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NON-STATUTORY EXECUTIVE POWERS: ASSESSING GLOBAL CONSTITUTIONALISM IN A STRUCTURAL-INSTITUTIONAL CONTEXT

Published online by Cambridge University Press:  19 December 2014

Margit Cohn*
Affiliation:
Lecturer in Law, Hebrew University of Jerusalem, margit.cohn@mail.huji.ac.il.

Abstract

This article analyses the source, nature, and use of unilateral, non-statutory executive powers, frequently employed as a governance tool but rarely studied in a comparative context. Exercised in the absence of direct statutory authorization, such powers are often invoked by executives in emergency and foreign affairs contexts, but are equally central to domestic policy-making. Unilateral executive power challenges two central democratic values that support the separation of powers ideal: representation and deliberation. Different structural treatments of these powers are considered through a comparison of three constitutional regimes, those of the United States, the United Kingdom and Israel. Despite material structural differences between these systems, the emerging patterns are similar enough to support the argument that direct law-making by the executive is an unavoidable element of the political sphere. Developing a template for comparison analysis, this article shows that a pattern of functional convergence has emerged, unsupported by overt transplantation or borrowing between these systems. The results set a possible challenge to the growing recognition of global world constitutionalism, at least in structural-institutional contexts.

Type
Articles
Copyright
Copyright © British Institute of International and Comparative Law 2014 

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References

1 ‘President Obama's remarks on new gun control actions, Jan. 16, 2013 (transcript)’, Washington Post, 16 January 2013.

2 The first memorandum directs all Federal law enforcement agencies to trace all firearms recovered in the course of criminal investigations and taken into custody through the Justice Department's Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); the second reinforces, and formalizes, the duty of agencies to share information about individuals with the National Instant Criminal Background System (NICS); the third directs the Secretary of Health and Human Services to conduct or sponsor research into the causes of gun violence. For links to the memoranda see <http://www.whitehouse.gov/briefing-room/presidential-actions/presidential-memoranda?page=1>.

3 J Weisman, ‘Senate Blocks Drive for Gun Control’, New York Times, 17 April 2013.

4 Part 2 of The Constitutional Reform Act 2010 replaces the constitutional convention best known as the Ponsonby Rule with a requirement to lay certain international agreements before Parliament prior to ratification, but the authority of the government to sign treaties is only implied by the requirement that the process be initiated by a Minister. On the prerogative see Part IIIA below.

5 JF Burns, ‘British Territory Used in 2 Renditions Flights’, New York Times, 1 December 2008. See also Lord Hoffmann's reference to the Foreign Secretary's admission of the above, in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2008] 3 WLR 955, 969.

6 For the decision see text to n 45.

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8 On these values see eg Fenichel Pitkin, H, The Concept of Representation (University of California Press 1967)Google Scholar; Fishkin, J, Democracy and Deliberation: New Directions for Democratic Reform (Yale University Press 1991)Google Scholar. One may argue that in presidentialist regimes, the direct election of the head of the executive cancels out the representation deficit. However, unilateral presidential action still suffers from the absence of formal deliberation, inherent to the legislative process. On other differences between presidential and parliamentary regimes see Part IIB below.

9 Of course, legislation is not necessarily a better governance tool. Vague statutes and broad delegations may grant executive action a façade of legality while containing no substantive constraint. This type of ‘grey hole’ or ‘fuzzy legality’ merits further attention elsewhere.

10 The literature depicts a transformation from the Minimal State, through the Welfare State to the current Neo-Liberal State. Roughly, this corresponds to visions of the State as peacekeeper, through welfare-advancer, to regulator. See Polanyi, K, The Great Transformation (Rinehart 1944)Google Scholar; Majone, G, ‘From the Positive to the Regulatory State: Causes and Consequences of Changes in the Mode of Governance’ (1997) 17 JPubPol 139Google Scholar.

11 This extensive debate points at an ever-growing volume of rules pertaining to an ever-broadening scope of government involvement; to fast-changing conditions that require responsive and flexible management; and to professionalization of many monitored areas, that cannot be met by legislative texts. See eg Stewart, RB, ‘The Reformation of American Administrative Law’ (1975) 88 HarvLRev 1667Google Scholar; Culp Davis, K, Discretionary Justice: A Preliminary Inquiry (Louisiana State University Press 1969)Google Scholar; Galligan, DJ, Discretionary Powers (Clarendon Press 1986)Google Scholar.

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14 R v Criminal Injuries Compensation Board ex parte Lain [1967] 2 QB 864.

15 R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] QB 811.

16 On the non-statutory nature of such powers see Daintith, T, ‘Regulation by Contract: The New Prerogative’ (1979) 32 CLP 41Google Scholar; Freedland, M, ‘Public Law and Private Finance: Placing the Private Finance Initiative in a Public Law Sphere’ (1998) PL 288Google Scholar.

17 Jenkins v AG (1971) 115 Sol J 674.

18 US v Midwest Oil, 236 US 459 (1915).

19 HCJ 282/61 El Saruji v Minister of Religion, 17 PD 188 (English translation at <www.court.gov.il>.

20 For comparative research using ‘prototypical cases’ see Hirschl, R, ‘The Question of Case Selection in Comparative Constitutional Law’ (2005) 53 AJCL 125, 142–44CrossRefGoogle Scholar (posited as one of five modes of case selection).

21 For a general emphasis on ‘functionality’, that implies the need to consider reality, rather than merely formal rules, see Zweigert, K and Kötz, H, Introduction to Comparative Law 38 (3rd rev edn, T Weir trans, Clarendon Press 1998)Google Scholar.

