The U.S. and Israel Face Constitutional Crises

Both the United States and Israel are currently facing constitutional crises due to attempts by their leaders to remove obstacles to autocratic rule. While the specifics of the events in each country are somewhat different, there is a lot of commonality. In both countries, their current leaders ran for office while facing criminal charges. For both cult leader, convicted felon, and failed President Donald Trump and Israeli Prime Minister Benjamin Netanyahu, winning their current offices was a means of staying out of prison. Both Trump and Netanyahu are currently ignoring decisions by their country's supreme courts that would constrain their authority. It is not clear that the political systems of either the United States or Israel are strong enough to prevent a slide into complete autocracy. In both countries, the rule of law is at stake. As a result, one country that has traditionally touted itself as the "world's leading democracy" and another routinely praised as the "only democracy in the Middle East" may soon lose the right to their claims.

The situation in the United States is fairly easy to explain. Trump won the presidency, and Republicans won majorities in both the House of Representatives and the Senate. In both chambers, Republicans were prepared to act as simple rubber stamps for whatever Trump wanted. Even more importantly, they were prepared to stand on the sidelines while Trump seized Congress's authority and ruled through executive actions rather than legislation. The one obstacle to Trump has been the Judicial Branch. Trump has faced countless defeats in the courts. Rather than accept the constraints on his power, however, Trump has started simply ignoring court decisions. The most prominent example involves the case of Kilmar Abrego Garcia, a migrant from El Salvador who was illegally renditioned to the notorious Terrorism Confinement Center (CECOT) in El Salvador. The U.S. Supreme Court ruled in a stunning 9-0 decision that the Trump administration must facilitate Abrego Garcia's return to the U.S. The reaction of the Trump Administration has been to ignore the decision completely. Similarly, after a federal judge in Boston ruled that a group of migrants could not be deported to South Sudan, the Trump administration removed them anyway. The judge subsequently ruled that the action had "unquestionably" violated his order. Yet the judge took no punitive action. The Trump administration is quickly learning that it can ignore the judiciary without consequence. As a result, Trump is free to rule as an authoritarian with no real restraint on his power.

In Israel, things are a bit more complicated. The constitutional crisis that the country faces goes back to a 2019 criminal indictment of Netanyahu for breach of trust, accepting bribes, and fraud. At the time, Netanyahu was serving as Prime Minister, and then-Attorney General Avichai Mandelblit issued a legal opinion that Netanyahu's position created a conflict of interest because it gave Netanyahu influence over issues that could impact his trial. Mandelblit then proposed a conflict of interest agreement that would prevent Netanyahu from being involved in judicial appointments. Netanyahu refused the agreement, but Mandelblit imposed it upon him anyway, and the Supreme Court upheld that decision. Nevertheless, Netanyahu soon violated the agreement.

While serving as Prime Minister, Netanyahu has been forced to attend occasional court sessions for his trial. He continues to risk the possibility of conviction. Showing that Mandelblit's concerns about conflicts of interest were justified, Netanyahu challenged Israel's so-called reasonableness law, which gives the Israeli Supreme Court the right to declare government actions unreasonable. More recently, Netanyahu's coalition passed legislation changing the composition of the Judicial Selection Committee, which could allow Netanyahu to stack the Supreme Court and eliminate the legal threats that he faces. In order to wage his battle with the judiciary, Netanyahu has been forced to rely on far-right coalition partners, appointing two literal terrorists to cabinet positions. Because the extremist coalition members could leave the government at any moment, scuttling Netanyahu's attempts to remake the judiciary and, potentially, sending him to jail, the extremists have significant ability to call the shots and set government policy.

It can be argued — and, indeed, I have argued — that the current war in Gaza is a result of Netanyahu's legal problems and his reliance on the far-right. In 2023, the extremist members of the cabinet were obsessed with the West Bank and constantly incited security incidents with the Palestinians living under occupation. As a result, the bulk of Israel's military forces were moved to the West Bank to help keep things under control. This created a security vacuum along Israel's border with Gaza. At the same time, the streets of Israeli cities were full of protesters enraged by Netanyahu's attacks on the judiciary and his moves toward dictatorship. As part of those protests, many Israeli reservists announced their refusal to serve. With Israel's military diverted to the West Bank and its population busy protesting, Hamas took the opportunity to launch an attack.

