Texans for Israel Files First Amendment Lawsuit Over Biden’s West Bank Sanctions

In February, President Joe Biden issued an executive order declaring a “national emergency” in response to “high levels of extremist settler violence” in the West Bank and imposing economic sanctions on “individuals undermining the peace, security, or stability” there. While he emphasized the threat posed by attacks on Palestinian civilians, his order expanded much further, covering “any foreign person” the secretary of state or the secretary of the treasury determines to be “complicit” in activities that “threaten the peace, security, or stability of the West Bank.” Because the order prohibits “any contribution or provision of funds, goods, or services” to a designated individual, it also applies to U.S. citizens.

According to a federal lawsuit filed this week by the Christian Zionist organization Texans for Israel, the broad scope of the sanctions violates the First Amendment by punishing nonviolent advocacy and activism. Biden’s order “authorizes the punishment of an individual who ‘directly or indirectly’ harms ‘the peace, security, or stability of the West Bank,’” the complaint, filed Tuesday in the U.S. District Court for the Northern District of Texas, says. “This open-ended and vague provision authorizes the Treasury Department’s Office of Foreign Assets Control (OFAC) to impose sanctions on anyone who acts contrary to what the Secretary of the Treasury determines is furthering the cause of ‘the peace, security, or stability of the West Bank.’ It violates the First Amendment.”

The November memo on what Biden described as a “visa ban on extremists targeting civilians in the West Bank” defined the targets broadly, saying they include anyone engaging in “activities that significantly impede, disrupt, or prevent efforts to achieve a two-state solution.” Because the Biden administration has described settlement construction in the West Bank, or Judea and Samaria, as an “obstacle to peace” that “makes it more difficult to achieve a two-state solution,” it appears to view support for such activity as sanctionable. “This is the first and only sanctions regime in which the Administration has recognized as ordinary, peaceful activities and reasonable “political positions that many Americans support are inimical to ‘peace’ and therefore subject to sanctions,” the complaint reads.

Texans for Israel “is dedicated to fully supporting the Jewish people in their ancestral homeland, Israel.” That mission includes “educating Texans about the importance of Israel” and “promoting cultural exchange between the two regions.” It also includes “assistance to individuals, organizations, and communities, with a special focus on those in the heartland of Israel: Jerusalem, Judea, and Samaria.”

In support of that mission, Texans for Israel President Michael Isley “has traveled to Judea and Samaria more than 40 times,” has volunteered on West Bank farms and “developed strong relationships with the Jewish community in Hebron.” He has also hosted several Israelis in his home, including a spokesperson for the community. The lawsuit claims that the guests, “whom Mr. Isley and Texans for Israel support financially and have invited to the United States for educational and fundraising purposes,” “hold views and engage in activities, including First Amendment-protected speech, that the Biden administration would consider ‘threatening the peace and security’ of the Middle East.”

Isley shares these views. “One of our goals is to teach and tell our Christian friends to support Judea and Samaria,” he says. “This is the path that the patriarchs walked. This is the Cave of the Patriarchs that Abraham bought.” While “I love Tel Aviv and Jerusalem,” he adds, “I really love Judea and Samaria. There will never be a two-state solution. This is the land that God gave to the Jews.”

Biden’s order says there is “no need for advance notice of the letter or determination made pursuant to this order.” According to the lawsuit, Isley fears “that he may be subject to sanctions without advance notice, and this fear has chilled his ability to continue to advocate for the invitation of the above-named individuals to the United States to speak with government officials and ordinary citizens about Israel—specifically, Judea and Samaria.”

Another plaintiff, Ari Abramowitz, is a dual U.S.-Israeli citizen who lives on an “isolated farm” in Gush Etzion. According to the lawsuit, he “has been subjected to repeated violent attacks” and “is now afraid to go outside.” The lawsuit says Abramowitz fears he could be punished for acting in self-defense. “If he, his wife, or his children are again attacked by Palestinian terrorists and if he uses force to defend himself and his family,” it says, “Mr. Abramowitz could be subject to these severe sanctions without notice.”