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23 Blackstone, W, Commentaries on the Laws of England (8th edn, Clarendon Press 1778)Google Scholar bk I, ch 7, 239.

24 Dicey, AV, An Introduction to the Law of the Constitution (8th edn, Macmillan 1915) 282Google Scholar.

25 The Crown officially summons, prorogues and dissolves Parliament as well as affixes his or her assent to bills passed by Parliament—since 1967, under the Royal Assent Act. For a general overview see eg Bradley, AW and Ewing, KD, Constitutional and Administrative Law (15th edn, Pearson Longman 2011) 249–54Google Scholar.

26 Chitty, J, A Treatise on the Law of the Prerogatives of the Crown (Butterworth 1820)Google Scholar.

27 See eg Bradley and Ewing (n 25) 246–54; Burmah Oil v Lord Advocate [1965] AC 75 (PC), 145. But see McBain, GS, ‘Expanding Democracy – Transferring the Crown Prerogatives to Parliament’ (2014) 6 Review of European Studies 1CrossRefGoogle Scholar.

28 Dicey (n 24) 310.

29 ibid ch XIV.

30 Hewart, Lord, The New Despotism (Ernest Benn 1929)Google Scholar.

31 Section 3, Coinage Act 1971; section 11, Coinage Act 1870. Similarly, the Territorial Waters Jurisdiction Act 1878, which fixed British territorial waters under the three nautical-mile rule, was mainly concerned with criminal jurisdiction; the Territorial Seas Act 1987 not only quadrupled the extent, but also legislated the prerogative to change the extent. The power is granted to the Crown, but now under statute.

32 Since parliament's vote on the deployment of forces to Iraq in 2003, the government has recognized this convention, expressed inter alia in the Cabinet Manual and reaffirmed in subsequent government representations. The failure of such a vote regarding intervention in Syria in 2013 and the subsequent reversion of government policy have reinforced this substantive political constraint on this prerogative power. See Cabinet Manual (1st edn, 2011) para 5.38; House of Lords Constitution Committee, Constitutional Arrangements for the Use of Armed Forces, 2nd Report of Session 2013–14, HL Paper 46 (July 2013); C Mills, Parliamentary Approval for Deploying the Armed Forces: An Update, Commons Library Standard Note SN05908 (December 2013). This important development has yet to lead to legislation, which is not currently forthcoming; the deployment of personnel for non-combat purposes, as in the Case of Mali in 2013, remains, under government policy, free from the constraint; and, generally, policy decisions are still made under the prerogative. See eg G Phillipson. ‘“Historic” Commons' Syria vote: the Constitutional Significance’, Parts I and II, <http://ukconstitutionallaw.org/2013/09/19/gavin-phillipson-historic-commons-syria-vote-the-constitutional-significance-part-i/> and <http://ukconstitutionallaw.org/2013/11/29/gavin-phillipson-historic-commons-syria-vote-the-constitutional-significance-part-ii-the-way-forward/>; S Wilks-Heeg, A Blick and S Crone, ‘Despite David Cameron's Defeat in Syria, the UK Parliament Actually Has Relatively Weak War Powers Compared to Legislatures in Other Democracies’ <http://blogs.lse.ac.uk/europpblog/2013/08/30/despite-david-camerons-defeat-on-intervening-in-syria-the-uk-parliament-actually-has-relatively-weak-war-powers-compared-to-legislatures-in-other-democracies/>.

33 For example, the Criminal Injuries Compensation Scheme, non-statutory for more than two decades. Challenged in Lain (n 14), the court reaffirmed its legality under the prerogative.

34 Jenkins (n 17). Reliance on the prerogative as basis for executive power is cited in Wade, HWR, Constitutional Fundamentals (rev edn, Stevens 1989) 61Google Scholar.

35 See further Cohn, M, ‘Medieval Chains, Invisible Inks: On Non-Statutory Powers of the Executive’ (2007) 97 OJLS 118Google Scholar.

36 Winterton, G, ‘The Prerogative in Novel Situations’ (1983) 99 LQR 407Google Scholar; Harris, BV, ‘The “Third Source” of Authority for Government Action’ (1992) 109 LQR 626Google Scholar; Gladstone, D, ‘What Shall We Do with the Crown Prerogative?’ (1998) 4(3) JLS 1Google Scholar; Cohn (n 35).

37 See Malone v Metropolitan Police Commissioner [1979] 1 Ch 344; R v Secretary of State for Health ex parte C [2000] HRLR 400.

38 Lester, A and Weait, M, ‘The Use of Ministerial Powers without Parliamentary Authority: The Ram Doctrine’ (2003) PL 415Google Scholar. For critique of this direction see also Gladstone (n 36); Cohn (n 35).

39 See eg the 2013 report of the House of Lords' Select Committee on the Constitution, which inter alia concludes that ‘[t]he so-called “Ram doctrine” is misleading and inaccurate, and should no longer be used’. House of Lords Select Committee on the Constitution, 13th Report of Session 2012–13, The Pre-emption of Parliament, HL Paper 165, 4.

40 AG v De Keyser's Royal Hotel [1920] AC 508, 528, 568 (1920).

41 See R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] QB 26 (CA), 59 (power of central government to supply anti-riot equipment to local police stations in the argued absence of such authority in the Police Act. The Court of Appeal found sufficient basis in the statute, but addressing the question of the continued existence of a prerogative to maintain ‘the peace within the realm’, the court adopted the lower court's reasoning that the Act did not create a ‘monopoly’ that excluded central government action in this field); Lain (n 14) (no discussion of the existence of parallel, statutory victim compensation schemes).

