Race to the White House: A tale of two US court decisions, and the Palestine exception

Contrasting verdicts in two politically charged federal court cases raise questions about the US judiciary’s objectivity on matters relating to Israel-Palestine.

By Desmond Nleya

A new occupant of the oval office in the white house will be elected later this year, with a re- match between the incumbent and the former President Donald Trump on the horizon.

However, the elections are likely going to be won in the courtroom and certainly not in the ballot box.

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.

The first case, Defense for Children International – Palestine v Biden (“Defense for Children”), alleged that President Biden, his Secretary of State Antony Blinken, and Defense Secretary Lloyd Austin have “actively abetted” the state of Israel to commit genocide in contravention of their responsibilities under the 1948 Genocide Convention. The lawsuit sought court orders mandating the administration to take all necessary steps to halt Israel’s attacks on Gaza, stop sending military aid, and cease its opposition to a ceasefire at the United Nations Security Council.

The US provides $3.8bn annually in military aid to Israel, and Biden is currently seeking Senate approval to send an additional $14.1bn later this year.

In a January 31 written decision, US District Judge Jeffrey White of the Northern District of California quoted approvingly from the preliminary ruling issued the week before by the International Court of Justice in a case brought against Israel by South Africa, which found Israel’s current conduct in Gaza may plausibly amount to genocide and ordered it to stop killing and wounding Palestinians.

“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,” wrote Judge White. He found that there was strong evidence that Israel’s “military siege in Gaza is intended to eradicate a whole people and therefore plausibly falls within the international prohibition against genocide…”

After hearing more than three hours of testimony by Palestinians, their relatives, a physician and advocates, Judge White called the evidence in the case “gut-wrenching” and implored “the Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza”.

Nevertheless, noting that under well-established legal standards, known as the political question doctrine, “foreign policy is constitutionally committed to the political branches of government, and disputes over foreign policy are considered non-justiciable political questions”, he ruled that the court has neither the competence nor the authority to decide on this matter.

The case was dismissed.

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.

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

TFA – named after a US veteran who was killed by a Palestinian attacker in Israel in 2017 and whose parents are among the plaintiffs in the case – is a federal law that prohibits the US government from giving economic aid to the Palestinian Authority (PA) until it stops paying stipends to Palestinians convicted of “terrorism” and their family members.

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. The Biden administration argues that the law does not bar all economic support for the West Bank and Gaza, but only restricts how money sent can be spent.

In the 2023 fiscal year, Congress provided $225m in such aid. In a fact sheet issued on March 26, 2023, the US Department of State said that the aid is to help the “Palestinian people”, supporting the neediest households and providing water, sanitation and hygiene resources.

But the lawsuit alleges that the administration is “unlawfully laundering US taxpayer funds” by providing aid to non-governmental organisations that directly benefit the PA, in violation of the TFA.

In its efforts to get the case dismissed, the US Department of Justice argued that the plaintiffs lacked legal standing to sue because their claims of an increased risk of harm were “wholly conjectural”. The government further alleged that any risk of future harm was due to actions by others besides the US government, and contended that “dismissal was warranted to avoid entangling the courts in a high-level foreign policy matter”.

Judge Kacsmaryk, however, ruled that the plaintiffs successfully demonstrated a “legitimate and warranted” fear of harm if the funding continues, and pointed to the October 7 attacks in Israel as substantiating evidence.

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. It’s rooted in the principle that certain issues are best left to other branches of government or fall outside the judicial purview. 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. Disagreements also persist on its scope and very legitimacy.

The debate on the issue is vast and multifaceted, but it is impossible to deny that the doctrine plays an important role in shaping the relationship between US courts and foreign affairs.

In the 1918 case of Oetjen v Central Leather Company, the court wrote that “[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative – ‘the political’ – departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision”.

However, despite that sweeping statement, not every case or controversy that touches on foreign relations lies beyond judicial cognisance; rather, the court analyses each question on a case-by-case basis.

Even taking the case-by-case approach, it is difficult to deny that a dispute over the allocation of foreign aid – which is at the centre of Jackson et al v Biden et al – is clearly a political question that should be left with the administration. This is especially so given that the doctrine is commonly applied to shield the administration even from its treaty obligations arising under international law, as we saw in the Defense for Children case.

Like many legal observers in the US, I was not surprised by the dismissal of the Defense for Children case under the political question doctrine, but was caught off guard by Judge Kacsmaryk’s decision to allow  Jackson et al v Biden et al to move forward.

The contrasting application of the doctrine in these two politically charged cases – one seeking to prevent harm to Palestinians, and the other stop aid from reaching them – speaks to the inability of US courts, like many other US institutions, to maintain their independence and objectivity in issues relating to Israel-Palestine, and highlights once again the “Palestine exception”.