Court Dismisses Defense for Children International-Palestine, et al. v. Biden, et al.
The Court finds that the claims alleged raise fundamentally non-justiciable political questions.
On January 31, 2024, the United States District Court Northern District of California granted Defendants’ motion to dismiss and denied Plaintiffs’ motion for a preliminary injunction.
The following are excerpts from the court’s order.
BACKGROUND
On November 13, 2023, Plaintiffs filed this suit against the Defendants to “take all measures within their power to prevent Israel’s commission of genocidal acts against the Palestinian people of Gaza.” Plaintiffs allege that Defendants violate their duties under Article I of the Genocide Convention by supporting Israel’s military actions following the attacks of October 7, 2023. Plaintiffs further allege that Defendants, by providing diplomatic, financial, and military support to Israel, are complicit in Israel’s purported commission of genocide, in violation of Article III(e) and its implementing legislation, which makes genocide a federal crime. Plaintiffs allege that Defendants have violated the duties of the United States under international law and, by its actions, is complicit in the ongoing genocide of the Palestinian people in Gaza.
In their motion for a preliminary injunction, Plaintiffs seek an “order enjoining Defendants and all persons associated with them from providing any further military or financial support, aid, or any form of assistance to Israel’s attacks and maintenance of a total siege on Palestinians in Gaza, in accordance with their duty under federal and customary international law to prevent, and not further, genocide.”
Further, Plaintiffs seek an order from this Court requiring Defendants to “exert influence over Israel to end its bombing of the Palestinian people of Gaza, … to lift the siege on Gaza, … and to prevent the ‘evacuation’ or forcible transfer and expulsion of Palestinians from Gaza.” Lastly, Plaintiffs seek to have this Court enjoin Defendants “from obstructing attempts by the international community, including at the United Nations, to implement a ceasefire in Gaza and lift the siege on Gaza.”
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. Both the uncontroverted testimony of the Plaintiffs and the expert opinion proffered at the hearing on these motions as well as statements made by various officers of the Israeli government indicate that the ongoing military siege in Gaza is intended to eradicate a whole people and therefore plausibly falls within the international prohibition against genocide.
It is every individual’s obligation to confront the current siege in Gaza, but it also this Court’s obligation to remain within the metes and bounds of its jurisdictional scope.
ANALYSIS
The Political Question Doctrine Bars Plaintiffs’ Claims.
The Court finds that the claims alleged here raise fundamentally non-justiciable political questions. At its core, the political question doctrine is concerned with the separation of powers between the separate branches of government, and limits jurisdiction of the courts to “cases and controversies.” See U.S. Const. Art. III, § 2; see also Powell v. McCormack, 395 U.S. 486, 518 (1969); Baker v. Carr, 369 U.S. 186, 210 (1962). The political question doctrine “first found expression in Chief Justice Marshall’s observation that ‘questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.’” Corrie v. Caterpillar, Inc, 503 F.3d 972, 980 (9th Cir. 2007) (citing Marbury v. Madison, 5 U.S. 1 (1 Cranch) 137, 170 (1803)); see also Baker, 369 U.S. at 210 (holding that the nonjusticiability of political questions is founded on the doctrine of separation of powers, whether a matter has been committed to another branch of government by the Constitution). The doctrine “excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986).
According to Supreme Court jurisprudence, there are six criteria to determine whether a dispute presents a nonjusticiable political question:
Prominent on the surface of any case held to involve a political question is found
(1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or
(2) a lack of judicially discoverable and manageable standards for resolving it; or
(3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or
(4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
(5) an unusual need for unquestioning adherence to a political decision already made; or
(6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker, 369 U.S. at 217.
The presence of any one factor indicates the existence of a political question. If any one of these factors is “‘inextricable from the case,’ the court should dismiss the case as non-justiciable because it involves a political question.” If a claim or issue involves a nonjusticiable political question, courts will lack subject matter jurisdiction and cannot consider those claims. See, e.g., Republic of Marshall Islands v. United States, 865 F.3d 1187, 1200 (9th Cir. 2017).
The most important considerations in reaching a determination that a question falls into the category of political questions are the first two outlined in Baker:
“the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination . . .” Coleman v. Miller, 307 U.S. 433, 454-55 (1939).
Among the areas that the courts have traditionally deemed to involve political questions is that of foreign relations, which “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.” Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918).