42 De Keyser (n 40).

43 Chandler v D.P.P. [1964] AC 763, 810 (per Lord Devlin: courts will intervene to correct excess or abuse); Lain (n 14) 881 (review of quasi-judicial action); Laker Airways v Department of Trade [1976] 1 QB 643, 705 (per Lord Denning: improper or mistaken discretion in the exercise of prerogative powers is examinable in courts).

44 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 400, 407, 410, 417–18, 423–24 (1984) (GCHQ) (per Lord Fraser, Lord Scarman, Lord Diplock, Lord Roskill and Lord Brightman, respectively).

45 Bancoult 2 (n 5) 969.

46 GCHQ (n 44) 418.

47 As per the Annapolis Convention resolution, text in Jensen, M, Kaminski, JP and Saladino, GJ (eds), The Documentary History of the Ratification of the Constitution, Vol. I: Constitutional Documents and Records, 1776–1787 (Wisconsin Historical Society Press 1976) 184Google Scholar.

48 See eg Farrand, M, The Framing of the Constitution of the United States (Yale University Press 1913)Google Scholar; Thach, CC, The Creation of the Presidency, 1775–1789 (Johns Hopkins Press 1922)Google Scholar; Fatovic, C, Outside the Law: Emergency and Executive Power (Johns Hopkins University Press 2009)Google Scholar ch V.

49 On the contribution of the Committee of Style in this respect see Thach, ibid 139.

50 But see accounts that emphasize consensus, eg Cronin, TE and Genovese, MA, The Paradoxes of the American Presidency (OUP 1998) 23Google Scholar (claiming that ‘the founders purposely left the presidency imprecisely defined. This was due in part to their fears of both the monarchy and the masses, and in part to their hopes that future presidents would create a more powerful office than the framers were able to do at the time. They knew that at times the president would have to move swiftly and effectively, yet they went to considerable lengths to avoid enumerating specific powers and duties in order to calm the then widespread fear of monarchy’).

51 On the Anti-Federalists see eg Cornell, S, The Other Founders; Anti-Federalism and the Dissenting Tradition in America, 1788–1828 (University of North Carolina Press 1999)Google Scholar.

52 The others were the debate in Congress over presidential removal power, and the debate on the constitutionality of a national bank, held in 1789 and 1791. See generally on the first, Thach (n 48) 140–65; on both, and other disagreements, Cunningham, NE Jr (ed), Jefferson vs. Hamilton: Confrontations That Shaped a Nation (Bedford St. Martin's Press 2000)Google Scholar; Fatovic, C, ‘Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives’ (2004) 48 American Journal of Political Science 429CrossRefGoogle Scholar.

53 Brief of Speech on Submitting His Plan of Constitution, The Works of Alexander Hamilton (HC Lodge ed, Putnams 1904) vol 1 370, 376. See also eg Thach (n 48) 92–4; Farrand (n 48) 87–9.

54 Italics in the original. Pacificus I, in Hamilton, A (Pacificus) and Madison, J (Helvidius) Letters of Pacificus and Helvidius on the Declaration of Neutrality (Gideon 1845) 910Google Scholar. The argument was both functional and textual, the latter referring to the language of the vesting clauses of Articles I and III, which both explicitly defined the enumerated powers as a closed list: ‘[t]he difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms … The different modes of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference’. ibid 10.

55 Helvidius I–IV, ibid 53–92.

56 Fatovic 2004 (n 52).

57 For examples of textual normative analysis (sometimes coupled with history and/or intent) see Calabresi, SG and Rhodes, KH, ‘The Structural Constitution: Unitary Executive, Plural Judiciary’ (1992) 105 HarvLRev 1155Google Scholar; Monaghan, H, ‘The Protective Power of the Presidency’ (1993) 93 YaleLJ 1Google Scholar; Calabresi, SG and Prakash, SB, ‘The President's Power to Execute the Laws’ (1994) 104 YaleLJ 541Google Scholar; Froomkin, AM, ‘The Imperial Presidency's New Vestments’ (1994) 88 Northwestern University Law Review 1346Google Scholar.

58 Prime examples are Lessig, L and Sunstein, CR, ‘The President and the Administration’ (1994) 94 ColumLRev 1Google Scholar and Calabresi and Prakash (n 57), major participants in one of the flare-ups of the debate over the proper role of the presidency, the 1990s dispute over the ‘unitary presidency’, concerned with the power of the president over administrative agencies.

59 The ‘unitary presidency’ debate was sometimes couched with historical analysis in addition to reliance on other methodologies. In addition to the sources cited in nn 57–58, see Flaherty, MS, ‘The Most Dangerous Branch’ (1996) 105 YaleLJ 1725Google Scholar for a general, nuanced view.

60 Lessig and Sunstein (n 58); Kagan, E, ‘Presidential Administration’ (2001) 114 HarvLRev 2245Google Scholar.

61 Suffice to cite two recent opposing contributions: Ackerman, Bruce, The Decline and Fall of the American Republic (Belknap Press 2010)Google Scholar; Posner, EA and Vermeule, A, The Executive Unbound: After the Madisonian Republic (OUP 2011)CrossRefGoogle Scholar.

