The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Obama signed into law this week important measures opposing boycotts of Israel. While signing the law, he complained about its application to "Israeli-controlled territories." He claimed the provisions were "contrary to longstanding bipartisan United States policy, including with regard to the treatment of settlements."
In a previous post, I explained how the signing statement does not change, or purport to change, the binding legal force of the law. But it is more important as a political statement, and as such it is wrong on the facts. The law does not, as he complained, "conflat[e]" settlements with Israel proper. Indeed, it distinguishes sharply between them. The law speaks of two distinct areas: "Israel" and "Israeli-controlled territories." That means that those " territories" are something different from "Israel"—precisely the position of the administration. To be sure, the law opposes boycotts of both areas, but that is not conflating them, any more than opposing terrorism, or the use of foreign armed force, against both areas would be conflating them.
Rather, the law treats Israel and the settlements as distinct. However, in terms of certain foreign commerce issues, it applies the same legislative approach. Obama's definition of conflation means that Congress is prohibited from enacting the same foreign commerce legislation for these two areas because the president does not like it on policy grounds—an absolutely unheard-of limitation on the foreign commerce power. Indeed, Congress has already given the same customs treatment to both, and otherwise applied identical rules to both, without any complaints about conflation.
The real conflation here is on the part of the White House—and J Street and Peace Now, which provided its talking points. They have conflated opposition to settlements with openness to using boycotts against them.
But there is a huge difference between opposing settlements and supporting the boycott of settlements. Indeed, much of the Israeli and U.S. Jewish left wing takes that precise position: opposing settlements, as well as boycotts of them, because such boycotts are manifestly discriminatory. There are many things the United States opposes—Moroccan control of Western Sahara, for example—where the opposition does not mean support for boycotts. Indeed, the Administration has made clear that while it strongly opposes terrorism, it also opposes boycotts of Iran, and indeed favors greater economic engagement with Iran, even while acknowledging that proceeds will be diverted to support terrorism.
The administration is even wrong about the fact that the law contradicts U.S. policy toward the settlements. True, the White House across multiple administrations has opposed Israel allowing Jews to live in the West Bank, and criticized the growth of such communities. But at the same time, the United States has strongly insisted that the conflict be solved through bilateral negotiations, not coercion. Boycotts are not a diplomatic, but rather a coercive, tool and thus contradict long-standing U.S. policy, which Obama is seeking to rewrite in Soviet fashion: The new party line has always been the party line.
Finally, the administration's implicit endorsement of boycotts of Israeli companies (boycotts that in practice are only directed at Jewish-owned companies in the West Bank) is not just about "settlements." It is about areas within the Green Line as well. Because the administration does not regard West Jerusalem as part of Israel, not enforcing the "Israeli-controlled territories" language means the administration will not resist, and implicitly supports, boycotts of enterprises within the 1949 Armistice Lines.
Thus the real significance of the statement is its attempt to redefine U.S. policy, prospectively and retroactively. Whether that succeeds depends on events in November.