at 27-31.) Plaintiffs maintain that Defendants have supported
and continue to support "the enemies of the Jewish inhabitants
of Palestine, including such terrorist organizations as the
Palestine Liberation Organization . . . and encourage the
establishment of a state in Palestine . . . in violation of HJR
322." (Pls.' Resp. to Mot. to Dismiss at 1.) Additionally,
Plaintiffs contend that the Executive Branch of the U.S.
Government, acting in excess of its constitutional powers and in
violation of HJR 322, has taken steps to "weaken and paralyze"
Israel's inhabitants. (Id.) Defendants' actions are alleged to
pose a continuing threat of immediate physical danger to the
HJR 322 declares a general policy supporting the creation of a
homeland for the Jewish people. The measure does not give rise
to any judicially enforceable rights. Although the
unavailability of a private right of action under HJR 322 is
alone sufficient to grant Defendants' motion to dismiss, further
bases for dismissal are discussed below.
A. Private Right of Action
Congress did not create a private right of action under HJR
322. Traditionally courts look first to the face of a
legislative enactment to determine whether or not a private
right of action exists. On its face, HJR 322 includes no
language indicating that any party, public or private, may bring
suit thereunder. Absent such explicit language, courts may
nevertheless infer a private right of action if clearly intended
by Congress. See Cannon v. Univ. of Chicago, 441 U.S. 677, 99
S.Ct. 1946, 60 L.Ed.2d 560 (1979) (acknowledging that courts may
infer private rights of action where appropriate).
In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26
(1975), the Supreme Court established a four-factor analysis for
determining whether or not Congress intended to make available a
private right of action. Those factors are: (1) whether the
plaintiff is a member of the class for whose benefit the statute
was enacted; (2) whether there is any indication of legislative
intent, explicit or implicit, to create or deny such a remedy;
(3) whether the private right of action would be consistent with
or frustrate the purposes of the legislative scheme; and (4)
whether the cause of action is traditionally relegated to state
law in an area basically the concern of the States, so that it
would be inappropriate to infer a cause of action based solely
on federal law. See Cort, 422 U.S. at 78, 95 S.Ct. 2080. In
private right of action cases decided after Cort v. Ash, the
Supreme Court has stressed the centrality of legislative intent.
The first, third and fourth Cort factors are thus viewed as
mere proxies for the second. See, e.g., Thompson v. Thompson,
484 U.S. 174, 179, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988); Touche
Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479,
61 L.Ed.2d 82 (1979); McClellan v. Cablevision of Conn., Inc.,
149 F.3d 161, 164 (2d Cir. 1998); DiLaura v. Power Auth. of
N.Y., 982 F.2d 73, 77 (2d Cir. 1992).
The legislative history of HJR 322 gives no indication of any
intent on the part of Congress to provide a private right of
action. The report issued by the Committee on Foreign Affairs in
connection with HJR 322 makes clear that the purpose of the
resolution was to articulate a general policy favoring the
creation of a Jewish state.*fn1 "This report expresses our
moral interest and our favorable attitude toward the
establishment in Palestine of a national home for the Jewish
people. . . . The realization of this hope should be given the
moral encouragement of the American people speaking through
their Representatives in Congress." H.R.Rep. No. 1038, at 1-3
(1922) (emphasis added). Nothing more is even hinted at in the
Committee Report, which declares that HJR 322 "commits us to no
foreign obligation or entanglement." Id. at 1. This
unambiguous curtailment of the scope of HJR 322 is conclusive:
"[u]nless congressional intent is clearly stated or can
reasonably be inferred, `the essential predicate for
implication of a private remedy simply does not exist.'"
Wedlake v. Power Azuth, of the State of N.Y., 982 F.2d 73, 77
(2d Cir. 1992) (emphasis added) (citing Karahalios v. Nat.
Fed'n of Fed. Employees, Local 1263, 489 U.S. 527, 533, 109
S.Ct. 1282, 103 L.Ed.2d 539 (1989)). Because Congress' intent is
unambiguous, this court need not consider the three remaining
Cort factors. See Merrill Lynch, Fenner & Smith, Inc. v.