62 For Lincoln's justifications of his actions during the Civil War, which included the suspension of habeas corpus, see Basler, RP (ed), Abraham Lincoln, The Collected Work (Abraham Lincoln Association 1953–1955)Google Scholar vol VI 300, 302–3, vol VII 281. For Theodore Roosevelt's doctrine see Roosevelt, Theodore, An Autobiography (2nd edn, Macmillan 1914) 372Google Scholar. For references to the series of challenges to the legality of war-making and the deployment of military forces, which did not follow the War Powers Resolution, see esp n 79. See also the so-called ‘torture memos’, inter alia expressing government's arguments that the president draws this power from the commander-in-chief clause, and that any application of the criminal statute that would interfere with his power would be unconstitutional. JS Bybee, ‘Memorandum for Alberto R. Gonzales, Counsel to the President, Standards of Conduct for Interrogation under 18 USC §§2340–2340A’, 1 August 2002, <http://dspace.wrlc.org/doc/bitstream/2041/70964/00355_020801_001display.pdf>) 31–9. But see the 2004 repudiating memo that reinterprets the statute as a constitutional prohibition of torture and fully eliminates the discussion of the commander-in-chief power (D Levin, ‘Legal Standards Applicable under 18 USC §§2340–2340A’, 10 December 2004, <http://www.justice.gov/olc/18usc23402340a2.htm>. Indeed, since Hamdan v Rumsfeld, 548 US 557 (2006), the ‘war on terror’ is largely waged under statutes, rendering unilateral law-making of lesser importance in this context. On this decision see text to n 71.

63 See Mikva, AJ and Hertz, MF, ‘Impoundment of Funds: The Courts, the Congress and the President: A Constitutional Triangle’ (1974) 69 ULRev 335Google Scholar. For a more recent assessment see Brownell, RE II, ‘The Constitutional Status of the President's Impoundment of National Security Funds’ (2001) 12 SetonHallConstLJ 1Google Scholar.

64 See Cooper, PJ, By Order of the President: The Use and Abuse of Executive Direct Action (University Press of Kansas 2002)Google Scholar ch 7; Bradley, CA and Posner, EA, ‘Presidential Signing Statements and Executive Power’ (2006) 23 Constitutional Commentary 307Google Scholar.

65 See eg Spiro, PJ, ‘Treaties, Executive Agreements, and Constitutional Method’ (2001) 79 TexasLRev 961Google Scholar; Clark, BR, ‘Domesticating Sole Executive Agreements’ (2007) 93 VaLRev 1573Google Scholar.

66 Affirmed in US v Midwest Oil (n 18).

67 George Washington's proclamation of neutrality of 1793 is usually cited as the first proclamation. Declaring the neutrality of the United States in the war between France and Great Britain, the proclamation orders the prosecution of citizens violating the law of nations, Ordering gave rise to the first dispute over the proper extent of presidential powers. See A Proclamation, 22 April 1793, in Richardson, JR (ed), A Compilation of Messages and Papers of the President 1789–1897 (Government Printing Office 1896–1899) vol I, 156–7Google Scholar. The most notable executive orders ordered the requisitioning of lands (affirmed in US v Midwest Oil (n 18)), the interning of Americans of Japanese ancestry during World War II (later legislated, and affirmed in Korematsu v US, 323 US 214 (1944)), and the subjection of government contractors to anti-discrimination policies after efforts to apply them at the national level failed (the first of the series being EO 11246, ‘Equal Employment Opportunity’, 24 September 1965, 30 FR 12319). (executive orders available at <http://www.archives.gov/federal-register/executive-orders/disposition.html>; <http://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders>. The infamous ‘torture memos’ (n 62) exemplify the possible weight of such measures. For some of the rich literature on the subject, which has grown exponentially since 2001, see Neighbors, WD, ‘Presidential Legislation by Executive Order’ (1964) 37 UColoLRev 105Google Scholar; Mayer, K, With a Stroke of a Pen (Princeton University Press 2002)Google Scholar; Cooper (n 64); Branum, TL, ‘President or King? The Use and Abuse of Executive Orders in Modern-Day America’ (2002) 28 JLegis 1Google Scholar.

68 See GCHQ (n 44) and Bancoult 2 (n 5).

69 Youngstown Sheet & Tube v Sawyer, 343 US 579 (1952) 585 (per Justice Black); see also eg Minnesota v Mille Lacs Band of Chippewa Indians, 526 US 172, 189–90 (1999); Medellin v Texas, 552 US 491, 524 (2008).

70 As in the case of the series of executive orders that subjected government contractors to non-discrimination and other social policies: see eg Farmer v Philadelphia Electric Co., 320 F2d 3 (3d Cir 1964); Farkas v Texas Instrument, 375 F2d 629 (5th Cir 1967); Contractors Association v Secretary of Labor, 442 F2d 159 (3d Cir 1971); AFLCIO v Kahn, 618 F2d 784 (DC Cir 1979). For a more sceptic view see Chrysler v Brown, 441 US 281, 304–5 (1979) (origin of order obscure, no need to decide whether authorized by statutes).

71 Hamdan (n 62). See also Chamber of Commerce v Reich, 74 F3d 1322 (DC Cir 1996) (executive order with no specific statutory base found contrary to legislation).

72 Clinton v City of New York, 118 SCt 2091 (1998).

73 Opinion of the Court, Youngstown (n 69) 582–589.

74 ibid 636–637.

75 In Justice Jackson's words, ‘he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter’. ibid 637.

77 ibid, 610–611. On the issue see Bradley, CA and Morrison, TW, ‘Historical Gloss and the Separation of Powers’ (2012) 126 HarvLRev 411 (2012)Google Scholar. For analysis of this mode of accommodation see below.

