Residents of Gaza Sue President Biden

Israeli Tank Protecting A settlement in the Jordan Valley, West Bank by Guillaume Paumier is licensed under CC BY 2.0

The Ninth Circuit is considering a case designed to force the Biden administration to “take all measures within their power to exert influence over Israel to end its bombing of the Palestinian people of Gaza.” Oral argument is scheduled for June 9, 2024.

Allegations

The plaintiffs are several NGOs, individual Palestinian residents of Gaza, and Palestinian-Americans with relatives in Gaza, represented by the Center for Constitutional Rights along with Van Der Hout, LLP. They sued members of the Biden administration in November 2023, alleging violations of articles 1 and 3 of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) which impose a duty to prevent genocide and a prohibition on “complicity in genocide.” Both obligations were enshrined in federal law through the Genocide Convention Implementation Act (18 U.S.C. § 1091), upon which the plaintiffs also rely. Neither the Genocide Convention nor the Implementation Act provides a cause of action for private plaintiffs to sue the government. For that, the plaintiffs appear to rely on federal common law and the Alien Tort Statute.

The very lengthy complaint in the case, Defense for Children International – Palestine v. Biden, alleges that (1) Israel is committing a genocide against the Palestinian residents of Gaza, (2) the Biden administration was or should have been aware of the risk that Israel would commit genocide or that genocide was already underway, and (3) the administration nevertheless knowingly provided assistance to Israel with a substantial effect on Israel’s commission of genocide. The plaintiffs seek an injunction preventing the Biden administration from enabling or facilitating Israel’s commission of genocide (including obstruction of international efforts to implement a ceasefire), to require the administration to exert influence over Israel to end the genocide, and a declaration from the court that the Biden administration is in violation of federal and international law. In a separate motion, the plaintiffs also seek a preliminary injunction to prevent the Biden administration and “all persons associated with them” from providing “any form of assistance” to Israel’s attacks on the Palestinians in Gaza.

The District Court’s Decision

The Biden administration moved to dismiss the case for lack of subject matter jurisdiction pursuant to the political question doctrine. The defendants also challenged the plaintiffs’ standing to bring the case, arguing they cannot show that a favorable court decision would remedy the injury because the alleged harm is traceable not to the defendants but instead to Israel. According to the administration, there is nothing to suggest Israel would change course in Gaza even if the U.S. pressured it to do so. The administration (in its brief to the Court of Appeals) later amplified this, pointing to Israel’s track record and comments from Israeli officials. Plaintiffs argued to the contrary, citing (in their reply brief to the Court of Appeals) other comments from Israeli officials suggesting that without various forms of U.S. support, Israel would not be able to continue its course of action in Gaza. The administration also argued that the complaint fails to state a claim because the plaintiffs do not have a privately enforceable right and that in any event injunctive relief is inappropriate for separation of powers reasons.

Despite finding it “plausible” that Israel’s conduct constitutes genocide, Judge Jeffrey S. White (N.D. Ca.) dismissed the case pursuant to political question doctrine without reaching the merits. The court reasoned that whether to provide “military or financial support” to a foreign nation, such as Israel, was an issue constitutionally committed to the discretion of the executive and legislative branches and outside the court’s jurisdiction. Additionally, the district court held that the injunctive relief sought by the plaintiffs would require it to intervene in foreign policy with Israel, which the court was not equipped to do because it lacked the “necessary” “intelligence or acumen.” The court also reasoned that granting the relief sought by the plaintiffs would require it to express views that could undermine foreign policy and cause embarrassment to the United States.

Appeal to the Ninth Circuit

On appeal, the plaintiffs argue that the political question doctrine is inapplicable based in part on Zivotofsky v. Clinton, which the district court did not cite.  In Zivotofsky, the State Department – pursuant to its longstanding policy towards the political status of Jerusalem – refused follow a federal statute allowing Americans born in Jerusalem to have “Israel” listed as their birthplace on their passports. The D.C. Circuit held that the political question doctrine barred the suit, but the Supreme Court reversed, holding that courts are “fully capable” of determining whether the statute was constitutional, notwithstanding foreign policy considerations. The plaintiffs’ argument that the political question doctrine is inapplicable is supported by several amicae curiae briefs submitted to the Ninth Circuit.

In response, the Biden administration emphasizes that decisions whether or not to provide military assistance to an ally engaged in armed conflict are discretionary ones that are not subject to judicial review. It contends that even if Israel were committing genocide, the United States would not have a “simple definite duty” to prevent it but would instead be faced with a set of difficult indeterminate policy choices and a spectrum of potential responses. For the courts to issue a decision, they would have to evaluate whether the United States is doing enough to prevent genocide and whether its decision strikes the right balance in light of its policy goals in the region. Such questions, they contend, are quintessentially political.

I think that the plaintiffs have the better of this argument. If a statute forbids the government from funding conduct that constitutes genocide, federal courts are fully capable of determining whether that statute unconstitutionally limits the president’s power to conduct foreign policy. Courts are also fully able to interpret what the federal statutes and the treaty actually require of the government. A hypothetical federal statute that prevents the government from giving any aid at all to Israel, for example, might well be both constitutional and enforceable by the courts (assuming an appropriate cause of action) – even if it had extremely profound foreign policy implications. As compared to that hypothetical statue, the statute and treaty involved in this case may give the federal government more discretion to decide how to discharge its obligations, so that the plaintiffs might not be entitled to the relief that they seek. But the determination of what the statute does or does not actually require of the government is a merits determination – not a political question. To be sure, the plaintiffs are unlikely to win this lawsuit for a variety of reasons, including the lack of a cause of action for their claims, but those are questions for another day.

Conclusion

Even if the defendants ultimately prevail in having the case dismissed, the legal basis for the dismissal matters. A dismissal based on the political question doctrine insulates the federal government from any review at all of whether its conduct actually violates the law – a sweeping proposition. And the government may be focusing on the political question doctrine (rather than on one of its stronger defenses) because that defense affords it the greatest leeway in this and other cases. Finally, even if the plaintiffs are ultimately unsuccessful, one of their goals with this litigation is no doubt to focus public attention on the actions of the U.S. government – a goal that appears to have motivated other Gaza-related litigation in U.S. courts.