New U.S. Law Challenges Divestment From Israel

President Barack Obama signs anti-divestment legislation

President Barack Obama signs anti-divestment legislation

By Ross Krasner

Photograph of President Barack Obama courtesy of JTA

Last Wednesday President Obama signed the Trade Facilitation and Trade Enforcement Act of 2015, with provisions preventing boycotts and similar economic warfare against Israel.

Congress passed the Act with bipartisan support in both chambers last spring. Thus, opposition to boycotts that are “politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories” is now officially U.S. law.

The bill makes preventing the boycotts, divestment and sanctions campaign against Israel, also known as BDS, a “principal trade negotiating objective” of the United States in trade deals with other countries. It also concludes that such boycotts violate World Trade Organization non-discrimination rules.

In a signing statement the President offered firm opposition to the economic isolation of Israel However, he objected to certain clauses in the bill specifying that the provisions apply to “Israel” and “Israeli-controlled territories.” Obama worried that this language implied tacit U.S. support of expanded Israeli settlement construction. Without the language “Israeli controlled territories,” under U.S. foreign policy the provisions would not protect companies in the Golan, consensus settlements, or even West Jerusalem, a generally accepted part of Israel in any future peace agreement.

Congress has the ultimate power to regulate foreign commerce, and the President cannot line item veto individual parts of a bill in which he is signing. Therefore Obama’s signing statement, which did not make any indication that he found parts of the law unenforceable or unconstitutional, registers certain disagreements but does not change the legislation.

According to Northwestern University law professor Eugene Kontorovich, the language used in this bill is in fact keeping U.S. policy consistent with established precedent “as articulated in several laws including the 1979 amendments to the Export Administration Act.” However, President Obama the left wing J-street Group– who adamantly oppose settlement expansion- view the equal protection of companies in Israel and Israel controlled territories as a change in U.S. policy toward Israel. Despite objections to certain provisions, the law will hopefully manage to improve trade and cement close ties between America and its longstanding ally.

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