Towards One-Branch ‘Democracy’

Political revolutions usually happen all at once – and are easily recognizable. Not so political “devolutions” i.e., the gradual withering away of structural democratic governance. But this is precisely what is happening in Israel and in the United States.

One of the two central foundations of modern-age democracy (the other being wide-ranging civil rights for the citizenry) is the separation of powers between the three main branches of government: Legislative, Executive, and Judicial. Note that I listed the Legislative first, because in theory this is the beating heart of the system, where laws are passed by representatives closely tied by periodic elections to the populace. The Executive branch is then mandated to carry out (execute) such legislation. If and when there are disagreements between the two branches regarding the intent or interpretation of those laws, the Judicial branch steps in to settle the dispute.

In the past several decades in the U.S., and more recently in Israel, the balance of power between these two main branches has slowly swung in the Executive branch’s direction. One reason for this is that the pace of modern life often demands a quick response, something the Legislative branch is not equipped to do (reasoned debate and consideration being its forte). This is especially the case when the country is faced with external threats – something that Israel suffers from more than the U.S., or for that matter more than almost any other country in the world.

The real problem arises when such a tectonic shift occurs in other areas of government policymaking, mostly domestic. Today, this can be seen clearly in Israel and the United States. President Trump has decided independently on a host of policies that have traditionally (and by law as well) been the purview of Congress: tariffs; immigration; climate; etc. His argument: America is in a “national emergency,” and therefore he has the authority to make such decisions without Congressional approval or budgeting.

Unfortunately, Republican Party members of the House and the Senate have almost unanimously gone along with such unilateral, Constitutionally questionable decisions, without any attempt at pushback to (re)assert Congressional authority. (Ditto regarding several nominations for executive office, without any serious experience in their intended bailiwick – other than blind loyalty to the president.)

For its part, Israel has been in a state of war for almost two years. Yet the attempt to radically weaken the State Attorney General started well before the war broke out (indeed, the ensuing public outrage and societal divide might well have been a factor in encouraging Hamas to attack Israel on Oct. 7, 2023). The most recent example of Executive Branch overreach occurred this week: removing the Likud’s own MK Yuli Edelstein from the chairmanship of the Knesset’s important Security & Foreign Affairs Committee, to be replaced by Likud MK Boaz Bismut who is more amenable to pushing through a law enabling many (most?) haredim not to serve in the army.

As a result of all this, the public in both countries have turned to the courts (District and Supreme) to halt the erosion of legislative power and/or to halt the executive’s “unconstitutional” power grab. As of now, the U.S. picture is decidedly mixed: several presidential Executive Orders have been (temporarily) halted pending more serious consideration of the issues; others have been given the green light. Although President Trump has occasionally railed against a few decisions that went against his policies, there has been no attempt to undermine the Supreme Court’s authority to decide such matters.

Not so the situation regarding Israel’s Supreme Court. The initial “Judicial Reform/Revolution” (pick your nomenclature depending on your political position) was, and still is, primarily aimed at diminishing the Judicial Branch. First, by weakening the State Attorney General who stands with one leg in the Judicial Branch and the other in the Executive Branch; this office constitutes the main legal bulwark against the government doing something legally unacceptable. Second, undermining the political independence of the Supreme Court through the Minister of Justice’s plan to revamp the Appointments Committee that appoints justices; this, so that the Executive Branch has control over who gets appointed to the country’s highest court.

True, the U.S. Senate chooses the Supreme Court justices (upon the president’s nomination), so that there is a precedent for that process to be politicized. However, Israel doesn’t have the same constitutionally structured separation of the three branches of government, thus necessitating far more judicial independence.

The Israeli public understands this well. The result: almost unprecedented, massive protests during 2023 until that October when Hamas attacked. Yet despite the ongoing war and non-release of the remaining hostages, the Israeli government this week went ahead to “fire” the State Attorney General – a move that by most accounts will be struck down by Israel’s Supreme Court because the law already has a procedure for such a move: a professional, independent committee mandated by law.

Throughout this descriptive analysis, you might have noticed a key word being repeated: “independence/independent.” Without widespread freedom of thought and action, the natural tendency of the political system everywhere is to concentrate power, at the end (if it comes to that) leaving only one branch – and individual – solely in charge of the whole polity. Technically, that can still be called “democracy” if one wishes to view the term narrowly as involving a periodic election but nothing more than that (e.g., Putin’s Russia). This is precisely what Israel’s present government is claiming: “we won the election, so we have a mandate to do (virtually) anything.” However, that’s a perversion of modern democracy – especially when poll after public opinion poll shows a large majority of Israelis opposing changing the rules of the judicial game (i.e., firing the Attorney General, changing the judicial appointments process, etc.).

What to do about all this? Stay tuned: next week I’ll put forward some constructive proposals to strengthen Israel’s “demos kratos” by returning some direct power to the people.