Legislation boycotting the anti-Israel boycotters proliferates

Legislation boycotting the anti-Israel boycotters proliferates

There has been quite a bit of BDS-related legislative activity in the several weeks, with two anti-BDS measures moving through Congress, and activity in several state legislatures.  While the legislatures universally oppose BDS, President Obama has weighed in in opposition to Congress’s pro-Israel legislation.

Federal Anti-BDS Legislation

First, Wednesday afternoon Senators Mark Kirk (R. – IL) and Joe Manchin (D. – WV) and Representatives Bob Dold (R. – IL) and Juan Vargas (D. – CA) filed a bill to help states divest from BDS-supporting companies.  According to Adam Kredo of the Washington Free Beacon:

The new bill, which was filed Wednesday afternoon, marks an aggressive push by lawmakers on both sides of the aisle to combat the growing Boycott, Divestment, and Sanctions movement, otherwise known as BDS, which advocates in favor of economic war against the Jewish state.

The bill would provide legal shelter to states seeking to divest taxpayer funds from any company that has backed the BDS movement. It also would set a legal precedent granting safe harbor for private investment companies to do the same.

The legislation comes amid a new move by the European Union to single out all Jewish goods produced in disputed areas of the West Bank, an effort that the Obama administration has supported.

Lawmakers leading the anti-BDS charge told the Free Beacon that the bill is a shot across the bow to a growing coalition of anti-Israel organizations that have lobbied state-level officials to boycott the Jewish state and products produced there.

Dold and Kirk both cited a need to express U.S. solidarity with Israel in the wake of the European Union’s recent move to label imports from the disputed West Bank.

Federal Support For Trade With Israel

On Thursday, the Senate passed the Trade Facilitation and Trade Enforcement Act of 2015 (“TFTEA”), which contains a provision supporting U.S.-Israel trade.  § 909 itself a fairly substantial piece of legislation.

In § 909(a), Congress finds, among others:

(1) Israel is America’s dependable, democratic ally in the Middle East—an area of paramount strategic importance to the United States. . . .

(4) More than $45,000,000,000 in goods and services is traded annually between the two countries, in addition to roughly $10,000,000,000 in United States foreign direct investment in Israel. . .

(6) It has been the policy of the United States Government to combat all elements of the Arab League Boycott of Israel by— . . .

(B) enactment of relevant sections of the Export Administration Act of 1979 (50 U.S.C. 4601 et seq.) (as continued in effect pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), including sections to ensure foreign persons comply with applicable reporting requirements relating to the Boycott;

(C) enactment of the Tax Reform Act of 1976 (Public Law 94–455; 90 Stat. 1520) that denies certain tax benefits to entities abiding by the Boycott;

(D) ensuring through free trade agreements with Bahrain and Oman that such countries no longer participate in the Boycott; and

(E) ensuring as a condition of membership in the World Trade Organization that Saudi Arabia no longer enforces the secondary or tertiary elements of the Boycott.

In § 909(b), TFTEA states the policy that:

(4) opposes politically motivated actions that penalize or otherwise limit commercial relations specifically with Israel, such as boycotts of, divestment from, or sanctions against Israel;

(5) notes that boycotts of, divestment from, and sanctions against Israel by governments, governmental bodies, quasi-governmental bodies, international organizations, and other such entities are contrary to principle of nondiscrimination under the GATT 1994 (as defined in section 2(1)(B) of the Uruguay Round Agreements Act (19 U.S.C. 3501(1)(B)));

(6) encourages the inclusion of politically motivated actions that penalize or otherwise limit commercial relations specifically with Israel such as boycotts of, divestment from, or sanctions against Israel as a topic of discussion at the U.S.-Israel Joint Economic Development Group (JEDG) to support the strengthening of the United States-Israel commercial relationship and combat any commercial discrimination against Israel; and

(7) supports efforts to prevent investigations or prosecutions by governments or international organizations of United States persons solely on the basis of such persons doing business with Israel, with Israeli entities, or in any territory controlled by Israel.