78 Youngstown (n 69) 662.

79 For reliance on the political questions doctrine see eg Da Costa v Laird, 471 F2d 1146 (2d Cir 1973) (operations in North Vietnam); Crockett v Reagan, 558 F Supp 893 (DDC 1982) (military aid to El Slavador). For denial for lack of standing see Raines v Byrd, 521 US 811 (1997); Campbell v Clinton, 203 F3d 19 (DC Cir 2000). See also Conyers v Reagan, 765 F2d 1124 (CADC 1985) (mootness); Doe v Bush, 323 F3d 133 (1st Cir 2003) (ripeness). cf Massachusetts v Laird, ibid, (decision on the merits: steady Congressional support found sufficient). Decisions on statute-based action are excluded from citation.

80 See DaCosta v Laird, cert den 405 US 979 (1972); Holtzman v Schlesinger, cert den 416 US 936 (1974).

81 See eg Independent Meat Packers v Butz, 526 F2d 228, 236 (8th Cir 1975) (executive order requiring agencies to conduct impact analysis prior to the making of regulations was primarily ‘a managerial tool’, not enforceable by private civil action).

82 Midwest Oil (n 18).

83 See Massachusetts v Laird (n 79) (the waging of prolonged hostilities was shared by both government branches, and the executive had acted ‘not only in the absence of any Congressional conflicting claim of authority but with steady Congressional support’); Dames & Moore v Regan, 453 US 654 (1981) (concerned with presidential signing of executive agreements and other compacts made between governments; all upheld despite arguments for unconstitutionality for breach of the treaty-making clause, with references to ‘practice’ and ‘acquiescence’).

84 US v Curtiss-Wright, 299 US 304 (1936). See, in the same vein, US v Belmont, 301 US 324 (1923); US v Pink, 315 US 203, 223–224 (1942).

85 For additional analysis of the human rights constraint see text to n 122.

86 Section 11 of the Law and Administration Ordinance of 1948 stipulated that ‘the law which existed in Palestine on … 14th May 1948 … shall remain in force, insofar as there is nothing repugnant to this Ordinance or to other laws which may be enacted … and subject to other modifications as may result from the establishment of the State and its authorities’. Other relevant provisions in this Ordinance are section 12(a), declaring all privileges granted to the Crown or British officials and subjects to be null and void, and section 14, vesting all Royal powers in the Provisional Government, unless otherwise stipulated by Israeli statute. Further, under Article 46 of the Palestine Order in Council 1922–1947, which was formally repealed only in 1980, courts were required, in case of lacunae in the law, to decide in civil matters ‘in conformity with the substance of the common law, and the doctrines of equity in force in England’, subject to a local conditions proviso.

87 Akzin, B, ‘The Prerogative in the State of Israel’ (1950) 7 HaPraklit 566, 590Google Scholar; Lapidoth, R, ‘The Power to Sign International Agreements in the Name of the State of Israel’ in Feinberg, N (ed), Studies in Public International Law in Memory of Sir Hersch Lauterpacht (Magnes Press 1961) 210Google Scholar; Rubinstein, A, ‘The Prerogative in Israel’ (1967) 23 HaPraklit 329, 465Google Scholar; Rubinstein, A, The Constitutional Law of the State of Israel (Schocken 1969) 223–30Google Scholar (in this first edition, extensive attention was granted to the prerogative and its possible legacy).

88 El Saruji (n 19) 191.

89 CrimA 131/67 Kamiar v The State of Israel, 22(2) PD 85, 97 (per Justice Cohn).

90 ibid, 97 (per Justice Cohn). See also ibid, 112 (Per Justice Landau).

91 A few words about Basic Laws are necessary. In 1948, on independence of the State, no formal constitution was introduced, although a written constitution was part of the new State's credo and was also in the basis of international consensus, embodied in the 1947 UN partition decision. Two years after its inception, Israel postponed the idea of enacting a full formal written constitution. Instead, the Knesset decided to enact, piecemeal, Basic Laws that would eventually become chapters in the Constitution. The first basic law, related to the Knesset (the Israeli Parliament) was enacted in 1958. To date Israel has 11 Basic Laws, two of which incorporate some human rights and liberties. The Government received its Basic Law in 1968, 20 years after independence of the State. Between 1948 and 1968, the executive acted on the basis of scattered provisions found in different statutes. None of these referred to the invocation of non-statutory powers. The normative status of Basic Laws, until 1995, was akin to other statute-law pending later constitutionalization. Since the landmark decision of Bank Ha-Mizrahi and other decisions, Basic Laws are generally viewed as pertaining to the constitutional level: CA 6821/93 United Mizrahi Bank v Migdal Cooperative Village, PD 49(4) 221 (English translation at <www.court.gov.il>).

92 This provision remains identical in all three versions of the Basic Law: The Government, enacted in 1968, 1992 and 2001 (numbered 29, 40 and 32, respectively). Reference relies on year of invocation or discussion of the section.

93 As the Minister of Justice declared in the Israeli Parliament during the first reading of the Bill: ‘The experience of Israel and other nations shows that in allocation of functions and powers within the broad framework of political life, some areas may remain borderlike or constitute “no man's land”. Until now, Israeli governments have solved such problem in the spirit of the unwritten English Constitution. A comprehensive statute must determine once and for all that these undefined areas are handed to the executive, since these are matters of execution.’ 46 Divrei Ha-Knesset 2054. No information on the source, or process of the formulation of the provision can be found: both the debates in the Knesset plenary and the proceedings of the Knesset standing committee divulge nothing.

