How Should a Court Deal with a Primary Question That the Legislature Seeks to Avoid?

Legislative avoidance of principled decisions on substantive questions by transferring the decision-making task to the executive branch, is a frequent scenario. The legislature does this by way of either express or hidden delegation, i.e., by using ambiguous wording that on its face only requires interpretation but which in fact requires a substantive decision on the matter at stake. The Israeli legislature resorted to the hidden delegation tactic to avoid the adoption of a substantive decision in the dispute over the question of who is a Jew--a dispute that has divided Israeli society and World Jewry (especially its U.S. component) since the establishment of the state of Israel. This Article presents a complex analysis of the Israeli Supreme Court's treatment of this hidden delegation.

The aim of the Article is to enhance the U.S. reader's understanding of the various options available to a court while tackling the fundamental question of the nondelegation doctrine and to offer a few new insights as to how this question should be resolved.