Pro-Israel Group Challenges Constitutionality of West Bank Sanctions

Filing a complaint in the U.S. District Court for the Northern District of Texas, the group claimed the sanctions regime infringes on Jewish citizens' First Amendment rights to free speech and free exercise of religion and their Fifth Amendment rights to equal protection and due process rights.

In addition, Texans for Israel said the EO cuts against the "sincerely held religious beliefs of American citizens, violating the Religious Freedom Restoration Act," and violates the Administrative Procedure Act due to the Biden administration's alleged limited fact-finding underpinning the order.

Signed in February, the EO allows the U.S. to sanction "foreign persons" responsible for an uptick in violence in the West Bank (see 2402010053). The order tells the Treasury and State departments to sanction any party directing or taking part in actions that threaten violence, intimidate civilians or engage in terrorist activity in the West Bank.

Texans for Israel said it isn't challenging the fact that the EO allows for sanctions on acts of violence against Palestinian citizens. It's instead challenging the order's directive to sanction those responsible for harming the "peace, security, or stability of the West Bank," the advocacy group said. The complaint said this broad language cuts against the First Amendment because the administration considers the "two-state solution" essential to peace in the West Bank.

The brief suggests that a party can be sanctioned for supporting a two-state solution via visiting holy sites in the West Bank or expressing views opposed to a two-state solution. The four members of Texans for Israel repeatedly make trips to the West Bank and publicly advocate against the two-state solution, which they say potentially subjects them to being added to the new sanctions regime.

As a result, the EO "penalizes political and religious speech protected by the First Amendment," the complaint said. The EO penalizes only one "category of speech based upon its content (i.e., support for Jewish settlers in Judea and Samaria) and imposing sanctions upon only one particular category of people," pointing to the fact that only Jewish parties have been sanctioned under the EO, the brief said. Judea and Samaria are historical names for the West Bank.

Texans for Israel added that the EO commits an equal-protection violation by allowing the executive to sanction parties "simply because they espouse a position contrary to the Administration’s Middle East policy." The brief said the EO violates the Fifth Amendment's due process clause due to the vagueness of the authority allowing sanctions on those that "threaten the peace, security, or stability of the West Bank." Actions that fit under this description "are entirely within the eye of the beholder," the brief said.

The group also said the EO doesn't have an "adequate statutory basis." For instance, the EO is rooted in an uptick in "settler violence," which is violence committed by Jews against Palestinian citizens in the West Bank. Texans for Israel said instances of settler violence "are rare in comparison to documented instances of violence inflicted against such Jewish settlers." Instead of conducting fact-finding, the administration collected quotes from anti-Israel groups, the brief alleged.

The complaint added that the EO's scope is "unprecedented, as it targets beliefs held by many, if not most, Americans." In addition, the way in which the sanctions are imposed "makes it dangerous and difficult for Americans to engage in any kind of First Amendment activity with Jewish persons in the West Bank," the brief said.