94 Zamir, I, Administrative Power (Nevo 1996) 334, 339–40Google Scholar.

95 HCJ 222/68 Nationalist Circles v Minister of Police 24(2) PD 141; HCJ 109/70 Coptic Patriarchate v Minister of Police 25(1) PD 225; HCJ 302/72 Hilou v Government of Israel 27(2) PD 169, 176; HCJ 188/77 Coptic Patriarchate v Government of Israel 33(1) PD 225.

96 Four of the post-1990 cases involved non-statutory subsidies, one referred to government action in absorption of new immigrants, and the other two discussed security issues and foreign relations.

97 First clearly expounded in HCJ 2918/93 Kiryat-Gat Municipality v State of Israel, 47(5) PD 832. In the 2001 version of the Basic Law, the title of the provision was changed to ‘residual powers’, further reflecting the recognition of the centrality of this constraint.

98 HCJ 5128/94 Federman v Police Minister, 48(5) PD 547 (dispatch of policemen to Haiti as part of International task force was not based on the Police Act, and pertained to the field of foreign affairs rather than internal security; hence, no residuality).

99 HCJ 381/91 Gross v Ministry of Education and Culture 46(1) 53; HCJ 5062/97 Israel Loss Adjusters Association v The State of Israel 55(1) PD 181; HCJ 8600/04 Shimoni v The Prime Minister 59(5) PD 673.

100 This rule was formulated early on, and remains one of the mainstays of Israeli administrative law. See HCJ 1/49 Bejerano v Minister of Police 2 PD 80; Zysblat, A, ‘Protecting Human Rights in Israel without a Written Constitution’, in Zamir, I and Zysblat, A (eds), Public Law in Israel (Clarendon Press 1996) 47Google Scholar.

101 Kiryat Gat (n 97).

102 Basic Law: Freedom of Occupation, section 4; Basic Law: Human Dignity and Liberty, section 8. For post-1992 decisions see HCJ 5100/94 Public Committee against Torture in Israel v The Prime Minister of Israel, 53(4) PD 817 (action of Secret Service that included torture was not based on statute and was therefore a priori illegal); HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v The Prime Minister (27 February 2006) (assistance plan that discriminated between Jewish and Arab localities). English translations of both decisions at <www.court.gov.il>. The strict rule requiring explicit authorization has recently moved towards establishing a more relative rule, according to which the degree of detail required in authorizing statute depends on the context, and other aspects of the case. HCJ 6824/07 Manaa v Israel Tax Authority (20 December 2010). Still, a statutory authorization is required.

103 HCJ 3267/97 Rubinstein v Minister of Defense, 52(5) PD 481, English translation at <www.court.gov.il>; Supreme Monitoring Committee (n 101).

104 Supreme Monitoring Committee (n 101).

105 The first constraint drew on section 1 of the Basic Law: The Government, under which ‘the Government is the executive authority of the State’. Both constraints were discussed in Public Committee against Torture and Supreme Monitoring Committee (n 101).

106 n 21.

107 For the concept see Saunders, C, ‘A Constitutional Culture in Transition’ in Wyrzykowski, M (ed), Constitutional Cultures (Institute of Public Affairs 2000) 37Google Scholar.

108 Frankenberg, G, ‘Constitutional Transfer: The IKEA Theory Revisited’ (2010) 8 ICON 563Google Scholar. See also Frankenberg, G, ‘Constitutions as Commodities: Notes on a Theory of Transfer’ in Frankenberg, G (ed), Order from Transfer: Comparative Constitutional Design and Legal Culture (Edward Elgar 2013)CrossRefGoogle Scholar 1 (additional focus on the stage of re-contextualization, during which transferred items are adapted and reshaped, and on ‘non-marketable items’).

109 Zweigert and Kötz (n 21) 39.

110 Frankenberg, G, ‘Critical Comparisons: Re-Thinking Comparative Law’ (1985) 26 HarvIntlLJ 411, 456Google Scholar. See also Frankenberg, G, ‘Stranger than Paradise: Identity & Politics in Comparative Law’ (1997) UtahLRev 259Google Scholar.

111 eg Legrand, P, ‘The Same and the Different’ in Legrand, P and Munday, R (eds), Comparative Legal Studies: Traditions and Transitions (CUP 2003) 240CrossRefGoogle Scholar. On the debate in general see Danneman, G, ‘Comparative Law: Study of Similarities or Difference?’ in Rosenfeld, M and Sajó, A (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012) 383Google Scholar.

112 For the US see Curtiss-Wright (n 84); for Israel see El-Saruji (n 19).

113 Text to n 83.

114 Text to n 98.

115 For Israel see Gross and Shimoni (n 99); for the UK see Northumbria (n 27); for the US see Youngstown (n 76) (implied in Justice Jackson's second ‘practical situation’).

116 eg text to n 79. For the UK see Bancoult 2 (n 5).

117 Text to n 40.

118 Text to n 97.

119 Text to n 73.

120 Text to n 99.

121 For the UK, see Northumbria (CA) (n 27); for Israel, see Federman (n 98).

122 Dames and Moore (n 83).

123 For an earlier call for the adoption of this constraint see Monaghan (n 57).

124 19 How. St. Tr. 1030, 2 Wils KB 275, p 807 [1765].

125 Douglas v Hello! [2001] QB 967 (CA), decided a few weeks after the entry into force of the Human Rights Act. Note, also, that the ‘principle of legality’ expounded in Simms (2000), according to which ‘fundamental rights cannot be overridden by general or ambiguous words’ is a rule of statutory interpretation, and does not directly affect non-statutory powers. At the time of the decision, the HRA had been legislated and was just to enter into force; the rule was about to change, as acknowledged in the decision and explained below. R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, 131.

