were unaccountable to the electorate.").
(41.) For elaboration on these midnight actions, see Weill, supra note 2, at 1106-11. See also literature enumerated supra note 8.
(42.) See, e.g., Beermann, supra note 8, at 951-52 (describing late-term actions, which are designed to burden the other political party about to take over the White House); Howell & Mayer, supra note 40, at 533-43 ("And if the sitting president (or his party) lost the election, he has every reason to hurry through last-minute public policies, doing whatever possible to tie his successor's hands.").
(43.) See COLIN TURPIN & ADAM TOMKINS, BRITISH GOVERNMENT AND THE CONSTITUTION 565-71 (6th ed. 2007) (discussing parliament and the responsibility of government).
(44.) See, e.g., ROBERT A. DAHL, AFTER THE REVOLUTION? 1-79 (rev. ed. 1990) (discussing different criteria for establishing authority and the varieties of democratic authority): Ackerman, supra note 10, at 642-88 (discussing various bases of legitimacy and attributing representation as the main source of legitimacy of a government).
(45.) It is important to distinguish between a government that has lost parliament's confidence and a minority government. A minority government exists through the means of outside support of members of parliament preventing its fall since it otherwise lacks the necessary majority achieved by internal coalitions. It is important for such a government to reach ad hoc agreements on every issue to avoid losing power. See KAARE STROM, MINORITY GOVERNMENT AND MAJORITY RULE 3-22 (1990) (discussing the reasons for minority-government formation and the challenges it faces).
(46.) See Weill, supra note 2, at 1101-04 (discussing the democratic deficit of lame-duck presidents).
(47.) THE FEDERALIST NO. 70, at 471 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
(48.) See Mendelson, Agency Burrowing, supra note 8, at 602.
(49.) See supra note 3 and accompanying text.
(50.) See supra note 4 and accompanying text.
(51.) See THE CABINET MANUAL [paragraph][paragraph] 2.27-.34 (U.K.) [hereinafter UK CABINET MANUAL], available at www.cabinetoffice.gov.uk/sites/default/files/resources/cabinet-manual.pdf (providing "[a] guide to laws. conventions, and rules on the operation of government"); GUIDELINES ON THE CONDUCT OF MINISTERS, SECRETARIES OF STATE, EXEMPT STAFF AND PUBLIC' SERVANTS DURING AN ELECTION 1-5 (2008) (Can.) [hereinafter CANADA'S GUIDELINES], available at http://jameswjbowden.files.wordpress.com/2011/07/ guidelines-cartaker-convention1.pdf ("While constitutionally, a government retains full legal authority to govern during an election ... it is expected to exercise restraint in its actions. The rationale is that.... there is no elected chamber to which the government can be held accountable."); NEW ZEALAND CABINET MANUAL [paragraph][paragraph] 6.16--.35 (2008), available at http://cabinetmanual.cabinetoffice.govt.nz/6.16 (outlining the duties of the current government from the time an election is called until a new government is formed); ANNE TIERNAN & JENNIFER MENZIES. CARETAKER CONVENTIONS IN AUSTRALASIA 134 (2007), available at http://epress.anu.edu.au/caretaker_citation.html (detailing the current government's obligations toward the incoming government from the time an election is called until a new government is formed).
(52.) See, e.g., NEW ZEALAND CABINET MANUAL, supra note 51, [paragraph] 6.16 ("[T]he incumbent government is still the lawful executive authority, with all the powers and responsibilities that go with executive office."); Boston et al., supra note 3, at 631 ("[C]aretaker governments are generally deemed to have full executive powers.").
(53.) LORNE SOSSIN & ADAM DODEK, When Silence Isn't Golden: Constitutional Conventions, Constitutional Culture, and the Governor General, in PARLIAMENTARY DEMOCRACY IN CRISIS 91, 93 (Peter H. Russell & Lorne Sossin eds., 2009) (discussing the role of constitutional conventions with regard to the authority of the Governor-General).
(54.) Id. at 99.
(55.) See CANADA'S GUIDELINES, supra note 51, at 1-2 ("[C]onsultation with the Opposition may be appropriate...."); NEW ZEALAND CABINET MANUAL, supra note 51, [paragraph] 6.24 ("[T]he outgoing government should ... act on the advice of the incoming government on any matter of such constitutional, economic or other significance that it cannot be delayed until the new government formally takes office--even if the outgoing government disagrees with the course of action proposed."); TIERNAN & MENZIES, supra note 51, at 134 ("Any reference to post election action should be in terms of the 'incoming government.'"); UK CABINET MANUAL, supra note 51, [paragraph][paragraph] 2.27-.34.
(56.) For the sparse literature on the subject, see supra notes 3-4 and accompanying texts.
(57.) See supra notes 6, 8 and accompanying text.
(58.) See supra notes 23-27 and accompanying text.
(59.) The committee was appointed to deal first and foremost with the problem that, at the time, the Basic Law: The Government provided for a freeze in the composition of caretaker governments, such that no minister could have resigned or joined. The committee recommended abolishing this state of affairs. BERENSON, COMMITTEE REPORT ON THE SUBJECT OF TRANSITIONAL AND CARETAKER GOVERNMENTS 1-6 [hereinafter BERENSON REPORT] (unpublished) (on file with author). The Knesset amended the Basic Law in accordance with the committee's recommendation, and there is no such provision in the current Basic Law. Basic Law: The Government, 5761-2001, SH No. 1780 p. 158, [section] 30(b) (Isr.), available at http://www.knesset.gov.il/laws/special/eng/basic14_eng.htm ("When a new Knesset has been elected or the Government has resigned ... the outgoing Government shall continue to carry out its functions until the new Government is constituted.").
(60.) BERENSON REPORT, supra note 59, at 6.
(61.) See supra notes 4-8 and accompanying text.
(62.) The court decided that Israel's Basic Laws amount to its formal constitution in the famous decision: CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Collective Vill. 49(4) PD 221  (Isr.), translated in 1995 2 ISR. L. REPORTS 1, available at http://elyon1.court.gov.il/files_eng/93/210/068/z01/93068210.z01.pdf. See Rivka Weill, The Israeli Case for Judicial Review and Why WE Should Care, 30 BERKELEY J. INT'L L. 349 (2012), for a discussion of the case.
(63.) Basic Law: The Government, 5761-2001, SH No. 1780 p. 158, [section] 30(b).
(64.) HCJ 5167/00 Weiss v. Prime Minister of Isr. 55(2) PD 455  (Isr.). Following the Weiss decision, the Attorney General formulated rules for the conduct of caretaker governments, especially regarding appointments in the public sector. See ATTORNEY GENERAL GUIDELINES REGARDING ELECTION ISSUES, available at http://www.knesset.gov.il/elections18/heb/law/LegalAdviser.pdf.
(65.) Israel has a pure parliamentary system with the exception of the elections in 1996-2003, when direct elections for the office of prime minister were held under Basic Law: The Government. See RUBINSTEIN & MEDINA, supra note 33, at 822-23.
