—Ittai Bar-Siman-Tov, Assistant Professor, Bar Ilan University Faculty of Law
A controversial tax reform is enacted in the middle of the night. It is enacted in a massive hundreds-of-pages omnibus bill, which is rammed through the legislative process in a highly accelerated pace. The legislators receive the final version of the bill in the very last minute, and protest that they have no opportunity to read the bill and know what they are voting upon. The majority’s legislative leaders, however, are unimpressed, and the law is eventually passed on strict party discipline.
To most readers, especially fans of this viral video, this description surely sounds like the recent legislative process of Donald Trump’s Tax Bill in the US Senate. Israeli readers, however, will recognize the very same description as depicting the enactment of Third Apartment Tax in the Israeli Parliament.
The great similarities between these two cases demonstrate that laments about a broken legislative process, so often focused on the US Congress and its Republican majority, are in fact present in many jurisdictions around the world.
Indeed, these two cases demonstrate recurring criticisms, across jurisdictions, about excessive use of unorthodox legislative procedures that short-cut the normal legislative process, such as fast-track and omnibus legislation. Common criticisms include the demise of deliberation and deliberative norms; exclusion of minority or opposition parties from the process; the decline of regular order and frequent deviations from the rules governing the legislative process; inadequate preparation of bills; poor drafting; insufficient time for proper consideration of bills and inadequate parliamentary deliberation and scrutiny; and, generally, hasty and reckless lawmaking.
The common maladies in legislature’s enactment processes, evidenced in the enactment of Trump’s Tax Bill, the Israeli Third Apartment Tax and many other cases around the world, raise the question of whether courts could (and should) play a role in regulating the legislative process, and help restrain excessive uses of expedited omnibus legislation.
This question recently received a unique and novel answer by the Israeli Supreme Court. In HCJ 10042/16 Quantinsky v. the Israeli Knesset (2017) the Court invalidated the “Third Apartment Tax” provisions in the Arrangements Law due to its deficient legislative process. This was the first case in Israel that invalidated any law due to defects in its legislative process. This was also the first case in the world to invalidate an omnibus law due (solely) to the problematic process characterizing the hurried enactment of omnibus legislation.
The reason for invalidating the law was that the enactment process was so hurried that the members of parliament were not given an adequate opportunity to meaningfully participate in the legislative process, to properly deliberate over the law and form an informed opinion before voting. That in itself was sufficient reason for the Court to invalidate the law, despite the fact that the law was enacted without violating any of the formal procedural rules governing the legislative process and that the Court rejected arguments that the law’s content infringes on constitutional rights! To the best of my knowledge, this is the first precedent in the world of invalidating the law solely for this reason (as opposed to semiprocedural review, in which a faulty process and insufficient deliberation are just an additional consideration for invalidating a law whose content infringes upon the constitution).
So how did the Court reach this unorthodox and controversial decision (which was harshly criticized by the dissenting Justice)? Well, it runs out that this “unprecedented” decision actually relied on an earlier landmark precedent: HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel (2004). That case criticized omnibus legislation, and developed the novel legal framework that would allow judicial review of statutes enacted via this legislative process, even in the absence of formal rules limiting the legislature’s power to use omnibus legislation. In Poultry Farmers, the Court first developed the idea that the legislative process is subject not only to formal rules enumerated in constitutions or internal parliamentary rules, but also to unwritten fundamental democratic principles. Among these principles, the Court developed the “principle of participation”, which guarantees the right of each parliament member to participate in the legislative process. This right of participation, said the Court, is not limited to the ability of legislators to be physically present in the plenum and vote. Rather, to have real and effective meaning, this right should also entail at least a minimal ability to know what the legislation is about. The Poultry Farmers Court then went on to hold that the length and complexity of omnibus laws, coupled by their highly accelerated legislative process, may indeed infringe upon the principle of participation.
Yet, realizing the path-breaking (and activist) nature of its ruling, the Poultry Farmers Court reassured the Knesset that it will use its newly created power only in rare and extreme circumstances. The Court added that it is difficult to imagine what will be the extreme cases, if at all, in which the scope of the issues in the draft law will be so great, and the legislative process will be so rushed, that there will be a basis for holding that the Knesset members have been denied any practical possibility of knowing about what they are voting. Only in such extreme and rare cases, which we hope are not to be expected in our parliamentary reality, there will be no alternative to the conclusion that the Knesset members had de facto no practical possibility of formulating their position with regard to the draft law, and that we are concerned with a sever and substantial violation of the principle of participation in the legislative process.
And, indeed, in the 13 years since that decision, the Court routinely denied procedural challenges against omnibus laws, finding that none of the cases satisfied this high threshold. As CJ Naor noted in the recent Quantinsky case, this judicial restraint may have sent the message that “anything goes.” Hence, in Quantinsky the Court held that enough is enough, and for the first time employed the theoretical power developed in Poultry Farmers and turned it into reality.
While it seems unlikely that the American Court, known for its resistance to judicial review of the legislative process, will follow the Israeli example, examining this unique solution should be of great interest for every country dealing with omnibus legislation.
Suggested Citation: Ittai Bar-Siman-Tov, In Wake of Controversial Enactment Process of Trump’s Tax Bill, Israeli SC Offers a Novel Approach to Regulating Omnibus Legislation, Int’l J. Const. L. Blog, Dec. 13, 2017, at: http://www.iconnectblog.com/2017/12/in-wake-of-controversial-enactment-process-of-trumps-tax-bill-israeli-sc-offers-a-novel-approach-to-regulating-omnibus-legislation
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