KNESSET, COURT AND SUNSET PROVISIONS

Jacob Remes pointed out this post by Steven Weiss on oral argument in an Israeli case concerning a recent law banning Palestinians from obtaining Israeli citizenship through marriage. The Head Heeb writes:

During the argument, Chief Justice Aharon Barak hinted at a compromise resolution under which the court would refrain from striking down the law but prohibit the Knesset from re-enacting it after its expiration date.

and Steven Weiss wants to know:

Without getting into the politics here, doesn't this kind of legal horse-trading sound very contradictory to an appropriate idea of separation of powers? Is there precedent for a move like this, in Israel or elsewhere?

I have never heard of a court telling the legislature that it must let a law expire. Politically, it makes a great deal of sense for the Court to attempt to do something like this, of course; as one of the commenters at Mr. Weiss's site notes, this action would allow the Court to attack the law without expending as much political capital as would be necessary for a clear ruling striking it down. Still, I can't think of any examples of U.S. courts telling legislatures that they must allow a law to expire. I can imagine situations in which a court sends a signal that the legislature is getting close to the point where the court would find a law unacceptable; the recent Japanese election case (see here) comes to mind. In some senses all judicial review is about telling the legislature that certain forms of future behavior would be unacceptable. But for a court to tell the legislature straight out that it should let a law expire or face having it struck down is a bit odd. Perhaps if sunset provisions were more common (or if I knew about more cases in which sunset provisions were employed), I could point to examples to analogous behavior. A few things mitigate against courts acting in such a way in the U.S., however. The appeals process takes a long time, so sunset provisions might run out before the law had expired. In addition, my guess would be that appellate courts, or perhaps especially the Supreme Court, would be happy to stay out of high-profile disputes analogous to the Israeli marriage law if the disputes have a chance of solving themselves. A strong ruling limiting or disparaging the law could have the function of contributing to the conversation about the law, and I suppose that the U.S. Supreme Court could conceive of its role in such a fashion, but lower court judges are probably more likely to try that kind of thing.

Very interesting! I'll have to think some more about this!