US Urges Texas Court to Dismiss Constitutionality Challenge to West Bank Sanctions

The U.S. on Oct. 15 urged the U.S. District Court for the Northern District of Texas to dismiss a lawsuit from nonprofit advocacy group Texas for Israel and its members challenging the constitutionality of the Biden administration's West Bank-related sanctions authority.

The government claimed that none of the plaintiffs had standing to challenge the executive order that the authority was based on. It also said the case is "not justiciable" by the judiciary because it concerns political questions and the plaintiffs failed to state a claim on which relief can be granted.

The government first said Texans for Israel and Texas resident Michael Isley lacked standing by failing to plead a "non-speculative injury." The pair aren't sanctioned, nor are they threatened with sanctions, but only fear that they will be subject to sanctions through their support of parties sanctioned under the EO (see 2408190018). The government said this "attenuated, hypothetical chain is insufficient to demonstrate standing."

Only foreign parties can be sanctioned, and Isley is a U.S. citizen, the brief noted. In addition, Isley doesn't allege that the parties he supports are on the sanctions list but instead claims that individuals he supports engage in views and activities that could get them sanctioned. His theory is that his continued support of these individuals after being sanctioned could get him sanctioned. This "theory is too speculative" to grant him standing, the government said.

Isley and the other plaintiffs said they have standing because the EO "chilled" their activities. The government responded that "standing cannot be fabricated from a self-inflicted injury," adding that risk of injury under this theory is similarly "entirely speculative and cannot support standing." The idea that the plaintiffs are self-censoring their speech to avoid sanctions risk "is particularly far-fetched here," because the EO doesn't apply to pure speech or advocacy.

The plaintiffs also said they were blocked from inviting sanctioned parties to the U.S., although they don't even identify "any blocked person whom they wish to invite to the United States," the brief said.

The government said the other individual plaintiffs also failed to establish standing. Dual U.S.-Israeli citizen Ari Abramowitz said his ability to finance his farm in the West Bank is impaired, but the U.S. said Abramowitz doesn't support this claim "with factual allegations explaining how such financing and development is impaired."

Yosef Ben Chaim, whose wife is sanctioned, is the only party to claim a specific connection to a sanctioned party, since his wife is sanctioned under the EO. Ben Chaim claimed injury because he can't finance day-to-day transactions and can't receive a salary from his wife's business. The government responded that he hasn't submitted a license request to the Office of Foreign Assets Control and has failed to provide details on "how these injuries occurred."

The government also said Israeli nonprofit Regavim and its director, dual U.S.-Israeli citizen Meir Deutsch, lack standing. The pair alleged that Regavim supports sanctioned entity Tzav 9 and could be sanctioned themselves under the EO for this support. The government said Deutsch and Regavim don't challenge the designation of Tzav 9 itself, adding that "any particular hypothetical future designations based on national security and foreign policy considerations are too speculative to support standing."

Should its effort to deny the parties standing fail, the U.S. filed a concurrent motion to remove the case from the Texas district court. The government said if its dismissal bid is rejected, the case should be sent to the U.S. District Court for the District of Columbia.

The government also provided various reasons that the matter isn't justiciable, arguing that the case weighs on sensitive issues of foreign policy toward the Israeli-Palestinian conflict. It's "well-settled that the President’s decision to declare a national emergency with respect to the situation in the West Bank presents an unreviewable political question," the brief said. The U.S. added that there are "no judicially manageable standards" to review the listing criteria and that the case can't be decided without upsetting balance of power concerns.

The government went through each of the plaintiffs' claims and noted why they failed to state a claim for which relief could be granted. For instance, the individuals and Texans for Israel made a variety of claims that the EO violates their First Amendment free speech rights, but the U.S. said courts have "repeatedly rejected" free speech challenges to sanctions, "even where the relevant prohibition did encompass expressive conduct." And if the EO bars money transfers to designated parties, those restrictions don't violate the First Amendment because "such transactions are generally conduct, not protected speech.”

The U.S. also claimed that the plaintiffs' claim that the EO violates the Religious Freedom Restoration Act falls short, adding that the sanctions don't violate their free exercise of religion because "the right of free exercise does not relieve an individual of the obligation to comply" with a neutral law of general applicability, the government said.