126 These include the making of a declaration of incompatibility (section 4), after which several results are possible, from government inaction to executive amendment of the incompatible provision by an order (section 10), and an authorization to liberally interpret statutes, to a certain extent against their text, to realign them as confirming with the protection of the rights under the ECHR (section 3).

127 eg art 8.2, Right to Respect for Private and Family Life, provides that ‘[t]here shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law …’ (italics added).

128 Silver v United Kingdom (1983) 5 EHRR 347, 371.

129 Sunday Times v United Kingdom (1979) 2 EHRR 245, 271 (‘the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct’).

130 Sunday Times, ibid; Groppera Radio v Switzerland (1990) 12 EHRR 321

131 Text to n 103.

132 A Watson, Legal Transplants: An Approach to Comparative Law (1974). A large number of synonyms, such as ‘borrowing’ and ‘cross-fertilization’, are interchangeably used; for recent lists see eg V Perju, ‘Constitutional Transplants, Borrowing, and Migration’ in Oxford Handbook (n 111) 1304, 1306; Chen-Wishart, M, ‘Legal Transplant and Undue Influence: Lost in Translation or a Working Misunderstanding?’ (2013) ICLQ 1, 34Google Scholar. The term ‘foreign law’ connotes all legal sources that originate beyond the national borders and are not directly or indirectly applicable; this excludes reliance on European law in EU countries and international law when considered binding.

133 For the terms see Foster, N, ‘Transmigration and Transferability of Commercial Law in a Globalized World’ in Harding, A and Örücü, E (eds), Comparative Law in the 21st Century (Kluwer Law 2002) 55Google Scholar.

134 Watson, Legal Transplants (n 132). See also Ewald, W, Comparative Jurisprudence (II): The Logic of Legal Transplants (1995) 43 AmJCompL 489Google Scholar.

135 Legrand, P, ‘What “Legal Transplants”’? in Nelken, D and Feest, J (eds), Adapting Legal Cultures (Hart 2001) 55, 58, 59, 61Google Scholar; Legrand, P, ‘European Legal Systems Are Not Converging’ (1996) 45 ICLQ 52CrossRefGoogle Scholar. See also Kahn-Freund, O, ‘On Uses and Misuses of Comparative Law’ (1974) 37 MLR 1CrossRefGoogle Scholar. For recent overviews see Cohn, M, ‘Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality Review of the Administration in the United Kingdom’ (2010) 58 AJCL 583CrossRefGoogle Scholar; Chen-Wishart (n 132) 1–4.

136 For the exception, see Groppi, T and Ponthoreau, MC (eds), The Use of Foreign Precedents by Constitutional Judges (Hart 2013)Google Scholar.

137 For examples of the rich literature see Ackerman, B, ‘The Rise of World Constitutionalism’ (1997) 83 VaLRev 771Google Scholar; Stone Sweet, A, Governing with Judges: Constitutional Politics in Europe (OUP 2000)CrossRefGoogle Scholar; Hirschl, R, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press 2004)Google Scholar; Choudhry, S (ed), The Migration of Constitutional Ideas (CUP 2006)Google Scholar; Jackson, V, Constitutional Engagement in a Transnational Era (OUP 2010)Google Scholar; Law, DS and Versteeg, M, ‘The Evolution and Ideology of Global Constitutionalism’ (2011) 99 CLR 1163Google Scholar; Frankenberg Order from Transfer (n 108).

138 See eg Lijphart, A, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries (Yale University Press 1984) 6874CrossRefGoogle Scholar; Linz, JJ, ‘Presidential or Parliamentary Democracy: Does it Make a Difference?’ in Linz, JJ and Valenzuela, A (eds), The Failure of Presidential Democracy (Johns Hopkins University Press 1994) vol 2, 3, 6Google Scholar. But see Foley, M, The British Presidency (Manchester University Press 2000)Google Scholar; Allen, G, The Last Prime Minister: Being Honest about the U.K. Presidency (Politico 2002)Google Scholar; Albert, R, ‘The Fusion of Presidentialism and Parliamentarism’ (2009) 57 AJCL 531CrossRefGoogle Scholar.

139 One notable edited comparison is Craig, P and Tomkins, A (eds), The Executive and Public Law (OUP 2006)Google Scholar (surveying 11 systems).

140 On ‘implicit’ reliance see Groppi and Ponthoreau (n 136) 6–7, 426–8.

141 Text to n 48.

142 Text to n 88.

143 Text to n 87.

144 Other types of evidence of transplantation may be useful for this assessment, for example explanatory notes appended to policy decisions or protocols of parliamentary proceedings. Space constraints do not permit me to expand the analysis in these directions.

145 Groppi and Ponthoreau (n 136). See generally ibid 416. In nine of the eleven analyzed systems, the majority of studied decisions that cited foreign sources were concerned with human rights issues rather than institutional issues, inter alia 100% of such decisions in Russia, 97% in Austria, 78% in Germany, 65% in Israel, and 55% in Japan. Ibid 368, 222, 245, 144, 283–89, respectively. Data on this pattern in India was unavailable, and Australia was excluded due to the absence of a written bill of rights.

146 The Supreme Court Justices' conflicting positions are best exemplified in the opinions of Justices Kennedy and Scalia in Lawrence v Texas, 539 US 558 (2003), 572–73, 576–77 (per Justice Kennedy), 598 (per Justice Scalia) (2003), and in Roper v Simmons, 543 US 551 (2005), 575–78 (per Justice Kennedy), 622–28 (per Justice Scalia). For recent contributions that also survey the field see Jackson (n 137); M Rosenfeld, ‘Comparative Constitutional Analysis in United States Adjudication and Scholarship’ in Oxford Handbook (n 111) 38; G Halmai, ‘The Use of Foreign Law in Constitutional Interpretation’ in Oxford Handbook (n 111) 1328.