Foreign policy is constitutionally committed to the political branches of government, and disputes over foreign policy are considered nonjusticiable political questions. See, e.g., Haig v. Agee, 453 U.S. 280, 292 (1981) (“The conduct of foreign relations … is exclusively entrusted to the political branches … and immune from judicial inquiry or interference.”). “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936); see also Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003) (“historical gloss on the ‘executive power’ vested in Article II of the Constitution has recognized the President’s ‘vast share of responsibility for the conduct of our foreign relations.’”). “The nuances of the foreign policy of the United States … are much more the province of the Executive Branch and Congress than of this Court.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 386 (2000). The foreign policy decision whether to provide military or financial support to a foreign nation is “a quintessential political question” and likely “inappropriate for judicial resolution.” See Abusharar v. Hagel, 77 F. Supp. 3d 1005, 1006 (C.D. Cal. 2014); Caterpillar, 503 F.3d at 983. “If the court is being called upon to serve as a forum for considering the wisdom of discretionary decisions made by the political branches in the realm of foreign policy or national security, then the political-question doctrine is implicated, and the court cannot proceed.” Mobarez v. Kerry, 187 F. Supp. 3d 85, 92 (D.D.C. 2016) (opinion by Ketanji Brown Jackson, J.).
Here, Plaintiffs’ challenge to the appropriateness of providing financial and military aid to Israel is a challenge to the manner in which the President and Executive Branch officials conduct the foreign affairs of the United States. Plaintiffs’ request to have this Court enjoin the government of the United States from providing military or financial assistance to Israel invokes matters are “intimately related to foreign policy and national security” and are “largely immune from judicial inquiry and interference.” Haig, 453 U.S. at 292; Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952). Both Congress and the President have determined that military and economic assistance to Israel is necessary at this time. See, e.g., Dickson v. Ford, 521 F.2d 234, 235-36 (5th Cir. 1975).
Plaintiffs’ claims fail the first Baker factor because the judiciary “cannot intrude into our government’s decision to grant military assistance to Israel … as that foreign policy decision is committed under the Constitution to the legislative and executive branches.” Caterpillar¸ 503 F.3d at 983.
“Whether to grant military or other aid to a foreign nation is a political decision inherently entangled with the conduct of foreign relations.” Caterpillar, 503 F.3d at 983. Where both “the Congress and the President have determined that military and economic assistance to the State of Israel is necessary,” the question of “whether foreign aid to Israel is necessary at this particular time is a ‘question uniquely demanding single-voiced statement of the Government’s views’ and is therefore inappropriate for judicial resolution.”
In Caterpillar, the Ninth Circuit relied on the political question doctrine and determined that the courts “cannot intrude into our government’s decision to grant military assistance to Israel, even indirectly.”
This Court is accordingly guided by the political question doctrine and finds that, having sued members of the Executive directly, ruling on Plaintiffs’ request for an injunction would implicate several other Baker factors. For example, the judiciary is not equipped with the intelligence or the acumen necessary to make foreign policy decisions on behalf of the government. “The very nature of executive decision as to foreign policy is political, not judicial… They are decisions of a kind for which the Judiciary has neither aptitude, facilities, nor responsibility and have long been held to belong to the domain of political power not subject to judicial intrusion or inquiry.” Chicago & Southern Airlines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
In addition, making such foreign policy determinations would require this Court to “implicitly question, and even condemn, United States foreign policy toward Israel” and would “potentially … cause international embarrassment were a federal court to undermine foreign policy decisions in the sensitive context of the Israeli-Palestinian conflict.” Caterpillar, 503 F.3d at 983-84. “We simply cannot square the primacy of the Executive in the conduct of foreign relations and the Executive Branch’s lead role in foreign policy … with an injunction that compels the United States to” end support and exert influence over Israel. Republic of Marshall Islands, 865 F.3d at 1201.
Because any determination to challenge the decision of the executive branch of government on support of Israel is fraught with serious political questions, the claims presented by Plaintiffs here lie outside the Court’s limited jurisdiction. See Caterpillar, 503 F.3d at 980 (“It is not the role of the courts to indirectly indict Israel for violating international law with military equipment the United States government provided and continues to provide”); see also Schlesinger v. Reservists Comm. To Stop the War, 418 U.S. 208, 215 (1974) (“The concept of justiciability, which expresses the jurisdictional limits imposed upon federal courts by the ‘case or controversy’ requirement of Art. III, embodies … the political question doctrine.”).
CONCLUSION
There are rare cases in which the preferred outcome is inaccessible to the Court. This is one of those cases. The Court is bound by precedent and the division of our coordinate branches of government to abstain from exercising jurisdiction in this matter. Yet, as the ICJ has found, it is plausible that Israel’s conduct amounts to genocide. This Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.
The Court GRANTS Defendants’ motion to dismiss without leave to amend and DENIES Plaintiffs’ motion for a preliminary injunction. A separate judgment shall issue and the Clerk is instructed to close the case.
IT IS SO ORDERED.
Dated: January 31, 2024
JEFFREY S. WHITE
United States District Judge