The Palestine exception is a tale of two US court decisions


Contrasting verdicts in two politically charged federal court cases raise questions about the US judiciary’s objectivity on matters relating to Israel-Palestine.
Earlier this year, two lawsuits against United States President Joe Biden and his administration relating to the conflict in Israel-Palestine saw their day in court.
Just a few days later, however, another court case against the Biden administration relating to the same conflict and evidently concerning “non-justiciable political questions” received a completely different verdict.
The lawsuit, dubbed Jackson et al v Biden et al, claims that the TFA bars the US government from providing economic aid that would directly benefit the PA until it stops paying stipends.
Ignoring the case’s obvious infringement of the “political question doctrine”, he allowed the lawsuit to move forward.
The political question doctrine, a cornerstone of constitutional law, restricts courts from addressing certain constitutional matters, even when other legal criteria like standing, ripeness, and mootness are met.
A finding that a matter qualifies as a political question divests courts of jurisdiction, meaning they lack the power to rule on the matter.
Judge White rightly recognised this in the Defense for Children case, but Judge Kacsmaryk chose to ignore it in Jackson et al v Biden et al.
The political question doctrine remains a subject of debate among jurists, particularly regarding its origin, purpose, and application.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.

Questions concerning the US judiciary’s impartiality on Israel-Palestine issues are raised by the divergent decisions in two highly politicized federal court cases.

A couple of lawsuits concerning the conflict between Israel and Palestine against US President Joe Biden and his administration were heard in court earlier this year.

In accordance with their obligations under the 1948 Genocide Convention, President Biden, his Secretary of State Antony Blinken, and Defense Secretary Lloyd Austin were accused of having “actively abetted” the state of Israel to commit genocide in the first case, Defense for Children International – Palestine v. Biden (“Defense for Children”). The lawsuit requested that the administration be ordered by a judge to stop Israel’s attacks on Gaza, to stop providing military assistance, and to stop opposing a ceasefire at the UN Security Council.

The United States gives Israel $3.08 billion in military aid every year, and Biden is currently asking the Senate for permission to send $14.01 billion more later this year.

US District Judge Jeffrey White of the Northern District of California cited the International Court of Justice’s preliminary ruling, which ended the previous week in a case brought by South Africa against Israel and found that Israel’s current actions in Gaza could reasonably be considered genocide, with approval in a written decision dated January 31. The ruling ordered Israel to cease killing and injuring Palestinians.

Judge White wrote, “The undisputed evidence before this Court comports with the finding of the ICJ and indicates that the current treatment of the Palestinians in the Gaza Strip by the Israeli military may plausibly constitute a genocide in violation of international law.”. Strong evidence, according to him, suggests that Israel’s “military siege in Gaza is intended to eradicate a whole people and therefore plausibly falls within the international prohibition against genocide.”.

Judge White described the evidence in the case as “gut-wrenching” and urged “the Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza” following more than three hours of testimony by Palestinians, their relatives, a doctor, and advocates.

However, he concluded that the court lacked both the jurisdiction and the authority to make a decision on this issue, citing well-established legal principles known as the political question doctrine, which states that “foreign policy is constitutionally committed to the political branches of government, and disputes over foreign policy are considered non-justiciable political questions.”.

The lawsuit was dropped.

However, a few days later, a completely different ruling was rendered in a court case against the Biden administration that was clearly related to “non-justiciable political questions” and involved the same conflict.

Republican Representative Ronny Jackson and three other parties filed a lawsuit alleging that President Biden and Secretary Blinken violated the 2018 Taylor Force Act (TFA) and increased the risk of harm to US visitors to Israel by providing economic aid to the West Bank and Gaza. US District Judge Matthew Kacsmaryk in Amarillo, Texas, rejected the Biden administration’s motion to dismiss the lawsuit.

TFA is a federal law that forbids the US government from providing financial aid to the Palestinian Authority (PA) until it ceases providing stipends to Palestinians found guilty of “terrorism” and their families. It is named after a US veteran who was killed in 2017 by a Palestinian attacker in Israel, and whose parents are among the plaintiffs in the case.

The American government is allegedly prohibited by the TFA from offering financial assistance that would directly benefit the PA until it ceases to pay stipends, according to the lawsuit Jackson et al v. Biden et al. The Biden administration contends that the law only limits the ways in which money sent to Gaza and the West Bank can be used, not prohibiting all forms of financial support.

Congress allocated $225 million for this kind of assistance in the fiscal year 2023. The US Department of State stated that the aid is intended to assist the “Palestinian people” by supporting the most vulnerable households and providing resources for water, sanitation, and hygiene in a fact sheet released on March 26, 2023.

However, according to the lawsuit, the administration is in violation of the TFA by “unlawfully laundering US taxpayer funds” through aid to non-governmental organizations that directly benefit the PA.

The US Department of Justice claimed that the plaintiffs’ allegations of an increased risk of harm were “wholly conjectural,” which denied them the legal standing to file a lawsuit and, therefore, dismissed the case. The government further claimed that any potential harm stemmed from non-US government actions and argued that “dismissal was warranted to avoid entangling the courts in a high-level foreign policy matter.”.

However, Judge Kacsmaryk decided that the plaintiffs had successfully shown a “legitimate and warranted” fear of harm in the event that the funding is maintained, and he cited the Israeli attacks of October 7 as supporting evidence.

Despite the clear violation of the “political question doctrine” in this case, he permitted the lawsuit to proceed.

Even in cases where other legal requirements such as standing, ripeness, and mootness are satisfied, courts are nevertheless prohibited from considering specific constitutional matters by the political question doctrine, which is a pillar of constitutional law. This stems from the idea that some matters are better suited for other governmental branches or are not within the jurisdiction of the courts. Judges lose their authority to make decisions when it is determined that a particular issue falls under the purview of political questions.

In the Defense for Children case, Judge White correctly acknowledged this, but in Jackson et al. v. Biden et al., Judge Kacsmaryk decided to overlook it.

Legal scholars continue to disagree about the origins, goals, and applications of the political question doctrine. On its validity and extent, disagreements continue as well.

It is hard to dispute that the doctrine has a significant influence on how US courts interact with foreign policy, despite the wide and complex debate surrounding the matter.

The conduct of our government’s foreign relations is entrusted to the executive and legislative branches, or “the political” departments, by the Constitution, and the propriety of actions taken in the exercise of this political power is not subject to judicial review or determination, the court stated in the 1918 case of Oetjen v. Central Leather Company.

That broad assertion notwithstanding, the court considers each issue on an individual basis and does not dismiss cases or disputes that deal with foreign policy.

In Jackson et al. v. Biden et al., the dispute over foreign aid allocation is at the heart of a political dispute that is best left to the administration. This is true even if one adopts a case-by-case approach. This is particularly true, since, as the Defense for Children case demonstrated, the doctrine is frequently invoked to exempt the government from treaty obligations arising under international law.

Like many legal observers in the US, I was not shocked when the Defense for Children case was dismissed on the grounds of the political question doctrine, but I was taken aback when Judge Kacsmaryk decided to let Jackson et al. v. Biden et al. proceed.

Similar to many other US institutions, US courts are unable to remain impartial and independent when it comes to matters concerning Israel and Palestine. This is evident in the divergent applications of the doctrine in these two politically charged cases, one of which aims to prevent harm to Palestinians and the other to prevent aid from reaching them. This underlines the “Palestine exception” once more.

The opinions presented in this piece are those of the writer and may not accurately represent the editorial position of Al Jazeera.

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