(Emphasis added.)  § 909(c) then lists “Principal trade negotiating objectives of the United States:”

(1) COMMERCIAL PARTNERSHIPS.—Among the principal trade negotiating objectives of the United States for proposed trade agreements with foreign countries regarding commercial partnerships are the following: . . .

(B) To discourage politically motivated boycotts of, divestment from, and sanctions against Israel and to seek the elimination of politically motivated nontariff barriers on Israeli goods, services, or other commerce imposed on Israel.

(C) To seek the elimination of state-sponsored unsanctioned foreign boycotts of Israel, or compliance with the Arab League Boycott of Israel, by prospective trading partners.

Finally, § 909(d)(2) requires the President to submit a report to Congress on “politically motivated acts of boycott of, divestment from, and sanctions against Israel,” including:

(A) A description of the establishment of barriers to trade, including nontariff barriers, investment, or commerce by foreign countries or international organizations against United States persons operating or doing business in Israel, with Israeli entities, or in Israeli-controlled territories. . .

(C) A description of specific steps being taken by the United States to prevent investigations or prosecutions by governments or international organizations of United States persons solely on the basis of such persons doing business with Israel, with Israeli entities, or in Israeli-controlled territories.

(D) Decisions by foreign persons, including corporate entities and state-affiliated financial institutions, that limit or prohibit economic relations with Israel or persons doing business in Israel or in any territory controlled by Israel.

(Emphasis added.)  Finally, TFTEA § 909(e) prohibits U.S. courts from enforcing certain foreign judgments effectively banning Israeli economic activity:

(e) Certain foreign judgments against United States persons.—Notwithstanding any other provision of law, no domestic court shall recognize or enforce any foreign judgment entered against a United States person that conducts business operations in Israel, or any territory controlled by Israel, if the domestic court determines that the foreign judgment eis based, in whole or in part, on a determination by a foreign court that the United States person’s conducting business operations in Israel or any territory controlled by Israel or with Israeli entities constitutes a violation of law.

(Emphasis added.)  The Times of Israel reported:

“The provision puts the US firmly on record opposing BDS and supporting enhanced commercial ties between the United States and Israel,” AIPAC said in a statement Thursday. “This measure builds on the important work of Congress … passing into law firm anti-BDS negotiating objectives for American trade negotiators.”

Thursday night, the White House released a statement criticizing the bill:

As with any bipartisan compromise legislation, there are provisions in this bill that we do not support, including a provision that contravenes longstanding U.S. policy towards Israel and the occupied territories, including with regard to Israeli settlement activity.

The President’s gripe is TFTEA’s treatment of Israel-proper and “territory controlled by Israel” alike.  The White House statement nonetheless indicates that President Obama will sign the bill into law because of its many other pro-trade provisions and “to help strengthen enforcement of the rules and level the playing field for American workers and businesses.”

Northwestern Law Professor Eugene Kontorovich observed:

It is amazing to single out this tiny bit from huge deal w lots of controversial parts -but WH NOT “rejecting” deal https://t.co/ep4c5Lnxbv

— Eugene Kontorovich (@EVKontorovich) February 12, 2016

There may be signing statement, but it wldn’t have legal effect, just for spite. Law is exercise of Congress’s Foreign Trade powers @Kredo0 — Eugene Kontorovich (@EVKontorovich) February 12, 2016

President Obama has made signing statements a standard tool for questioning legislation’s constitutionality, and may seek to effectively and unconstitutionally veto the Israel portion of TFTEA.

New York

In December I discussed New York’s proposed anti-BDS law.  Last month the New York Senate passed the legislation which would prevent companies engaging in BDS from contracting with the state and would divest various state funds from such companies.  The bill must pass the state Assembly before going to the Governor.

