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Challenge to Hogan’s anti-BDS order draws 4th Circuit skepticism

Counsel for a software engineer and former Maryland legislator urged a skeptical federal appeals court Tuesday to revive his client’s free-speech challenge to Gov. Larry Hogan’s executive order requiring those bidding on state contracts to pledge they are not boycotting Israel and will not while under contract.

Attorney Gadeir I. Abbas told the 4th U.S. Circuit Court of Appeals that a trial judge had incorrectly ruled that Saqib Ali – a supporter of the boycott, divest and sanction Israel movement – lacked standing to challenge the order because his self-run firm had not even applied for  a state contract.

Abbas said submitting an application would have been futile — and thus unnecessary for standing — because Ali could not make the required pledge. The attorney called the pledge akin to a “loyalty oath,” which the government cannot compel individuals to sign without violating their constitutional First Amendment right to free speech.

“Saqib Ali is not willing to sign an oath that disavows his long-standing political beliefs,” said Abbas, of the Council on American-Islamic Relations Legal Defense Fund.

“That is the compelled-speech component of standing,” Abbas added. “We do think it is important for the 4th Circuit to not allow the state of Maryland or anybody else to impose loyalty oath requirements on any residents of the state of Maryland (or) anybody who wants to contract with the state of Maryland.”

But all three judges on the 4th Circuit panel – Robert B. King, Stephanie D. Thacker and Pamela A. Harris — indicated support for U.S. District Judge Catherine C. Blake’s ruling that Ali could not bring his challenge unless and until he had filed an application and suffered the actual injury of having it rejected.

“This is someone who has deeply felt and generalized concerns with the executive order,” Harris said of Ali.

“(But) he has never submitted a bid before, he hasn’t submitted a bid yet, everybody is telling him to submit a bid but he won’t, which gives rise to a at least a concern that this is less about a desire to participate in the contracting process and more about opposition ideologically to the order.”

Abbas responded that Ali’s submission of an unsigned application would be pointless as it would certainly be rejected — an argument that apparently drew no support from Thacker.

“If the state rejects the bid, then you have standing,” she said.

The 4th Circuit judges were less critical of Assistant Maryland Attorney General Adam D. Snyder’s counter argument that the pledge not to boycott Israel is “not a loyalty oath in any sense of the term” because it does not require people to ascribe to “certain belief systems.”

“It just requires people to acknowledge to the state that they are not engaging in national-origin discrimination,” Snyder said.

Ali, a North Potomac Democrat, served in the House of Delegates from 2007 to 2011 and is running to regain a seat in next year’s election. In his lawsuit challenging the executive order, Ali said he supports boycotting those who “contribute to the oppression of Palestinians.”

Hogan issued the executive order in 2017 after the General Assembly failed to pass several “anti-BDS” bills.

Supporters of the BDS movement generally oppose what they regard as Israel’s mistreatment of Palestinians. BDS has drawn fire from a large segment of the Jewish community who believe support for the movement is rooted in antisemitism and not opposition to Israeli policy.

Hogan, in district court papers, defended his executive order as narrowly focused on ensuring that companies which bid on state contracts comport with the government’s interest in promoting tolerance of minority groups.

“The executive order … does not prohibit or punish anti-Israel boycotts generally; it places no limits on how business entities choose to act in the private marketplace,” Snyder wrote in the governor’s defense. “The executive order makes clear that Maryland will not allow itself, through its purchasing decisions, to subsidize and become a passive participant in a form of national-origin discrimination that offends longstanding Maryland public policy.”

The 4th Circuit did not state when it will rule on Ali’s appeal. The case is docketed at the appellate court as Saqib Ali v. Lawrence Hogan Jr., No. 20-2266.