(66.) Emanuele Ottolenghi, Explaining Systemic Failure: The Direct Elections System and Israel's Special Elections of February 2001, 8 ISR. AFF. 134, 146 (2002).
(67.) Maoz, supra note 33, at 86.
(69.) Weiss 55(2) PD at 463.
(70.) Id. (Turkel, J., dissenting).
(71.) Id. (majority opinion).
(72.) Id. at 463 (majority opinion), 475 (Turkel, J., dissenting).
(73.) See id. at 463 (majority opinion) (referencing petitioner's argument that reasonableness limited the government's actions to ongoing operations). It should be noted that Israel's Supreme Court sits also as a High Court of Justice. Basic Law: The Judiciary, 5744-1984, SH No. 110 p. 78, [section] 15 (Isr.).
(74.) See Weiss 55(2) PD at 455, 473 (denying petition on the grounds that the government's actions did not deviate from the proper range of reasonableness). It should be noted that Israel's Chief Justice is called President.
(75.) See id. at 468 (majority opinion). 474 (Levin, Deputy President, concurring), 475 (Turkel, J., dissenting), 477 (Zamir, J., concurring) (agreeing that there is no formal limitation on the powers of an outgoing government).
(76.) See id. (agreeing that the application of the reasonableness inquiry changes when applied to outgoing governments). Deputy President Shlomo Levin did not express any views on the matter. Id. at 474 (Levin, Deputy President, concurring).
(77.) See id. at 473 (majority opinion) (finding that the actions of the outgoing government did not deviate from the range of reasonableness).
(78.) See id. at 474 (Levin, Deputy President, concurring), 477-80 (Zamir, J., concurring) (refraining from the reasonableness inquiry of other justices).
(79.) See id. at 475-77 (Turkel, J., dissenting) (arguing that the range of reasonableness continuously narrows as the Prime Minister's term approaches its end).
(80.) See id. at 465 (majority opinion) (explaining that the ongoing operations approach was used in other countries but no such formal limitation existed in Israeli law). The case relies on the old and repealed version of Basic Law: The Government, however similar provisions exist in the new Basic Law: The Government, 5761, SH No. 1780 p. 158, [section] 30(b) (Isr.) ('[T]he outgoing Government shall continue to carry out its functions until the new Government is constituted.").
(81.) See Weiss 55(2) PD at 466 (using the Berenson Committee Report as support for refusing to construct a formal limitation on an outgoing government's power).
(82.) See id. at 466-68 ("[T]he Knesset as an establishing authority may ... limit the powers of an outgoing government, if it sees fit....").
(83.) See id. at 468 ("[I]t has not been proven to us ... [that there is] the existence of a constitutional custom according to which the outgoing government has only ongoing powers (or 'maintenance' powers).").
(84.) See id. at 469 (explaining that a caretaker government must act with the restraint appropriate for an outgoing government).
(85.) See id. at 470 ("[T]he range of reasonableness of the prime minister who has resigned ... is narrower than the range of reasonableness of a prime minister and government who are operating normally.").
(86.) See id. at 469 (explaining that the duty of restraint does not apply when there is a "vital public need to act").
(87.) See id. (explaining that when a vital need exists, the government must act in appropriate measure).
(88.) See id. ("The correct question is, whether in the overall balance ... restraint or action is required.").
(89.) See id. at 470 (giving various examples of inappropriate post-election actions for an outgoing government, such as appointing senior officials). It is noteworthy that the court sought to focus on one form of caretaker government--the one that is created following the resignation of a prime minister. Id. at 468. In doing so, it did not explain why the reason for bringing about a caretaker government might affect the law applicable to it.
(90.) See id. (noting that it is appropriate for an outgoing prime minister and his cabinet to manage foreign policy or defense from war when there is a "vital public need").
(91.) See Basic Law: The Government, 5761-2001, SH No. 1780 p. 158, [section][section] 1, 32, 40 (Isr.) (granting the executive branch residual authority and the power to declare war). Similar provisions existed in the old version of the law.
(92.) See Weiss 55(2) PD at 472 (stating that the court will not replace the government's foreign and defense discretion with its own).
(93.) See id. The court held that nonintervention was consistent with precedent. The court dismissed previous petitions concerning negotiations for the Oslo agreements, the Golan Heights, and even the release of terrorists. Id.
(94.) See id. at 473 (referring to the Israeli Attorney General's declaration that any agreement between outgoing Israeli government representatives and Palestinian representatives would be conditional until approved by the Knesset).
(95.) See infra Part IV.A. It is interesting to note that, in the elections for the office of prime minister on February 6, 2001, Ariel Sharon received 62.3 percent of the votes, while Ehud Barak received 37.7 percent. According to commentators, the elections were more indicative of a defeat for Barak and his policy than a victory for Sharon. See Ottolenghi, supra note 66, at 150.
(96.) See HCJ 9202/08 Livnat v. Prime Minister of Isr., at 3 (Dec. 4, 2008), Nevo Legal Database (by subscription) (Isr.).
(97.) See Aluf Benn & Haaretz Correspondent, Does Failure To Form a Gov't Make Tzipi Livni a Loser?, HAARETZ, Oct. 26, 2008, http://www.haaretz.com/printedition/news/analysis-does-failure-to- form-a-gov-t-make-tzipi-livni-a-loser-1.256064 (reporting that Livni was unable to form a government without calling elections).
(98.) See Livnat, HCJ 9202/08, at 3.
(99.) See id.
(100.) See id. at 6.
(101.) See infra Part IV.A (discussing the role of caretaker governments in international relations); cf. HCJ 5167/00 Weiss v. Prime Minister of Isr., 55(2) PD 455, 473  (Isr.) (stating that its decision relies on the Attorney General's specific commitment that were agreements to be made by the outgoing government's representatives, such agreements would include a specific stipulation that they are conditional until approved by the Knesset).
(102.) See Livnat, HCJ 9202/08, [paragraph] 5.
(103.) See HCJ 10357/08 Legal Forum for the Land of Isr. v. Gov't of Isr., at 31 (Dec. 9, 2008), Nevo Legal Database (by subscription) (Isr.).
(104.) See James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 155-56 (1893) ("[I]f [legislators] are wrong, they say, the courts will correct it.").
(105.) See supra notes 22-27 and accompanying text (citing examples of Israeli caretaker governments engaging in military operations and peace negotiations).
(106.) See supra Part III.A. 1-2.
(107.) See Combs, supra note 19, at 334 ("[I]nternational law ... requires states to honor their commitments until the other party or parties to the agreement consents to a change."); see also discussion infra Part IV.A (comparing the international law implications of signing versus ratifying agreements by caretaker governments).
(108.) See, e.g., Boston et al., supra note 3, at 637-41 (discussing New Zealand's caretaker government restrictions).
(109.) See JOHARI, supra note 1, at 139-40 (referencing Churchill's participation in the Potsdam Conference); see also T.D. Burridge, A Postscript to Potsdam: The Churchill-Laski Electoral Clash, June 1945, 12 J. CONTEMP. HIST. 725, 733-37 (1977) (detailing Churchill's efforts to arrange and participate in the Potsdam Conference).