Indiana

Also last month, the Indiana House passed an anti-BDS bill.  The Bill now must pass the Senate before going to the Governor.

In HB 1378 the Indiana General Assembly found:

(4) The fundamental principles of the United States are offended by attempts to:

(A) delegitimize Israel’s existence;

(B) demonize the Jewish state; or

(C) undermine the Jewish people’s right to self 3 determination;

through an international campaign to boycott, divest from, or 5 sanction Israel.

(§ 1(4).)  The legislation also notes:

(5) Efforts to promote an international campaign to boycott, divest from, or sanction Israel:

(A) increasingly occur on college and university campuses nationwide, leading to a climate of intimidation, fear, and violence on campuses in Indiana;

(B) disproportionately harm thousands of Palestinian workers employed by Israeli owned firms; and

(C) are antithetical and deeply damaging to the cause of peace, justice, equality, democracy, and human rights for all people in the Middle East.

(§ 1(5).)  The legislation defines “boycott, divest from, or sanction Israel activity” as:

action or inaction that:

(1) furthers;

(2) coordinates with; or

(3) acquiesces in;

an effort by another person to penalize, inflict economic harm on, or otherwise limit commercial relations with the Jewish state of Israel or businesses that are based in the Jewish state of Israel or territories controlled by the Jewish state of Israel.

(§ 3.)  If passed, the Indiana Bill would, generally speaking, instruct the state’s public retirement system to divest from companies engaging in BDS.  (§ 16.)

Maryland

In Maryland, BDS supporters are opposing a bill that would legalize Airbnb in Montgomery County because the online, peer-to-peer rental Airbnb includes properties in the disputed West Bank.  Typically, BDS promoters use inflated and patently false language to demonize Israel, saying Airbnb “should not be legalized in Montgomery County until they end their profiteering off of international war-crimes.”

Virginia

Finally, the Virginia House has passed an anti-BDS resolution and is considering binding legislation.  HJ 177, the non-binding resolution now under consideration by the state Senate provides:

[Resolved,] the General Assembly condemn the international Boycott, Divestment, and Sanctions movement and its activities in Virginia as its agenda is inherently antithetical and deeply damaging to the causes of peace, justice, equality, democracy, and human rights for all peoples in the Middle East; and, be it

RESOLVED FURTHER, That the members of the General Assembly consider the international Boycott, Divestment, and Sanctions movement as seeking to undermine efforts to achieve a negotiated two-state solution and the right of Israelis and Palestinians to self-determination; and, be it

RESOLVED FURTHER, That the Commonwealth of Virginia recognize the importance of trade and commercial relations to the pursuit and sustainability of peace and support efforts to bring together the United States, the State of Israel, and the Palestinian Authority in an enhanced commercial relationship for the betterment of the region; and, be it

RESOLVED FINALLY, That the members of the General Assembly reaffirm their support for the State of Israel and oppose all attempts to economically and politically isolate Israel within the international arena, including promotion of economic, cultural, and academic boycotts, and all efforts to assault the legitimacy of the State of Israel as the sovereign homeland of the Jewish people.

The binding legislation that neither Virginia chamber has acted upon would require state agencies to include a provision in all contracts with than $10,000 stating that the contractor would not engage in BDS, would not contract with any other entity engaging in BDS and would impose the same anti-BDS on any of its own sub-contractors or vendors.

Summary

All of this is good progress.  The Federal legislation has the greatest potential impact because of the federal government’s incredible power of the purse.

Don’t underestimate the proliferation of state anti-BDS laws, though.  There is a different sort of power to the proliferation of state laws, as they in many instances are more responsive to and more directly reflect voters’ beliefs.

The negatives are that legislators at both the state and federal level must take the time and devote the resources to a campaign rooted in misinformation and anti-Semitism, and that President Obama went out of his way once again to emphasize his disagreements with Israel in a context where it was easily avoidable.  It may be that he will also try to undermine TFTEA’s pro-Israel elements.

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