Fifth Circuit Court Dismisses Lawsuit Challenging Texas Anti-BDS Law

The Fifth Circuit Court of Appeals dismissed a lawsuit on July 10 challenging Texas’ state law barring state contracts with businesses that engage in boycotts of Israel.

The lawsuit, A&R Engineering v. Scott, was filed in 2021 after the City of Houston offered A&R Engineering a renewal contract that included a provision barring boycotts of Israel. The city rebuffed A&R’s demand that the provision be removed, thus prompting the lawsuit and an injunction from a district court. Texas appealed the injunction. The city and A&R then agreed to a new contract without the provision. The Fifth Circuit sided with the Texas state government in the appeal, concluding that A&R did not have standing to sue and the district court lacked jurisdiction with the injunction because the law in question has “textually unenforceable language” and that “the Attorney General hasn’t taken any action to suggest he might enforce the provision even if he has such power.”

“There is not a single state that has adopted an anti-BDS [Boycott, Divestment and Sanctions] law that does not have that law up and running in full effect today. Challenges to state anti-BDS laws have not succeeded in a single instance,” Israeli-American Coalition for Action Executive Director Joseph Sabag said in a statement. “This particular case represented some of the last gasps of the BDS hate movement’s effort to attack these laws in the federal courts. The forces of BDS are running out of plaintiffs, and their legal arguments have proven lacking through every case they’ve lost.” Sabag aided in the drafting of Texas’ anti-BDS law.

StandWithUs CEO and Co-Founder Roz Rothstein similarly said in a statement, “This last month has been monumental for the fight against BDS and national-origin discrimination. Parties who sought to defend their states’ anti-BDS laws have prevailed victoriously in both the Fifth and the Eleventh Circuit Court of Appeals. And on July 6, New Hampshire became the newest state to adopt anti-BDS as state policy. Let the record reflect that anti-BDS laws are here to stay.” StandWithUs had arranged an amicus brief defending Texas’ anti-BDS law in the A&R lawsuit.

George Mason Law Professor Eugene Kontorovich tweeted that the Fifth Circuit’s ruling was a “common outcome” on cases challenging anti-BDS laws. “The suits are manufactured,” Kontorovich wrote. “Strategic plaintiffs trying to throw themselves in front of the law to challenge it, rather than actually being harmed.”

5th Cir. Ct. of Appeals threw out challenge to anti-BDS laws today finding plaintiff had no standing. This is common outcome, because the suits are manufactured; strategic plaintiffs trying to throw themselves in front of the law to challenge it, rather than actually being harmed

— Eugene Kontorovich (@EVKontorovich) July 10, 2023

Last week, New Hampshire Governor Chris Sununu (R) signed an anti-BDS executive order; according to StandWithUs, “36 states now have binding anti-BDS laws” while another “has a non-binding resolution.”