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February 20, 2022 5:40 pm

US Court of Appeals Dismisses Lawsuit Against Maryland’s Anti-BDS Executive Order

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The Constitution of the United States. Photo: Wikicommons.

A United States court of appeals on Friday rejected a lawsuit challenging an executive order by Maryland Governor Larry Hogan that prohibits the state from doing business with entities that boycott Israel.

Signed in 2017, the order was a response to the Palestinian-led boycott, divestment, and sanctions (BDS) campaign, which seeks to economically, politically, and culturally isolate Israel.

The case was argued by lawyers from the Council on American-Islamic Relations (CAIR), who charged on behalf of plaintiff Saqib Ali that the order is “unconstitutional” under the First and Fourteenth Amendments, particularly in those aspects related to free speech and assembly.

Ali, a software engineer, does not do business with the state or with Israeli entities, but held that his personal boycott of Israeli products and general beliefs on the matter preclude his working with the state, causing him injury. In addition, he held that the executive order constitutes a form of “loyalty oath” that he should not be forced to take.

The suit sought to overturn an October 2020 ruling by a district court that dismissed Ali’s suit with prejudice, on the grounds that he did not have standing under Article III of the US Constitution, which regulates cases that can be brought before a federal court. Ali, the court stated, could not demonstrate that he had suffered a “direct injury” as a result of the order.

In its decision, the US Court of Appeals for the Fourth Circuit reaffirmed the district court’s ruling.

“Logically, because Ali has never submitted a bid for any state procurement contract, he cannot receive an affirmative offer for any such contract, nor can he be compensated for work that he has never performed,” said the court.

It also rejected Ali’s claim that he was required to take a “loyalty oath,” saying, “the Executive Order requires a business entity to refrain from discriminating on the basis of Israeli national origin only in forming a bid. It does not require the entity to, for example, pledge any loyalty to Israel or profess any other beliefs.”

The court therefore reaffirmed the district court’s ruling, but amended it to reflect that it dismissed the case without prejudice.

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