(110.) See JOHARI, supra note 1, at 140 (referencing Churchill's inclusion of Clement Atlee and Ernest Bevin in the Potsdam Conference).
(111.) See id.
(112.) See, e.g., Beermann & Marshall, supra note 8, at 1281 (discussing how lame-duck presidents usually avoid controversial international issues or seek their successor's input); Combs, supra note 19, at 334 ("[L]ame-duck administrations have typically attempted to defer controversial foreign affairs decisions until the new administration took power, or at the least, have attempted to consult with the President-elect to attain agreement as to the course to pursue.").
(113.) See Nagle, supra note 2, at 322-23 (noting the Senate's ratification of the Treaty of Mortefontaine in early February 1801 during the post-election lame-duck session).
(114.) See id., supra note 2, at 322-23. (quoting JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 252 n.[dagger] (1996)) (discussing the negotiations and agreement at Mortefontaine).
(115.) See Combs, supra note 19, at 306-07 & n.19 (discussing the conflicting views of Carter and Reagan with regard to the Algiers Declarations).
(116.) See Swaine, supra note 18, at 2061-62 (discussing responses to the Bush Administration's decision to "unsign" the Rome Statute).
(117.) See Phair, supra note 16, at 10 (considering the Bush Administration's constitutional duty during its lame-duck phase).
(118.) See U.S. CONST. art. II, [section] 2(2) ("[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.").
(119.) See Weill, supra note 2, at 1122-25, for a discussion with regard to lame-duck legislatures.
(120.) See generally Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799 (1995). The authors argue that "We the American People" expressed dualist consent to the route of congressional--executive agreements and thus this venue represents a nonofficial amendment to the U.S. Constitution. Id.
(121.) Id. at 802-03 (identifying the informal process that yielded the congressional--executive agreement).
(122.) HCJ 9577/02 Nat'l Religious Party v. Speaker of the Knesset (HAMAFDAL) 57(1) PD 710  (Isr.).
(123.) See Chief Rabbinate of Israel Law, 5740-1980, SH No. 965 p. 90, [section] 2 (Isr.) (listing the functions of the Council of the Chief Rabbinate of Israel).
(124.) See HAMAFDAL. HCJ 9577/02 (Dorner, J.) (preventing the appointment of chief rabbis during caretaker administration).
(125.) See id. at 715-16.
(126.) See id. at 716.
(127.) See Chief Rabbinate of Israel Law, 5740-1980, SH No. 965 p. 90, [section] 16 (stating that chief rabbis serve for ten years and their successors are to begin their terms at the expiration of their predecessors).
(128.) See id. [section][section] 7-8 (defining the nature and number of representatives in the appointing committee).
(129.) In fact, President Dorit Beinish publicly spoke of the great shortage in judicial manpower and the urgent need to appoint new judges. See Ruthie Avraham, To Postpone Appointing Judges Until After Elections, NEWS1 (Oct. 28, 2008), http://www.news1.co.il/Archive/001-D-177093-00.html (discussing the president's belief that although it will lead to further shortages, no judges can be appointed during a caretaker government).
(130.) See 9843/08 HCJ, Legal Forum for the Land of Isr. v. Judicial Election Comm., [paragraph] 4 (Jan. 8, 2009), Nevo Legal Database (by subscription) (Isr.).
(131.) See Basic Law: The Judiciary, 5744-1984, SH No. 110 p. 78, [section] 4 (Isr.) (listing the composition of the Judicial Appointments Committee).
(132.) See id.
(133.) See Courts Law, 5769-2008, SH No. 2176 p. 813 (Isr.) (Revision No. 55).
(134.) See Legal Forum, HCJ 9843/08, [paragraph][ 1.
(135.) He favored judicial restraint and interpreted her position as favoring judicial activism. On the great controversy between President Beinish and Minister of Justice Friedman, see Yuval Yoaz, Friedman's Purpose: To Limit the High Court of Justice's Spheres of Intervention, HAARETZ (Aug. 23, 2007), http://www.haaretz.co.il/ misc/1.1559086.
(136.) See Legal Forum, HCJ 9843/08, [paragraph] 15.
(137.) See id. [paragraph] 11.
(138.) See id. [paragraph][paragraph] 12-13.
(139.) See AA 672/08 Israel's Broad. Auth. v. Tavor (Jan. 27, 2009), Nevo Legal Database (by subscription) (Isr.).
(140.) See id. at 6.
(141.) See id.
(142.) But see HCJ 10134/02 MK Aushayia v. Prime Minister 57(2) PD 49, 53  (Isr.) (reaching the opposite result and allowing the appointment, during an election period, of the directors of the First Channel of the Israeli Broadcasting Authority and of the television news division).
(143.) See HCJ 8815/05 Adv. Landstein v. Adv. Spiegler (Dec. 26, 2005), Nevo Legal Database (by subscription) (Isr.).
(144.) See also HCJ 4065/09 Adv. Cohen v. Minister of Interior (July 20, 2010), Nero Legal Database (by subscription) (Isr.); cf. HCJ 5240/96 Juamis v. Minister of Interior 51(1) PD 289, 300  (Isr.). Significant restrictions on the acts of a caretaker government in the public arena were also expressed in a petition concerning the consolidation of local authorities in Judea and Samaria, even though fundamental decisions had been made before the government became a caretaker. See HCJ 10466/08 Alchaini v. IDF Commander in Judea and Samaria (Jan. 1, 2009), Nevo Legal Database (by subscription) (Isr.).
(145.) See supra Part III.B.1 (discussing the judicial prohibition of caretaker governments from appointing judges).
(146.) See supra Part III.B.1 (discussing the judicial prohibition of caretaker governments from appointing chief rabbis).
(147.) See supra Part III.B.3 (explaining the prohibition of religious-counsel appointments as a matter of governmental control and public opinion of that control).
(148.) See supra Part III.B.2 (demonstrating the coverage of appointment prohibitions by looking at officials who are not appointed by government officials, but cannot be appointed during the term of a caretaker government).
(149.) See supra Part III.B.1-2 (offering examples of instances in
which the government had little or no influence in the appointment process, yet caretaker government appointments were still prohibited).
(150.) See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-80 (1803) (declaring that laws in conflict with the Constitution are void and the judiciary has the authority to judge which laws are in conflict with the Constitution).
(151.) See Nagle, supra note 2, at 317-22 (examining the actions John Adams took as a lame-duck president).
(152.) See id. at 318-21 (detailing the actions taken by Adams during his lame-duck period).
(153.) Id. at 324-25.
(154.) Id. at 325-26.
(155.) Combs, supra note 19, at 303-05.
(156.) Nagle, supra note 2, at 326.
(158.) See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 143 (1803) (describing the failure of the Jefferson Administration to deliver the commission).
(159.) See id. at 138 ("The supreme court of the U. States has not power to issue a mandamus to a secretary of state of the U. States, it being an exercise of original jurisdiction not warranted by the constitution."); see also Nagle, supra note 2, at 326-28 (describing the circumstances of the Marbury case).
