President Joe Biden issued an executive order in February declaring a “national emergency” in response to extremist settler violence in the West Bank, imposing economic sanctions on individuals undermining peace and security there. The order extends to any foreign person deemed complicit in threatening the region’s stability, including U.S. citizens. A federal lawsuit filed by Texans for Israel argues that these broad sanctions violate the First Amendment by punishing peaceful advocacy and activism. The lawsuit challenges the order’s vague provisions that empower sanctions against those deemed to act contrary to peace and security in the West Bank.
Texans for Israel, a Christian Zionist organization, supports the Jewish People in Israel, including educational efforts and aid in Judea and Samaria. President Michael Isley’s personal involvement in the region, hosting Israelis at his home and supporting their activities, could subject him to sanctions without notice. Another plaintiff, Ari Abramowitz, fears penalties for defending himself and his family against violent attacks on his farm in Gush Etzion. The lawsuit also includes Israeli organizations and individuals targeted under Biden’s order, affecting their ability to support their causes and maintain essential transactions.
The lawsuit argues that the sanctions imposed by the U.S. government, freezing bank accounts and restricting financial transactions, are harsh measures typically reserved for terrorists and dictators. The plaintiffs challenge the order’s impact on their freedom of speech and peaceful activities in support of their causes in Israel.
Texans for Israel’s support for Judea and Samaria settlements—by hosting speaking events or donating to Israeli advocacy groups—is an exercise of its First Amendment rights. But because of the breadth of the executive order, which sweeps in vast amounts of perfectly legal conduct, it faces massive financial risks that unconstitutionally chill its free speech.”
The lawsuit alleges that the Treasury Department and the State Department have failed to “engage in proper fact-finding” when designating individuals for sanctions, crediting “false and misleading allegations of misconduct by Jewish residents of the West Bank without making any effort to verify and validate” them. Lending credence to that charge, the U.S. government last month sanctioned Aviad Shlomo Sarid, a 27-year-old resident of Revava, because of his alleged involvement in Tzav 9. “Sarid has no connection to Tzav 9 and has not participated in its activities,” Ynet reported. “The intended target was Shlomo Sarid, the organization’s volunteer coordinator, who is much older and resides in the Jordan Valley, not in Revava.”
In addition to the First Amendment claim, the plaintiffs argue that Biden’s order violates the Religious Freedom Restoration Act because it “substantially burdens the exercise of Plaintiffs’ religion” but is not “the least restrictive means” of serving a “compelling governmental interest.” The only justification cited by the government, they say, is “its concern that the targeted activity might ‘undermine the foreign policy objectives of the United States,'” which is “an insufficiently compelling interest.”
The lawsuit claims the order also violates the First Amendment’s guarantee of religious freedom because it “cannot be considered to impose ‘generally applicable’ burdens on religious practice.” It “vests complete discretion” in the secretary of the treasury and the secretary of state to determine who should be sanctioned, the complaint says, and it “was intended to target a particular subset of religious belief”: the belief that “Jews have a right to settle in Judea and Samaria.”
On similar grounds, the plaintiffs argue that Biden’s order is subject to “strict scrutiny” under the Fifth Amendment’s guarantee of equal protection because it “targets a suspect class.” Although the order “avoided making express references to race or religion,” they say, it is clearly “targeted at the Jewish People and their religious beliefs.” The Biden administration “has made clear by its words and enforcement actions that only Jewish people are at risk at being sanctioned,” the complaint says. The order “does not withstand strict scrutiny,” it adds, “because there was no compelling governmental interest to declare a national emergency or to impose a sanctions regime due to the alleged activities of a miniscule sector of an already small population in a geographically limited area under legitimate and effective control by the Israeli government.”
The lawsuit also argues that Biden’s order is “arbitrary and capricious,” in violation of the Administrative Procedure Act, and that its vagueness violates the Fifth Amendment’s guarantee of due process, which includes a “fair notice” requirement. The order “violates the Fifth Amendment’s requirement of fair notice because it does not sufficiently describe what conduct constitutes sanctionable activity,” the plaintiffs say. It is “so vague that regulated parties cannot possibly guess what types of speech are affected, as evidenced by the multiple requests for clarification that have already been received by OFAC.”
In case you are not inclined to sympathize with these plaintiffs because you disagree with their views, Kontorovich highlights the principle at stake. “If the Biden administration is permitted to do this,” he writes, “a different administration down the line could freeze the bank accounts of Americans who support left-wing Israeli groups simply by deeming their activities bad for peace and stability in the West Bank. Sanctions have never been used to silence policy disagreements like this.”
