If truth is the first casualty of war, rationality may well be the second.
The appalling devastation in Gaza, much of it wrought by U.S.-supplied weapons, certainly seems to have driven many of Israel’s critics, including otherwise reasonable people, to thoughtless measures, staking out extreme and unsupportable positions that will do nothing to end the war.
One case in point is a bizarre federal class action lawsuit (Donnelly v. Thompson) recently filed in the Northern District of California, claiming that Reps. Mike Thompson (D-Calif.) and Jared Huffman (D-Calif.) had “exceeded the constitutional limitations on their tax and spend authority by voting to authorize the funding of the Israeli military.”
According to the complaint, the representatives’ votes violated “customary international law” and several U.S. statutes that prohibit military aid to countries that violate human rights, thus violating the plaintiffs’ self-declared constitutional right to have their taxes collected for “only lawful purposes.”
I do not doubt the earnestness of the lawyers who filed this case. But granting them all the sincerity in the world, it still appears that their abhorrence of Israel’s Gaza war has overwhelmed their legal judgment.
Their case is entirely without legal merit. Their clients lack standing to bring the case. They sued the wrong defendants. No court can grant the relief they have requested. Their claims are barred by a specific provision of the Constitution.
Given that it fails every test of validity, the case will surely be thrown out once a judge takes a glance at it, as should have been apparent to any attorney. And that raises a more disturbing possibility.
Recognizing the likely futility of the case itself, one of the many named plaintiffs explained that the lawsuit “has given people something to rally behind, [with] the lawsuit being a means to shine the spotlight on the role of U.S. tax dollars in the genocide.”
That is an understandable sentiment for a client, but not for a lawyer. Attorneys are prohibited from filing cases merely to rally support or shine spotlights. A lawsuit demands more substance than a press release. There are rules against frivolous litigation, brought solely to attract attention, no matter how heartfelt the cause.
But first the merits — or rather, the lack of merit. The most glaring problem with this case is the “Speech and Debate” clause, found in Article One, Section 6 of the Constitution. It provides that representatives and senators “shall not be questioned in any other place” for speech and debate in Congress. The Supreme Court has consistently interpreted this provision broadly, providing absolute immunity in both civil and criminal cases for all “legislative acts,” including voting.
That should be the end of it. The two representatives have absolute constitutional immunity for their votes, no matter how much they angered some constituents. But the case has more failings than that.
Even if there were some way to overcome congressional immunity (note: there isn’t), the plaintiffs would still lack standing to sue in federal court, under Article III of the Constitution, which requires a “concrete and particularized” injury.
The complaint asserts an “implied right to not have one’s taxes . . . collected for unlawful purposes,” but the Supreme Court has repeatedly denied claims of taxpayer standing, other than under the Establishment Clause of the First Amendment, which has not been raised in this case.
The plaintiffs attempt to establish standing by claiming to have suffered “psychic distress” and “moral injury” caused by Defendants’ votes in favor of arming Israel, including “symptoms such as bouts of uncontrollable weeping, inability to sleep, distractions from work, despair for the future of their children and humanity, inability to experience joy, feelings of guilt, social isolation, and anxiety.”
Even the deepest despair for humanity, however, does not confer standing, for an obvious reason. An “implicit right” to sue over taxation for “unlawful purposes,” even with so-called psychic injury, would wipe out the constitution’s standing requirement.
Upset about expenditures on the Centers for Disease Control? Despondent over appropriations for the IRS? Pained by tax money spent on the Consumer Finance Protection Bureau? The plaintiffs’ theory would allow taxpayer standing to challenge virtually every federal program, based on an “inability to experience joy.”
Even if there were standing (again, there isn’t), the attorneys in this case have still sued the wrong parties. It is the executive branch that spends money, not Congress. The votes by Thompson and Huffman were in favor of appropriations, but the supposed psychic harms presumably occur only when the executive makes the relevant expenditures.
Nonetheless, the complaint seeks “an injunction restraining defendants from providing, facilitating, or coordinating military assistance or financing to Israel.” It is pure fantasy to imagine that a court could enjoin a legislator’s future votes.
I asked attorney Dean Royer and his co-counsel Gina Szeto-Wong how they plan to address the congressional immunity and taxpayer standing issues. Royer replied that “immunity does not extend to a legislator who votes in favor of legislation when they know, or should have known, that the legislation is unlawful.”
Regarding standing, Royer said that Congress may only “tax and spend for the ‘general welfare,’ and that allocating military aid in this manner was not for the general welfare because it constituted a violation of international and federal law barring complicity in genocide.”
Nothing remotely close to such claims has ever been recognized by a U.S. court, and for good reason. If allowed, they would obliterate the relevant constitutional provisions.
Congressional immunity exists precisely to prevent parties from suing representatives for allegedly “unlawful” legislation. It would be a disaster to allow federal courts — including a single Trump-appointed judge in Amarillo — to decide what is or isn’t in the “general welfare.”
I have seldom seen a more frivolous case, advancing theories that range from illogical to absurd, without offering even remotely plausible justifications.
Under Rule 11 of the Federal Rules of Civil Procedure, a lawyer may only bring a case if it is “warranted by existing law,” unless there is “a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Rule 3.1 of the California Rules of Professional Conduct is virtually identical.
At a news conference, Royer said “I am honored to be the lawyer for this class, they are the ones driving this forward. I am simply translating the information into hopefully a language that the court will understand, and to ultimately prevail.”
Clients can be excused, especially in wartime, for placing impassioned and unwarranted hopes in the judicial system. It is the lawyers’ obligation, however, to exercise rational judgment. They must screen claims for actual legal merit, and refrain from frivolous litigation no matter how hard their clients are driving or how much they share the cause.
Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.