(160.) Mendelson, Agency Burrowing, supra note 8, at 606.
(161.) See id. at 607 (describing how the administration of George H.W. Bush "eliminate[d] a 141-person office of the Army Corps of Engineers in Buffalo three days after the election").
(162.) See id. at 615 (noting that a new administration will have to guard against subversion of its policies by appointees of the previous administration). Mendelson argues that there are also benefits to be considered: such last-minute hiring decisions by the lame-duck administration may contribute to diversity within the bureaucracy, enhance deliberation and dialogue within the bureaucracy and also between it and the public on the one hand, and the Presidency on the other, and even enable self-monitoring within the bureaucracy because of the diversity of opinions and personnel. Id. at 642, 648.
(163.) See U.S. CONST. art. II, [section] 2, cl. 2 (requiring advice and consent of the Senate for the appointment of certain officials).
(164.) Keith E. Whittington, Presidents, Senates, and Failed Supreme Court Nominations, 2006 SUP. CT. REV. 401, 416 (2007).
(165.) Id. at 417 (describing Republican Benjamin Harrison's appointment of a Democrat to the Supreme Court during the lame-duck session of 1892); see also John Massaro, "Lame-Duck" Presidents, Great Justices?, 8 PRESIDENTIAL STUD. Q. 296, 299 (1978) (arguing that lame-duck presidents tend to deemphasize ideology and other political factors in choosing nominees to the Supreme Court).
(166.) See supra Part II.D.
(167.) See supra Part II.D.
(168.) See, e.g., Boston et al., supra note 3, at 638 (discussing lame-duck policies in New Zealand); Roy, supra note 5, at 97-98, 101 (discussing lame-duck policies in India).
(169.) See, e.g., Boston et al., supra note 3, at 637 (explaining that in New Zealand's parliamentary system, emergency interim measures should not be made without consultation with the opposition).
(170.) For example, New Zealand's Cabinet Manual requires the consent of the House. See NEW ZEALAND CABINET MANUAL, supra note 51, [section] 6.20(d). But if the identity of the next government is clear, then its consent must be sought. Id. [section] 6.24.
(171.) HCJ 2453/06 Israel's Med. Ass'n v. Attorney Gen. (IMA) (Mar. 21, 2006), Nevo Legal Database (by subscription) (Isr.).
(172.) Id. [paragraph][paragraph] 3-4 (Grunis, J.).
(173.) Id. [paragraph][paragraph] 3-4 (Grunis, J.), [paragraph] 3 (Naor, J.).
(174.) This argument applies even if the election's results show that the ruling party has not lost its power. This is so because in a parliamentary system with proportional representation, there is a need to build a coalition, and the resulting government may have a different agenda than the preceding one. See supra Part II.A.
(175.) HCJ 5167/00 Weiss v. Prime Minister of Isr. 55(2) PD 455, 470 .
(176.) The NLRD Committee is appointed by the Ministers of Health and Treasury. It advises the government and the Health Council on which drugs should be included in the government's healthcare package. IMA, HCJ 2453/06, [paragraph] 2 (Grunis, J.).
(177.) Id. [paragraph] 4 (Naor, J.).
(178.) Id. [paragraph][paragraph] 3-4 (Grunis, J.). See also Justice Levi's dissenting opinion that because of the urgency of the matter, the NLRD should convene even before elections.
(179.) HCJ 6413/08 Reg'l Municipality of Modi'in v. Minister of Interior (March 10, 2010), Nevo Legal Database (by subscription) (Isr.).
(180.) Id. at 3.
(182.) See supra Part III.B, III.C. 1.
(183.) See supra Part III.B.
(184.) See supra Part III.C.1.
(185.) See, e.g., Michael M. Bechtel & Jens Hainmueller, How Lasting Is Voter Gratitude? An Analysis of the Short- and Long-Term Electoral Returns to Beneficial Policy, 55 AM. J. POL. SCI. 851, 864-65 (2011) (considering the duration of the beneficial impact of public goods on voter decision making).
(186.) The Constitution of the United States grants unilateral pardon power to the President. U.S. CONST. art. II, [section] 2, cl. 1. On the use of the pardon power in controversial ways during lame-duck presidencies, consider Howell & Mayer, supra note 40, at 533-35. See also Beermann, supra note 8, at 977-80 (reviewing controversial pardons granted by President Clinton in the waning days of his term).
(187.) Howell & Mayer, supra note 40, at 546-47 (discussing President Clinton's establishment of numerous national monuments). See generally Margaret Tseng, Lame Duck Presidents and the Use of Unilateral Powers: An Examination of Monument Proclamations (presented at the Annual Meeting of the American Political Science Association, Aug. 27-31, 2003), available at http://citation.allacademic.com/meta/p_ mla_apa_research_citation/0/6/4/7/6/pages64764/p64764-1.php.
(188.) Beermann, supra note 8, at 975-76 (considering the potential electoral effects of President Clinton's efforts to convert land into nature reserves prior to elections).
(189.) For a discussion of legacy concerns as influential on presidential lame-duck policies, see, e.g., David A. Crockett, "An Excess of Refinement": Lame Duck Presidents in Constitutional and Historical Context, 38 PRESIDENTIAL STUD. Q. 707, 711-15 (2008); Tseng, supra note 187, at 6 ("The lack of political consequence in the final year gives additional incentive for presidents to extend their policy impact and political legacy.").
(190.) Jeffery A. Jenkins & Timothy P. Nokken, Contemporary Lame-Duck Sessions of Congress: An Overview and Assessment with Special Emphasis on the 110th Congress 6 (unpublished working paper), available at http://faculty.virginia.edu/ jajenkins/contemp_LD.pdf (analyzing the timing considerations of presidents in their use of their unilateral powers).
(191.) See Parts I, II.D.
(192.) See, e.g., UK CABINET MANUAL, supra note 51, [paragraph][paragraph] 2.27-.34 (discussing restrictions on government activity following, for instance, the loss of a vote of confidence). A caretaker government is "expected not to take any important policy decision that goes to influence the popular vote in its favour or adversely affects the prospects of the opposition leaders in the battle of the ballot box." JOHARI, supra note 1, at 139. But see Roy, supra note 5, at 100 (describing Charan Singh's attempts at "vote garnering exercises").
(193.) Ackerman, supra note 10, at 647-56 (comparing the power of prime ministers in parliamentary systems with the power of U.S. presidents).
(194.) Id. at 657-64 (discussing the "cult of personality" prevalent in the U.S. presidential system when compared to a parliamentary system of the British type).
(195.) See supra Part III.B.
(196.) See supra Parts I, II.D.
(197.) See HCJ 9577/02 Nat'l Religious Party v. Speaker of the Knesset (HAMAFDAL) 57(1) PD 710, 716  (Isr.) (justifying the court's decision to reject public-sector appointments while allowing peace negotiations during caretaker period).
(198.) See, e.g., Curtis A. Bradley, Unratified Treaties, Domestic Politics, and the U.S. Constitution, 48 HARV. INT'L L.J. 307, 313 (2007) (noting that under modern practice, signature alone is insufficient to manifest consent to be bound by a treaty).