Czrran, 456 U.S. 353, 388, 102 S.Ct. 1825, 72 L.Ed.2d 182
(1982) (quoting Cal. v. Sierra Club, 451 U.S. 287, 302, 101
S.Ct. 1775, 68 L.Ed.2d 101 (1981)). In an excess of caution,
however, I touch briefly on each in the following paragraphs.
The first Cort factor asks whether Plainitffs are members of
the class for whose benefit the statute was passed. A close
reading of HJR 322 demonstrates that it was not passed for the
benefit of any specific class of persons. Rather, its moral
encouragement was directed at a certain ideal, namely, the
creation of a Jewish state. Whether such a goal could reasonably
be said to establish and encompass a distinct class of intended
beneficiaries is doubtful, not least of all because when
Congress passed HJR 322, the vision of an independent Jewish
homeland was widely shared. See H.R.Rep. No. 1038, at 1-3. But
that is an historical, rather than a judicial, inquiry. The
adjudication of this case cannot, in any event, be said to turn
on its outcome, since Congress gave no indication that HJR 322
was intended to protect anyone.
The third Cort factor, whether a private right of action
would be consistent with the legislative scheme, further
demonstrates the futility of trying to infer a private right of
action here. HJR 322 does not set forth a legislative scheme; it
is a statement of policy, and nothing more. There is thus no
legislative scheme to which a private right of action could
The final Cort factor, consideration of the relevance of
state law, is not instructive in the analysis of HJR 322 because
the states' role in conducting foreign policy is minimized under
the Federal Constitution. Consideration of all of the Cort
factors, therefore, necessitates my conclusion that Congress did
not intend to include a private right of action under HJR 322.
Accordingly, there is no basis for Plaintiffs' suit.*fn2
B. Political Question
In order to grant the relief sought in this case, this court
would be required to redirect the course of foreign policy by
instructing the President, Vice President, Secretary of State,
and the Department of State how to conduct foreign relations
touching upon the state of Israel. Separation of powers concerns
counsel against the courts attempting to give such instruction.
Where, as here, relief cannot be granted except by undermining
the constitutionally-based separation of powers, prudential
considerations necessitate eschewing adjudication on the grounds
that such cases are nonjusticiable.
The political question doctrine is "primarily a function of
the separation of powers." Baker v. Carr, 369 U.S. 186, 210,
82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The Supreme Court has
consistently adhered to the policy articulated in Oetjen v.
Cent. Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed.
726 (1918), that "[t]he conduct of the foreign relations of our
Government is committed by the Constitution to the Executive and
Legislative — `the political' — Departments of the Government,
and the propriety of what may be done in the exercise of this
political power is not subject to judicial inquiry or decision."
As the Supreme Court stated in Chicago & Southern Air Lines v.
Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed.
The very nature of executive decisions as to foreign
policy is political, not judicial. Such decisions are
wholly confided by our Constitution to the political
departments of the government, Executive and
Legislative. They are delicate, complex and involve
large elements of prophecy. They are and should be
undertaken only by those directly responsible to the
people whose welfare they advance or imperil. They
are decisions of a kind for which the Judiciary has
neither aptitude, facilities nor responsibility and
which has long been held to belong in the domain of
political power not subject to judicial intrusion or
The Baker Court set out to reign in the many "analytical
threads that make up the political question doctrine" by laying
out six criteria for determining whether a political question is
a prominent aspect of a case and thus nonjusticiable:
[A] textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or  a lack of judicially discoverable
and manageable standards for resolving it; or  the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial
discretion; or  the impossibility of a court's
undertaking independent resolution without expressing
lack of the respect due coordinate branches of
government; or  an unusual need for unquestioning
adherence to a political decision already made; or
 the potentiality of embarrassment from the
multifarious pronouncements by various departments on
369 U.S. at 217, 82 S.Ct. 691.