147 Manz, WH, ‘Citations in Supreme Court Opinions and Briefs: A Comparative Study’ (2002) 94 LawLibrJ 268, 270Google Scholar (0.2 per cent of the decisions delivered in 1996); A Sperti, ‘United States of America: First Cautious Attempts of Judicial Use of Foreign Precedents in the Supreme Court Jurisprudence’ in Groppi and Ponthoreau (n 136) 393. For empirical studies that have not isolated foreign sources from domestic ones see Landes, WM and Posner, RA, ‘Legal Precedent: A Theoretical and Empirical Analysis’ (1976) 19 L&Econ 249Google Scholar; Cross, FB et al. , ‘Citations in the Supreme Court: An Empirical Study of Their Use and Significance’ (2010) UIllLRev 490Google Scholar (2010).

148 For my purposes, the key decisions are Midwest Oil (n 18); Curtiss-Wright (n 84), Youngstown (n 69); Dames and Moore (n 83) and Hamdan (n 62). The sole citation of a foreign source in Youngstown is Justice Jackson's, who refers to William Holdsworth's comment on the powers of legislation by proclamation when in the hands of the Tudors. Youngstown (n 69) 876, n 16. In Hamdan, Justice Steven's, and other Justices' reference to the Nuremberg trials is part of the judicial reasoning about the nature of conspiracy as a war crime. Hamdan (n 62), 2784–5.

149 The first study, focusing on judicial output between 1948 and 1994, shows that 14 per cent of all case citations in public law decisions (constitutional and administrative) were foreign. Shachar, Y, Harris, R and Gross, M, ‘Citation Practices of Israel's Supreme Court: Quantitative Analysis’ (1996) 27 Mishpatim 119, 208Google Scholar. The second, assessing decisions delivered between 1994 and 2010, distinguishes between constitutional issues and other public law issues; the average of constitutional cases citing foreign precedent is high, no less than 28 per cent. S Navot, ‘Israel: Creating a Constitution—The Use of Foreign Precedents by the Supreme Court’ (1994–2010) in Groppi and Pontoreau (n 136), 129. ‘Constitutional cases’ were narrowly defined, excluding for example local elections and extradition; in these and other contexts, such as criminal procedure and emergency powers, only cases found to be ‘essentially constitutional’ were included. ibid, 140–1.

150 Kiryat-Gat (n 97) 844.

151 For example, in Hilou (n 95), a case concerned with the legitimacy of seizure of lands in the occupied territories, the court identified section 29 as the domestic authorization for the deployment of the military in the territories; this part of the decision contains no foreign references. No less than seven decisions, one British and the others from the US, are cited to support the principles of judicial deference and justiciability. The British cited decision, Chandler v DPP [1964] AC 763, was originally linked with the prerogative, but this aspect was not noted.

152 Cram, I, ‘Resort to Foreign Constitutional Norms in Domestic Human Rights Jurisprudence with Reference to Terrorism Cases68 CLJ 118 (2009)CrossRefGoogle Scholar.

153 The earliest, Burmah Oil (n 27) contains extensive analysis of foreign law, mainly from the US. Twenty of its 75 pages cite foreign law, ten of which are fully dedicated to analyses of American precedents, but the focus is limited to one question: the right of property owners for compensation of property destroyed during war. The analysis contains no reference to questions of legitimacy or authorization. A similar pattern exists in Bancoult 2 (n 5) (comparison of colonial and ex-colonial constitutions).

154 For the US decisions see n 148; the UK decisions are De Keyser (n 40), GCHQ (n 44) and Bancoult 2 (n 5).

155 Westlaw search, 4 May 2014.

156 Dames and Moore (n 83), cited in Dallal v Bank Mellat [1986] 1 QB 441 (application for recognition of foreign arbitral tribunal; US decision cited as the basis for the recognition of the agreement between Iran and the US). Hamdan was cited five times in cases involving applicants held by US authorities under their anti-terrorism law; none of the decisions cites Hamdan as support for the challenge of domestic action. Westlaw UK search, 4 May 2014.

157 In comparison, the Israel Supreme Court has cited Brown v Board of Education and Baker v Carr, as support to decisions on non-discrimination and justiciability, 12 and 11 times, respectively. Nevo search, 4 May 2014.

158 In Kiryat Gat (n 97) 844, Youngstown was briefly cited to support the court's adoption of the residuality rule. No British decision was cited in this context, and the textual support for this rule was more decisive.

159 Indeed, the transborder nature of human-rights law cannot be contested, and can promote transplantation for two contradicting reasons. In systems intent on protecting transnational human rights rules, reliance on foreign law signals the system's participation in the global order; in systems that are reticent to fully embrace these rules, but are obligated to do so under their international commitment, overt transplantation can constitute an internally-directed message that the adoption of these rules is entirely the result of foreign pressure.

160 Saunders, C, ‘Comparative Method and Constitutional Law’ in Sung Nak-in, (ed), Constitutionalism and Constitutional Adjudication in Asia (Seoul National University 2005) 575Google Scholar.

161 Decided, respectively, in Midwest Oil (n 18), Dames and Moore (n 83), and cases cited at n 70, and Hamdan (n 62).

162 Groppi and Ponthoreau (n 136).

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