(199.) Id. at 313-14 (emphasizing that monarchs "had the authority to unilaterally bind their nations to treaties").
(200.) See, e.g., John Eugene Harley, The Obligation To Ratify Treaties, 13 AM. J. INT'L L. 389, 392-93 (1919) (considering the legislature's obligation to ratify a treaty, and the possibility that the legislature will refuse to do so, once the executive has signed it).
(201.) See id.; see also Bradley, supra note 198, at 308 (discussing the tension in the United States between unilateral executive treaty powers and the Senate's constitutional veto power).
(202.) See, e.g., Bradley, supra note 198, at 308 (discussing how unilateral executive action is in conflict with Article II of the Constitution, which requires "the advice and consent of two-thirds of the Senate").
(203.) See, e.g., CrimA 131/67 Kamiar v. State of Isr., 22(2) PD 85, 120-23  (Isr.).
(204.) See, e.g., Swaine, supra note 18, at 2064 (discussing a phenomenon common in the United States and elsewhere whereby the executive signs a treaty or other international agreement that is never subsequently ratified by the legislature).
(205.) Id. at 2088; see also Joanna Harrington, Redressing the Democratic Deficit in Treaty Law Making: (Re-)Establishing a Role for Parliament, 50 MCGILL L.J. 465, 472 (2005) (stating that with bilateral treaties, the tasks of signing and ratification are done in a single procedure, whereas with multilateral treaties, there is a clearer distinction between the two processes).
(206.) Vienna Convention, supra note 18, pmbl. (noting that the principle of good faith is universally recognized).
(207.) Id. art. 18.
(208.) Id. art. 18, 19.
(209.) Id. art. 18(a).
(210.) Swaine, supra note 18, at 2061.
(211.) Id. at 2085-86 (suggesting that President Clinton's "hasty signature" during his lame-duck period indicated "shallow engagement").
(212.) Under the Vienna Convention, a state may only enter a reservation upon signing the treaty. Vienna Convention, supra note 18, art. 19. Such reservations are possible if they are not explicitly forbidden in the treaty itself, and if the reservation does not preempt and void the intent and purpose of the treaty. Id. The Convention further states that with treaties dealing with a small number of signatories in which it is evident that the purpose and design of the treaty is meant for it to apply fully to all the signatories, the concession of the additional signatories may be required in order for a state to enter a reservation. Id. art. 20.2.
(213.) See LISA L. MARTIN, DEMOCRATIC COMMITMENTS: LEGISLATURES AND INTERNATIONAL COOPERATION 53-80 (2000) (providing an empirical analysis of U.S. treaties and executive agreements, finding that the legislature influences international cooperation in numerous ways).
(214.) For a discussion about the complex dynamics between the legislative and executive branches in the formation of international treaties, see id. at 3-80 (analyzing legislative influence).
(215.) See, e.g., Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 CAL. L. REV. 1823, 1863-64 (2002) (discussing the reputational harm that can come even to large countries when their legal foreign policy actions have adverse implications for other states).
(216.) See, e.g., Combs, supra note 19, at 334-35 (discussing the limitations that lame-duck status should have upon a president's power to conduct foreign affairs); Nagle, supra note 2, at 340 (proposing that lame-duck actors should be denied the power to take irrevocable actions); Phair, supra note 16, at 2-5 (outlining the constitutional constraints that ought to apply with regard to a lame-duck president).
(217.) See Beermann & Marshall, supra note 8, at 1281-82 (examining the impact that reliability plays in the ability of the United States to conduct foreign policy).
(218.) See Combs. supra note 19, at 329-40 (discussing the fact that subsequent administrations must abide by obligations made by prior administrations or the country will be in breach of international law).
(219.) See id. ("[I]ncoming Presidents. at least in theory, do not have the range of responses [available in domestic policy] ... to limit or eliminate their predecessor's foreign affairs' commitments.").
(220.) See ITAMAR RABINOVICH, WAGING PEACE: ISRAEL AND THE ARABS 1948-2003, at 152 (2004) (providing that the Israelis and the Palestinians both knew that, once a concession was made or an idea was placed on the table, it could not be undone, even if they were "formally" withdrawn from the table).
(221.) Press Announcement: Elyakim Rubinstein Does Not Recognize Right of Government To Conduct Critical Negotiations with Palestinians, NEWS1 (Jan. 1, 2001), www.news1.co.il/Archive/0019-D-60-00.html?tag=12-49-54.
(223.) Natasha Mozgobyea & Barak Rabid, Obama Strongly Expressed His Impatience to Netanyahu and Abbas, HAARETZ (Sep. 23, 2009, 1:52 AM), http://www.haaretz.com/print-edition/news/source-obama-strongly-expressed-his-impatience-to-netanyahu-and-abbas-1.7435.
(225.) CA 131/67 Kamiar v. State of Isr. 22(2) PD 85, 97  (Isr.); see RUBINSTEIN & MEDINA, supra note 33, at 914-24.
(226.) See Kamiar 22(2) PD at 104.
(227.) Basic Law: The President of the State, 5724, SH No. 428 p. 118, [section] 11(5) (Isr.).
(228.) See Kamiar 22(2) PD at 96, 103-05.
(229.) See Gilad Noam, Treaty Making in Israel: The Applicable Law, in THE AUTHORITY TO ENTER INTO TREATIES IN THE STATE OF ISRAEL: A CRITICAL ANALYSIS AND REFORM SUGGESTION 31, 31-47 (Moshe Hirsh ed., 2009), available at law.huji.ac.il/upload/Treaties.doc.
(230.) On the importance of informing the other parties, see, for example, Kamiar 22(2) PD at 126-29; Bradley, supra note 198, at 334-35 (discussing the impact of the United States' unsigning of the International Criminal Court treaty); Noam, supra note 229, at 38.
(231.) On the legitimacy difference between an incoming and an outgoing legislature, see infra Part V.B.2. See also supra note 119 and accompanying text.
(232.) See supra text accompanying notes 225-27 (discussing the relationship between the Knesset and the government regarding international treaties).
(233.) See HCJ 5167/00 Weiss v. Prime Minister of Isr. 55(2) PD 455, 468  (Isr.) (stating that evidence was insufficient to establish the existence of a constitutional custom). For an opinion that such custom does exist, see generally Shimon Shetreet, The Role of The Knesset in Treaty Making, 36 HAPRAKLIT 349 (1986).
