13 Jul Guiora on Judicial Review and the Executive
Amos Guiora has a new essay at Jurist about judicial review and decision-making in the executive branch. It begins:
Judicial review is judicial review. It is all or nothing. Sitting as the High Court of Justice, the Israeli Supreme Court proved that once again this week. The facts of Ashraf Abu Rahma vs. The Judge Advocate General (HCJ7195/08) are simple: the Israel Defense Forces’ Judge Advocate General decided to order a disciplinary hearing rather than a criminal trial for a brigade soldier who fired rubber bullets at a handcuffed Palestinian. In response to this judgment, human rights groups filed a petition to the High Court arguing that the decision was unreasonable and that the brigade commander must be brought before a court martial.
The Court held that the JAG’s decision was not reasonable, thus clearly emphasizing a powerful lesson: the executive cannot operate outside the boundaries of the law, especially when it involves the use of military force. This lesson should reverberate loud and clear in the US courts, where the judiciary should end its near automatic deference to executive determinations regarding the use and application of force.
[Empasis added.]
Later, he writes:
Nothing is more dangerous to a democracy than an ‘unfettered executive’. Justice Jackson was both prescient and correct in Youngstown Sheet and Tube Co. v. Sawyer. His concern was also timeless. This principle must be applied across the board. Encouraging judicial review of some executive branches but not others will do no more than ensure unequal justice under law. The JAG’s decision must be subject to review in the same vein as that of any other executive decision maker. The essence of active judicial review is to protect the unprotected and to ensure that the executive acts within reasonable boundaries as broadly defined.
By ruling that the JAG did not act within these boundaries, the Court is sending a loud and clear message: the executive is subject to strict judicial review and it cannot hide behind the cloak of executive decision making. That powerful and compelling message should be adopted by the US Supreme Court, particularly when striking a balance between the legitimate rights of the individual and the equally legitimate national security rights of the State. The free pass that the Supreme Court has historically granted the executive in national security cases (Korematsu v. United States being the poster child) has, in the long-run, harmed the individual and the state alike.
Check it out.
Isn’t there a fairly strong difference between the review of a particular decision under the applicable framework, and review of the applicable framework itself, even allowing for the fact that the framework itself is often substantially determined by the judiciary?
Does anyone with experience with the Israeli Supreme Court know whether the outcome would have been likely to differ if there was an executive policy that,eg, the use of rubber bullets was only ever a disciplinary matter?
This is the most asinine analysis I have read in a long time. The Youngstown Tube decisions cannot possibly be understood w.o. considering the Japanese internment cases which took place only a few years prior and were ok’ed by substantially the same court which stayed Truman’s hand and were rulings which still stand as “good law,” i.e., the internments are still found to have been within the ambit of the President’s constitutional authority–a direct contradiction to the findings by essentially the same court in Youngstown. Reason for the difference in outcomes? Very simple: The Zeitgeist of the times. WWII saw the very existence og our nation threatened. NO COURT was about to stay ANY PRESIDENT’s hand under those circumstances for the very same reasons that NO Steel-worker would have EVER or even DID contemplate, let alone ACTUALLY strike to impair war production under those conditions. In Korea, by contrast, this nation’s very existence was not at stake. The ICBM had not yet been invented and N. Korea had no Navy. Therefore the steel-workers felt it safe to strike. Like-wise the court felt it equally safe to stay the President’s hand without the risk of being blamed for the destruction of… Read more »