The other plaintiffs are Regavim, an Israeli organization that supports Tzav 9, a movement opposed to aid to Gaza; Meir Deutsch, a dual citizen and “ardent opponent of the two-state solution” who leads Regavim; and Yosef Ben Chaim, the husband of Tzav 9 founder Reut Ben Chaim, who was sanctioned under Biden’s executive order last month. Although Tzav 9’s tactics include protests blocking trucks carrying aid to Gaza, the organization maintains that it has always “acted lawfully” as part of a peaceful “democratic protest” against “aid that goes directly to Hamas.” Reut Ben Chaim, a mother of eight who says her movement aims “solely to bring our hostages home,” complains that “the United States is brutally attacking us, even though we have done nothing illegal.”

As a result of the sanctions, Reut Ben Chaim’s Israeli bank account was frozen. This meant that her husband, who worked for her tour guide company, could no longer receive a salary. The complaint said that as a result, “he cannot finance basic, everyday transactions: food, education, medicine, hygiene products (i.e. diapers, etc.), mortgage payments, etc.”

When the U.S. government imposes sanctions on someone, “their bank accounts and those of their immediate family will be frozen,” George Mason University law professor Eugene Kontorovich, one of the plaintiffs’ lawyers, notes in his book. Wall Street Journal“Anyone who provides them with any ‘funds, goods, or services’ could also be subject to sanctions. These are harsh measures usually reserved for terrorists and dictators. Texans for Israel’s support of settlements in Judea and Samaria — through speaking engagements or donating to Israeli advocacy groups — is an exercise of its First Amendment rights. But because the executive order is so broad and encompasses a vast amount of perfectly legal conduct, the organization exposes itself to enormous financial risks that unconstitutionally restrict its free speech.”

The lawsuit alleges that the Treasury Department and the State Department failed to “make appropriate factual findings” when designating individuals for sanctions, giving credit to “false and misleading allegations of misconduct by Jewish residents of the West Bank without making any effort to verify or corroborate the allegations.” Giving credence to that accusation, the U.S. government last month imposed sanctions on Aviad Shlomo Sarid, a 27-year-old resident of Revava, because of his alleged involvement with Tzav 9. “Sarid has no connection with Tzav 9 and did not participate in its activities.” Ynet reported. “The intended target was Shlomo Sarid, the organization’s volunteer coordinator, who is much older and lives in the Jordan Valley, not Revava.”

In addition to their First Amendment claim, the plaintiffs argue that Biden’s order violates the Religious Freedom Restoration Act because it “substantially hinders the exercise of plaintiffs’ religion” but is not the “least restrictive means” that serves a “compelling governmental interest.” The only justification cited by the government, they say, is “its concern that the targeted activity could ‘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 deemed to impose a ‘generally applicable’ burden on religious exercise.” It “grant[s]complete discretion” to the secretary of the treasury and the secretary of state to determine who should be punished, the complaint said, and it “was intended to target a specific subset of religious beliefs”: the belief that “Jews have a right to settle in Judea and Samaria.”

For similar reasons, the plaintiffs argue that Biden’s order is subject to “strict scrutiny” under the Fifth Amendment’s equal protection guarantee because it “targets a suspect class.” While the order “avoided explicit references to race or religion,” they argue, it is clearly “concerned with the Jewish people and their religious beliefs.” The Biden administration “has made clear through its words and executive actions that only the Jewish people are subject to sanctions,” the complaint says. The order “does not withstand strict scrutiny,” it adds, “because there was no compelling governmental interest in declaring a national emergency or imposing sanctions because of the alleged actions of a small sector of an already small population in a geographically limited area under the lawful and effective control of the Government of Israel.”

The lawsuit also claims that Biden’s order is “arbitrary and capricious,” in violation of the Administrative Procedure Act, and that its vagueness violates the Fifth Amendment’s due process guarantee, which includes a requirement for “fair notice.” The order “violates the Fifth Amendment’s fair notice requirement because it does not adequately describe what conduct constitutes sanctionable activity,” the plaintiffs say. It is “so vague that it is impossible for covered parties to guess what types of speech are covered, as evidenced by the numerous requests for clarification that OFAC has already received.”

In case you’re not inclined to sympathize with these plaintiffs because you disagree with their views, Kontorovich underscores the stakes. “If the Biden administration were allowed to do so,” he writes, “another administration could freeze the bank accounts of Americans who support left-wing Israeli groups, simply because they consider their activities to be detrimental to peace and stability in the West Bank. Sanctions have never been used to silence such political disagreements.”