(234.) See The Law and Administration (Relinquishment of the Applicability of Law, Jurisdiction and Administration) Act, 5759-1999, SH No. 1703 p. 86, [section] 2 (Isr.), which states: "Any decision by the government according to which the Law, Jurisdiction and Administration of the State of Israel shall no longer apply to a territory requires the approval of the Knesset attained by a majority of its members." Thus, such a decision must be backed by a sixty-one-vote majority. This law only applies to the areas to which Israel extends its jurisdiction and legal system, and therefore does not apply to the territories of Judea and Samaria that were never formally annexed to Israel. See HCJ 1661/05 Reg'l Municipality of Gaza Beach v. Knesset 59(2) PD 481  (Isr.). Recently, the Knesset enacted The Law and Administration (Relinquishment of the Applicability of Law, Jurisdiction and Administration) (Amendment) Act, 5771-2010, SH No. 2263 p. 58 (Isr.), in which it requires that a referendum be held before the elected bodies decide to relinquish territory that is annexed to Israel. If at least eighty Knesset members support the relinquishment of territory, then the requirement to hold a referendum may be ignored. In December 2010, Dr. Mohammed S. Wattad filed a petition with the Israeli Supreme Court challenging the constitutionality of the referendum process on the grounds that, inter alia, the process undermines the constitutional authority of the elected bodies, as provided for in the Basic Laws. As such, the referendum process should have been introduced in a Basic Law rather than in a regular statute. The content of the petition (No. 9149/10) is available at http://humanrights.org.il/ main.asp?search=[TEXT NOT REPRODUCIBLE IN ASCII]. For a different opinion, see Weill, supra note 62, at 382-84 (stating that "[t]he claimant's arguments are contrary to the concept of popular sovereignty, which would demand that the People be allowed to express their opinion on fundamental constitutional issues"). It should also be noted that, the Basic Law: Jerusalem, Capital of Israel requires a majority of sixty-one votes in the Knesset to approve the transfer of any sovereign power in Jerusalem. Basic Law: Jerusalem, Capital of Israel, 5740-1980, SH No. 980 p. 186, [section][section] 6-7 (Isr.). It will also require amending the Basic Law. Id. [section] 7.
(235.) See supra Part III.A.2 (discussing the Livnat decision).
(236.) HCJ 3267/97 Rubinstein v. Minister of Def. 52(5) PD 481, 508  (Isr.).
(237.) Id. at 511.
(238.) The Israeli Supreme Court developed the nondelegation doctrine, under which certain decisions must be made by the Israeli legislature rather than by the executive branch. The court utilized this doctrine to strike down certain regulations and government decisions, explaining that they are too important to be made by the executive branch and must be decided instead by the Knesset. See, e.g., id. at 490-531 (applying the doctrine to actions concerning deferrals and exemptions from military service). So far, the court did not use the nondelegation doctrine to strike down a statute as granting too broad a discretion to the executive branch, though this may happen in the future. See Rivka Weill, Did the Lawmaker Use a Canon To Shoot a Flea? On Proportionality in Law, LAW & BUS. J. (forthcoming).
(239.) People with a capital P is used in instances in which the People are involved in a dualist constitutional moment. I follow Ackerman's terminology in this regard. See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 3-33 (1991) (utilizing the term People with a capital P to describe those involved in a constitutional moment). Regarding the need to involve the People in territorial and sovereignty changes, see A.V. DICEY, ENGLAND'S CASE AGAINST HOME RULE 71-100 (1886) (discussing the need to obtain the People's consent as a precondition for Home Rule for Ireland). For a similar argument, see also A.V. DICEY, A LEAP IN THE DARK OR OUR NEW CONSTITUTION 113-16 (1893); JOHN LOCKE, TWO TREATISES OF GOVERNMENT 362 (Peter Laslett ed., 1988) ("The People alone can appoint the Form of the Commonwealth....").
(240.) See REFERENDUMS AROUND THE WORLD: THE GROWING USE OF DIRECT DEMOCRACY 4 (David Butler & Austin Ranney eds., 1994) (noting that referenda have not been utilized in Israel); see also supra note 234 (discussing recent legislation requiring that a referendum be held before elected bodies make binding decisions to relinquish territory annexed to Israel).
(241.) Israel officially applied Israeli law, jurisdiction, and administration to the Golan Heights. Golan Heights Law, 5742-1981, SH No. 1034 p. 6, [section] 1 (Isr.). East Jerusalem is officially part of Israeli territory, and Israeli law, jurisdiction, and administration applies with regard to it. In fact, this is part of Israel's constitutional law. See Basic Law: Jerusalem, Capital of Israel, 5740-1980, SH No. 980 p. 186, [section] 5 (Isr.) ("The jurisdiction of Jerusalem includes, as pertaining to this basic law, among others, all of the area that is described in the appendix of the proclamation expanding the borders of municipal Jerusalem beginning the 20th of Sivan 5727"). Israel enacted no similar laws with regard to Judea and Samaria (the West Bank).
(242.) See HCJ 1661/05 Reg'l Municipality of Gaza Beach v. Knesset 59(2) PD 481, 514-16  (Isr.).
(243.) See The Law and Administration (Relinquishment of the Applicability of Law, Jurisdiction and Administration) Act, 5759-1999, SH No. 1703 p. 86, [section] 2 (Isr.) (discussing when a referendum is required).
(244.) See, e.g., HCJ 1661/05 Reg'l Municipality of Gaza Beach v. Knesset 59(2) PD 481  (Isr.). The Court in Gaza Beach decided that the coerced evacuation of Israeli citizens from Gaza was an infringement of their constitutional rights to property and dignity. Such infringement was however justified if compensation provisions were adequately provided for. The court found that the compensation granted was unconstitutional. It thus intervened and enlarged the compensation granted to those required to evacuate. Id.
(245.) See, e.g., supra Part III.A (discussing the Weiss decision).
(246.) See WALTER BAGEHOT, THE ENGLISH CONSTITUTION 58-59 (2d ed. 1963) (discussing the great advantage of the parliamentary system over a presidential one as manifested in parliament's authority to oust the government if the government lost parliamentary support).
(247.) See Lori Fisler Damrosch, Impeachment as a Technique of Parliamentary Control over Foreign Affairs in a Presidential System?, 70 U. COLO. L. REV. 1525 (1999) (offering that impeachment of the President may be used as the equivalent mechanism to a no-confidence vote in a parliamentary system when the President acts against congressional will in foreign affairs matters).
(248.) See HCJ 3123/99 Hillman v. Minister of Int'l Sec. (Nov. 5, 1999), Nevo Legal Database (by subscription) (Isr.).
(249.) See Maoz, supra note 33, at 93.
(250.) See Hillman, HCJ 3121/99. Maoz criticizes the court for reaching opposite results in the case of the Orient House (de facto acceptance of the political left-leaning petition) versus the case of negotiations towards a peace agreement (rejection of a petition from the political right). See Maoz, supra note 33, at 118.
(251.) The government is the executive branch of the State (section 1 of the Basic Law: the Government). Based on this power and additional powers given to it (see, for example, sections 40 and 41 of the Basic
Law: the Government) it is empowered to administer the foreign and defense policies of the State.
HCJ 5167/00 Weiss v. Prime Minister of the State of Isr. 55(2) PD 455, 471 .
(252.) See generally Goldstone Report, supra note 22 and accompanying text.
(253.) See supra note 23 and accompanying text.
(254.) See Ronen Leivoviwz & Raviv Druker, The Right Wing Parties Oppose the Cease-Fire: The Rockets Will Reach Tel Aviv, NANA10 (Jan. 17, 2009), news.nana10.co.il/Article/?ArticleID=610288.
