Judicial Review of Constitutional Transitions: War and Peace and Other Sundry Matters

Abstract

Constitutional transition periods present a twilight time between two executives. At such times, the outgoing executive’s authority is questionable because of the democratic difficulties and agency concerns that arise at the end of the executive’s term. Thus, parliamentary systems developed constitutional conventions that restrict caretaker governments’ action. These conventions seem to achieve the desired results in the United Kingdom, Canada, New Zealand, and Australia. In contrast, in the United States, the prevailing norm is that there is only one president at a time, and this is the incumbent president, who is fully authorized to govern the country and his or her discretion is unfettered. Transition periods are thus exploited by U.S. lame-duck presidents to make last minute appointments, regulations, and even international agreements. Israel does not fit either of the two poles in the dichotomy between parliamentary systems that successfully deal with caretaker authority and presidential systems that do not. Though a parliamentary system, its constitutional history is full of examples of abuse of caretaker power. This has led Israel’s Supreme Court to treat the sphere of authority of caretaker governments as justiciable in contrast to other courts’ treatment of the subject. Exploring its case law in issues of war, peace, and other lesser matters offers a rich case study of the standards that should govern this unexplored legal–political area.

Using Israel as a case study within a comparative constitutional framework, this Article suggests three important lessons: First, it is not the nature of the constitutional system per se, whether parliamentary or presidential, that determines the success of preventing abuses of transitional governments’ 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 courts are inherently unable to regulate. Rather, if constitutional conventions fail to do their job or do not evolve, 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 to which actions are permitted by transitional governments and the circumstances under which they are allowed. The Article concludes by delineating such general guidelines.

Keywords: Lame-Duck President, caretaker government, Constitutional transition