A software engineer and former Maryland legislator lacked standing to challenge 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, a federal appeals court ruled Friday.
Saqib Ali – a supporter of the boycott, divest and sanction (or BDS) Israel movement – cannot sue Hogan because Ali had not applied for a state contract and been rejected and thus cannot claim an “injury” due to the governor’s executive order, the 4th U.S. Circuit Court of Appeals stated in its published 3-0 decision.
The 4th Circuit also rejected Ali’s argument that the order’s required pledge violates his constitutional right to speak freely against Israel, whom he believes oppresses Palestinians. The court said the order does not infringe on the First Amendment because it addresses “actions” taken against Israel by the contractor in the bidding process and does not interfere with an individual’s “beliefs or political ideology.”
“That is, the executive order requires a business entity to refrain from discriminating on the basis of Israeli national origin only in forming a bid,” Judge Robert B. King wrote. “It does not require the entity to, for example, pledge any loyalty to Israel or profess any other beliefs.”
King was joined in the opinion by Judges Stephanie D. Thacker and Pamela A. Harris.
Ali, a North Potomac Democrat, served in the House of Delegates from 2007 to 2011 and is running in this year’s election to regain a seat. In his lawsuit challenging the executive order, Ali said he supports boycotting those who “contribute to the oppression of Palestinians.”
Ali argued through counsel that bidding on state contracts would have been futile due to the executive order’s required “Section C” pledge regarding Israel, which he said amounted to an unconstitutional loyalty oath.
U.S. District Judge Catherine C. Blake dismissed Ali’s lawsuit, saying he could not bring his challenge unless and until he had filed an application and suffered the actual injury of having it rejected. The 4th Circuit agreed, saying the executive order does not bar Ali from bidding on a state contract.
“Given the plain meaning of the executive order and the allegations of (Ali’s) complaint, we are unable to accept the proposition that Ali is prohibited from signing the Section C certification and submitting a bid on a Maryland procurement contract,” King wrote. “As such, we reject Ali’s related theory that he possesses standing to sue premised on a direct injury.”
Neither Ali nor the governor’s office immediately returned messages seeking comment on the 4th Circuit’s decision.
Ali was represented in court by attorneys from the Council on American-Islamic Relations Legal Defense Fund. The Maryland attorney general’s office argued on behalf of the governor.
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 that 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,” the attorney general’s office 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 rendered its decision in Saqib Ali v. Lawrence Hogan Jr., No. 20-2266.