(255.) See supra note 65 and accompanying text (explaining that Israel has a parliamentary system with the exception of the years 1996-2003, in which direct elections of the Prime Minister were held).
(256.) See RUBINSTEIN & MEDINA, supra note 33, at 822-23.
(257.) However, the democratic legitimacy of the President weakens after election and especially if the President's political party is defeated. See, e.g., Ivo H. Daalder & James M. Lindsay, Lame-Duck Diplomacy, 24 WASH. Q. 15, 23 (2001) (discussing the coordination between the Bush and Clinton Administrations during the transition of power).
(258.) See supra Part III.B (discussing prohibitions on public-sector appointments during caretaker periods).
(259.) See Chief Rabbinate of Israel Law, 5740-1980, SH No. 965 p. 90, [section] 16 (Isr.).
(260.) See id. [section][section] 4, 7, 8.
(261.) For an analysis of the gap between the letter of the law and common practice regarding political influence on such appointments, see, for example, HCJ 6673/01 Movement for Quality Gov't in Isr. v. Minister of Transp. 56(1) PD 799, 815  (Isr.).
(262.) See Bruce Ackerman, The Court Packs Itself, AM. PROSPECT, Feb. 12, 2001, at 48 ("To allow this president to serve as the Court's agent is a fundamental violation of the separation of powers.").
(263.) 5 U.S. (1 Cranch) 137 (1803).
(264.) See supra Part III.B.4 ("President Thomas Jefferson, who followed Adams, treated these last minute appointments as illegitimate and attempted to undo them through various drastic measures.").
(265.) See supra Part III.B.4 ("Adams intended to pack the judiciary with judges who were affiliated with or identified with the Federalists in the face of the already-known Republican electoral takeover of both the presidency and Congress.").
(266.) For the composition of the Judicial Appointment Committee, see supra note 132 and accompanying text.
(267.) See REPORT OF THE JUDICIAL APPOINTMENT PROCEDURE COMMITTEE 25 (2001).
(268.) See HCJ 10357/08, Legal Forum for the Land of Isr. v. Gov't of Isr., at 3 (Dec. 9, 2008), Nevo Legal Database (by subscription) (Isr.).
(269.) See HCJ 1635/90 Zharzhevski v. Prime Minister, 45 PD 749, 775  (Isr.); HCJ 910/86 Ressler v. Minister of Def., 42(2) PD 441, 474  (Isr.) ("Adjudication is characterized by determination between claims, whatever content."). One must, however, be mindful of evasive tactics that the court employs in order to avoid making decisions in particularly difficult cases. See, e.g., Daphne Barak-Erez, The Justiciability Revolution: An Evaluation, 50 HAPRAKLIT 3, 3-27 (2008); Yoav Dotan, Judicial Activism in the HCJ, in JUDICIAL ACTIVISM: FOR AND AGAINST 65--68 (Gavison et al. eds., 1990).
(270.) See Barak-Erez, supra note 269, at 10.
(271.) See Beermann & Marshall, supra note 8, at 1270 ("There are no cases addressing presidential duties and obligations with respect to transition, and even if a legal dispute developed, it is likely that a court would find it nonjusticiable."); Davis et al., supra note 4, at 11, 12 (indicating that Australian caretaker governments are regulated by conventions, which are not enforceable by the courts).
(272.) Cf. Thayer, supra note 104, at 155-56 (warning against expansion of judicial oversight of government as it may shift responsibility to the courts instead of the elected branches).
(273.) See supra Part III.A.
(274.) See HCJ 769/02 Public Comm. Against Torture in Isr. v. Gov't of Isr., 57 (6) PD 285, [paragraph][paragraph] 51-54  (Isr.) (targeted killings); see also HCJ 3799/02 Adalah v. Cent. Commander of IDF, 60(3) PD 67, [paragraph][paragraph] 5-7, 25  (Isr.) (human shields).
(275.) In other cases, the court stated that it perceives the preservation of the democratic character of the state as its core function and a principle so important that even a "Basic Law" will be powerless to abolish democracy or materially change it. See, for example, HCJ 6427/02 Movement for Quality Gov't v. Knesset, [paragraph] 74 (Barak, President), [paragraph] 28 (Cheshin, Deputy President) (May 11, 2006), Nevo Legal Database (by subscription) (Isr.) (regarding the application of Israeli compulsory military service laws to Yeshiva students).
(276.) See generally JOHN HART ELY, DEMOCRACY AND DISTRUST (1980) (advancing a theory that justifies judicial review only when it serves to enhance the democratic process, such as promotion of equality, free speech, the supervision of the election process, and protection of minorities rights).
(277.) See, e.g., Jide Nzelibe, The Uniqueness of Foreign Affairs, 89 IOWA L. REV. 941 (2004) (discussing the institutional characteristics of the judicial branch and how they should affect the judicial role in supervising issues of foreign affairs).
(278.) See, e.g., Tomer Broude, Entering into Treatises in the State of Israel From Theory to Practice, in TREATY MAKING AUTHORITY IN THE STATE OF ISRAEL: CRITICAL ANALYSIS AND PROPOSALS FOR REFORM 48-77 (2009); Barak Medina & Yuval Shani, Division of Authority in the Process of Entering into an International Treaty by the State: Basic Principles, in THE AUTHORITY TO ENTER INTO TREATIES IN THE STATE OF ISRAEL, 5-30 (Moshe Hirsh ed., 2009), available at law.huji.ac.il/upload/Treaties.doc.
(279.) See sources cited supra note 278.
(280.) See supra Part II.B.
(281.) RUBINSTEIN & MEDINA, supra note 33, at 747. For a different opinion, see Yoram Danziger, Strengthening the Status of the Knesset Decisions--How?, 34 HAPRAKLIT 212 pt. I, 413 pt. II (1982).
(282.) Interestingly, there are those who argue that the courts should supervise a decision of the government to hold a no-confidence vote and hold early elections. See Raymond Youngs & Nicklaus Thomas-Symonds, The Problem of the 'Lame Duck' Government: A Critique of the Fixed-Term Parliaments Act, PARLIAMENTARY AFF. (2012).
(283.) See JOHARI, supra note 1, at 140. In fact, already in 1975, an unofficial committee on electoral reforms in India proposed that "[a] convention backed by legal sanction should be developed" that restricts the actions of caretaker governments. Id.
(284.) See id. at 142-45 (suggesting instructions the Indian presidential communique that dissolves the Lok Sabha, or lower house of Parliament, should provide to the caretaker government, including to avoid important policy decisions, remain no more than three months, and hold free and fair elections); Saviprasad, supra note 5, at 398-99, 401 (discussing the Indian Constitution and caretaker governments); see also Shriniwas Gupta, The President and Caretaker Government--A Modus Vivendi, 7 CENT. INDIA L.Q. 27, 37-38, 404-05 (1994) (arguing that there is a need to amend the Indian Constitution to clarify that the President is free to reject the advice of a caretaker government); Roy, supra note 5, at 94-102.
(285.) See JOHARI, supra note 1, at 142-45.
