So where does the Obama administration stand on BDS? That’s how one might characterize the question that could shape up as the next constitutional test of U.S. President Barack Obama’s foreign policy powers regarding Israel. The State Department has signaled that it won’t enforce language of the latest trade bill designed to discourage boycotts against territories controlled by Israel. If so, the legal battle could make the Jerusalem passport case look like a game of constitutional tiddlywinks.
A good dispatch on this head was put up by the Washington Post Friday in a wire to its constitutional blog, the Volokh Conspiracy, from Eugene Kontorovich. He is a Northwestern University law professor who has emerged as one of the cagiest commentators on Israel. He clearly sees trouble ahead in the wake of the State Department’s suggestion that it disapproves of language in the trade bill that discourages boycotts of “business in Israel or in Israeli-controlled territories.”
If the president “were considering not enforcing the law,” Professor Kontorovich writes, “it would be extraordinary constitutional usurpation by the Executive, effectively giving State Department spokesmen line-item veto power over enacted trade laws.” The Constitution gives the president the power to veto laws passed by Congress, but whether a president can veto only certain lines in a law — the so-called “line-item” veto — has been one of the most bitter battles ever waged over the American parchment.
It was shrewd of Kontorovich to put it that way, because the Supreme Court has, at least so far, taken a dim view of attempts to legislate a line-item veto. He thinks the State Department is emboldened by its victory in the Supreme Court in the so-called Jerusalem passport case, known as Zivotofsky v. Kerry, in which the justices denied Congress the power to require the president to issue to an American born in Jerusalem a passport stating that he had been born in Israel. Kontorovich co-authored a brief on the losing side.
Legislation in respect of trade policy, though, is an entirely different kettle of laws. For one thing, in contradistinction to passports, there is no ambiguity on to whom the Constitution grants the power to regulate commerce. It is the third major power granted to Congress (after the power to tax and the power to borrow). Congress shall have the power, the Constitution says in no uncertain terms, “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Founding Fathers couldn’t get more plain than that, though constitutional clarity has never slowed down a liberal.
In the trade bill, one of the ways Congress exercises this authority is to declare its intention to “discourage politically motivated actions to boycott, divest from, or sanction Israel.” Alarmed at this, the State Department has suggested the law seeks to conflate Israel and the territories. It is being egged on by, among others, Americans for Peace Now, which calls the anti-boycott language in the Fast Track trade promotion measure “just one example” of a campaign to legislate U.S. policy to support and protect settlements, under the guise of “fighting BDS targeting Israel” and bemoans an effort to “conflate Israel and the settlements.”
Yet Kontorovich points out that the new legislation actually does the opposite; it draws a distinction between Israel and “Israeli-controlled territories.” It lays down an anti-boycott policy for each and is evidence that the authors of the trade bill are onto the game BDS is playing. No doubt the Supreme Court can be a heartbreaker, but in Zivotofsky the court was dealing mainly with the so-called “reception power,” the president’s power to receive ambassadors and related duties.
The grant of the power to regulate commerce with foreign nations, though, is so clearly to Congress, rather than to the president, that no one need feel shy about calling the administration in court on this head. Particularly because Congress went to the trouble to mark that it was not declaring the territories to be “in” Israel, as the Zivotofsky family sought to have Jerusalem listed by implication. The trade law is regulating commerce with Israel and, separately and without getting into the sovereignty question, with the territories it controls.
At the moment, the president has left all this to the State Department spokesmen. That in and of itself is a kind of condescension. It may be because the Obama administration is preoccupied with its effort to appease Iran. Or it may be because this is an election year, and the Democratic frontrunner, Hillary Clinton, is trying to posture as a more pro-Israel Democrat than the administration in which she served as state secretary. In any event, this is an issue to watch in the months ahead, as nations and organizations hostile to Israel seek to outmaneuver Congress on the trade front.
Seth Lipsky is editor of The New York Sun. He was foreign editor and a member of the editorial board of The Wall Street Journal, founding editor of the Forward and editor from 1990 to 2000.
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