In a normal world, a security failure on the scale of October 7 would result in most leaders being forced to resign. But for Netanyahu, it has been a blessing. The war immediately quelled the protests (though they have since restarted), and it provided him with an excuse to delay his trial (which has also restarted). Netanyahu is able to accuse his critics of aiding Hamas. The war has placed Netanyahu in the position of being forced to choose between his own freedom and that of the hostages being held by Hamas. Netanyahu has repeatedly chosen his own. Netanyahu's incentives to continue the war are stronger than his interest in freeing his own citizens.

In the midst of all of this, Israel's security service, the Shin Bet, began an investigation into the leak of highly classified documents to The Jewish Chronicle and Bild. Shin Bet discovered that the documents had been modified in a manner that supported Netanyahu politically. Subsequently, Shin Bet traced the leak to officials close to Netanyahu. This was, of course, a major scandal. But things didn't stop there. Shin Bet soon discovered that several of Netanyahu's closest associates, including some involved in the leak scandal, had been receiving payments from Qatar. For members of the Prime Minister's staff to be on a foreign country's payroll is bad enough, but at the same time, Netanyahu had been criticizing Qatar for funding Hamas and hosting Hamas officials in Doha. Arguably, Netanyahu's staff were receiving payments from an enemy nation during a time of war.

Netanyahu's reaction was to attempt to fire Shin Bet chief Ronen Bar. However, Netanyahu does not have that legal authority, and this soon became another issue creating conflict between Netanyahu, Israel's Attorney General, and the Supreme Court. There have been a series of moves and countermoves between the various parties. Netanyahu has said that he fired Bar, and judicial authorities have said that is not legal. Netanyahu has said that he is searching for a replacement, and the Supreme Court has said that he cannot nominate a replacement. Bar said that he would resign, but then changed his mind and will now stay and fight his removal. Yesterday, things reached a boiling point. Netanyahu announced that he had appointed Israel Defense Forces (IDF) General David Zini to lead Shin Bet. This was, of course, in direct contravention to the Supreme Court ruling. The IDF then announced that IDF Chief of Staff Gen. Eyal Zamir had fired Zini for "engaging in subterfuge with the prime minister". Later, the IDF clarified that Zini had retired. Regardless, Israel is currently in the position of having competing heads of its intelligence service and a Prime Minister who is openly defying the Supreme Court.

In both the United States and Israel, there have been full-blown constitutional crises for some time. In both countries, there is a reluctance to admit reality. The ramifications of such an admission are too much for many to contemplate, and apparently, most feel that it is better to bury their heads in the sand. In the U.S., Democrats once warned that Trump should not violate court rulings. When Trump started ignoring lower court rulings, Senate Minority Leader Chuck Schumer said that if Trump ignored the Supreme Court, that would be a problem. Now, Trump is openly defying a 9-0 Supreme Court decision, and Schumer is silent. Democratic Senators just voted in favor of a stablecoin bill that will enable increased corruption by Trump. Democrats have either resigned themselves to Trump's dictatorship or are living in deep denial. In Israel, there seems to be more of a willingness to put up a fight. The Supreme Court and the Attorney General are not backing down. Neither is Bar. Highly respected political commentators in Israel are openly calling Netanyahu's actions a coup. The Supreme Court may well decide that Netanyahu is unfit for office. A military coup or a civil war are not out of the question, though probably remote. The most likely outcome is that Netanyahu remains in power with unchecked authority. Elections are due by November of this year. If Netanyahu remains in power, it would not be surprising if he decrees that they be postponed due to the war, which he can ensure is still ongoing.

In the United States, the House of Representatives has just approved the reconciliation bill that contains measures that strengthen Trump's autocratic powers. For instance, one measure prevents courts from sanctioning government officials for contempt. Therefore, when the government ignores court decisions, courts can find officials in contempt, but can't do anything about it. This will make the judiciary branch irrelevant as a restraint on Trump. Given the previous Supreme Court decision that Trump is immune from anything connected to official duties, there is little chance that Trump will moderate his behavior. To the contrary, the opposite is likely. In the U.S., democracy appears to be going out like a lamb.