(286.) Madan Murari v. Charan Singh, (1980) A.I.R. 95 (Cal.) 95, 105-06 (1979) (India), available at http://judis.nic.in/supremecourt/ehejudis.asp.
(287.) Id. The court handed down the decision on December 11, 1979. It should be noted that the Bulgarian Constitutional Court, too, played a role in this field. It issued an interpretive decision in 1993 regarding the powers of caretaker governments. See Hristo D. Dimitrov, The Bulgarian Constitutional Court and Its Interpretive Jurisdiction, 37 COLUM. J. TRANSNAT'L L. 459, 488-89 (1999) (exploring the value of ex ante guidance from the Constitutional Court at times of political volatility with reference to Decision 20/92, DV 1 (1993)).
(288.) See supra note 88 and accompanying text.
(289.) See Klein, supra note 4, at 282 (comparing Sweden and Austria, where caretaker governments have a limited mandate, to Israel, where the caretaker government has the same authority as an established government).
(290.) See BERENSON REPORT, supra note 59, at 6.
(291.) See Weill, supra note 2, at 1112 (asserting the value of the regular affairs limitation on caretaker governments, which is widely accepted in commonwealth countries).
(292.) This statement was made famous in the definition of pornography in Jacobellis v. Ohio, 378 U.S. 184 (1964). See id. at 197 (Stewart J., concurring).
(293.) See HCJ 3267/97 Rubinstein v. Minister of Def. 52(5) PD 481, 508  (Isr.); see also Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 317-19 (2000) (providing a brief history of the nondelegation doctrine).
(294.) See Weill, supra note 2, at 1112 (applying legal scholars' concerns of the potential agency problems that can occur outside of the regular course of affairs to lame-duck governments).
(296.) See HCJ 6061/08 Israel v. Dep't of Agric., at [paragraph][paragraph] 12-18 (Aug. 19, 2009) (Arbel, J.), Nevo Legal Database (by subscription) (Isr.); HCJ 11163/03 Arab Higher Monitoring Comm. v. Prime Minister of Isr., at [paragraph][paragraph] 38-40 (Feb. 27, 2006) (Cheshin, Deputy President). Nevo Legal Database (by subscription) (Isr.); Weill, supra note 2, at 1113 (applying the animating principle behind the nondelegation doctrine--which requires certain fundamental decisions to be made by the legislature rather than the executive--to avoid the agency problems that could arise with a lame-duck government).
(297.) See Boston et al., supra note 3, at 632 (describing caretaker conventions in parliamentary systems where the caretaker government retains its legal authority but is expected to avoid "issues of significance").
(298.) See id. at 634-36 (describing how, after initial disagreement between the outgoing Prime Minister and incoming government, the incumbent implemented the strategy advised by the new government for responding to the exchange-rate crisis).
(299.) See TIERNAN & MENZIES, supra note 51, at 54 (describing New Zealand's approach to transitional arrangements, which recommends that caretaker governments facing decisions that will bind the incoming government either defer such decisions, create temporary solutions, or resolve them in consultation with other parties); see also Davis et al., supra note 4, at 14 (describing the Commonwealth's flexible approach to temporary public appointments during a caretaker period). See generally sources cited supra note 51 (codifying constitutional conventions).
(300.) See Klein, supra note 4, at 285-86 (suggesting that a caretaker government be empowered to act as it wishes in the absence of specific instructions from the Knesset and thereby avoid the problem of government paralysis).
(301.) The Parliament Act of 1911 endorsed a perception of distinguishing between a fresh and an old mandate from the people. The House of Commons' power to pass statutes was at its peak when its mandate was fresh from the people and at its lowest point toward the end of its life. This is so because only in the last two years of a parliament's life the Lords' suspensory veto meant potentially de facto absolute veto. Rivka Weill. Centennial to the Parliament Act 1911: The Manner and Form Fallacy, PUB. L. 105, 117 (2012). See generally ACKERMAN, LAMEDUCK IMPEACHMENT, supra note 8 (arguing in favor of restricting the authority of lame-duck Congresses to impeach the President based on legitimacy concerns).
(302.) Section 15(2) of the Constitutional Act of Denmark of June 5, 1953, states:
When the Folketing [Parliament] passes a vote of no confidence in the Prime Minister, he shall ask for the dismissal of the Ministry unless writs are to be issued for a general election. Where a vote of censure has been passed on a Ministry, or it has asked for its dismissal, it shall continue in office until a new Ministry has been appointed. Ministers who remain in office as aforesaid shall perform only what may be necessary to ensure the uninterrupted conduct of official business.
CONSTITUTIONAL ACT OF DENMARK OF JUNE 5, 1953, [section] 15(2), available at http://www.eu-oplysningen.dk/upload/application/pdf/0172b719/Constitution%20of%20 Denmark.pdf.
(303.) See supra note 37 and accompanying text.
(304.) In fact, the Berenson Committee included such a recommendation in its report. See BERENSON REPORT, supra note 59; see also JOHARI, supra note 1, at 144 (suggesting that caretaker periods be limited to two or three months at most in India, despite the fact that India is the most populated democratic country in the world and therefore requires a relatively long election period).
Rivka Weill, Associate Professor, Radzyner School of Law, Interdisciplinary Center (IDC), Herzliya. J.S.D., LL.M. Yale Law School. An early partial version of this Article was presented at an International Conference on Israeli Constitutional Law in Comparative Perspective in Spring 2011 organized by Bar-Ilan University, Tel-Aviv University, and the IDC. I thank Bruce Ackerman, Jack M. Beermann, Margit Cohn, David Fontana, Sanford Levinson, Roz Myers, and Adam Tomkins for their helpful comments on previous drafts of this Article. This Article is one of a series of articles I have written on caretaker and lame-duck governments. The first, Twilight Time: On the Authority of Caretaker Government, 13 LAW & GOV'T 167 (2010), written in Hebrew, addressed solely Israeli caretaker governments. The second, Constitutional Transitions: The Role of Lame Ducks and Caretakers, 2011 UTAH L. REV. 1087, dealt with caretaker and lame-duck administrations in both parliamentary and presidential systems through conventions alone, not enforceable in courts, and developed the appropriate guidelines for such constitutional conventions. This Article builds on both previous works to suggest when and how courts should intervene and enforce limitations on constitutional transitions. Furthermore, Twilight Time assumed in brief that the U.S. nonintervention policy in lame-duck administrations was justified because of the nature of the presidential system. In contrast, this Article suggests that Israel's attitude of intervention is superior to the U.S. solution and should even be considered in the United States. This Article thus expands the work done in Twilight Time with regard to Israeli caretaker governments operating in a parliamentary system so that its lessons may become applicable with regard to transitional governments in general operating in both presidential and parliamentary systems alike. It should be noted that Hebrew citations and sources were translated by the author, unless noted otherwise.
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|Title Annotation:||III. Treating Caretaker Action as Justiciable C. Distribution of Material Goods to the Public through VI. Conclusion, with footnotes, p. 1417-1446|
|Publication:||Vanderbilt Journal of Transnational Law|
|Date:||Nov 1, 2012|
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