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The Constitutional Implications of California’s Anti-BDS Legislation

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The California Legislature recently introduced two bills intended to suppress the Boycott, Divestment, and Sanctions (BDS) campaign for Palestinian freedom and equal rights. Assembly bill 1551 is unconstitutional on its face.  Assembly Bill 1552 is drafted more neutrally, but still might well be applied in a discriminatory manner that targets BDS movement and the Palestinian-American community. According to the California Legislature’s website, both bills may be heard in committee this week.

The “California-Israel Commerce Protection Act” (AB-1551) would amend existing state law to require the state of California to divest from companies that boycott Israel and companies doing business in the Palestinian territories that Israel illegally occupies.  California pensions hold approximately $500 billion. Consequently, the bill could have an extremely detrimental effect on the BDS Movement, which targets products and companies (Israeli and international) that profit from the violation of Palestinian rights.

Assembly Bill 1551 adds the following problematic language to the California Code: Compliance with the boycott of Israel” means taking any action in compliance with an action by a foreign government, international organization, or affiliated agency of an international organization, that is politically motivated and intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories.

Yet politically motivated boycotts are protected expression under the First Amendment of the Constitution.  Boycotting products and companies that profit from the violation of Palestinian rights is comparable to when black Americans led by the NAACP boycotted white -owned business that discriminated against black people in 1966.  The African Americans were not boycotting white business owners because of their race, but because they discriminated against black people. In  NAACP v. Claiborne Hardware,  the Supreme Court held that the “right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself.”

Similarly, the purpose of the BDS movement is to pressure Israel to comply with international law and effectuate rights already guaranteed under international law. The International Court of Justice articulated these rights and Israel’s violations in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. Palestinians are every bit as entitled to equal rights as African Americans battling Jim Crow and black South Africans struggling against apartheid. Americans concerned about Israel’s theft of Palestinian private property, demolition of Palestinian homes, and the deeply disturbing killing of hundreds of children in Gaza in the summer of 2014 should have every right to voice their opinion and take action through BDS.

One of the most troubling provisions of the bill is the one prohibiting boycotts targeting persons doing business in “Israeli-controlled territories.”  The current federal anti-boycott laws prohibit compliance with the Arab League’s boycott of Israel, including “discrimination against other persons based on race, religion, sex, national origin, or nationality.”  However, the California legislation appears intended to prohibit even boycotts targeting companies that profit from Israel’s illegal occupation of Palestinian territories, including the West Bank.  This provision infringes on authority that is exclusive to the Executive Branch of government.

In Zivotofksy v. Kerry, the Supreme Court held that a law enacted by Congress infringed on the President’s constitutional power to recognize foreign states.  The statute at issue, Section 214(d) of the Foreign Relations Authorization Act of 2003, directed the Secretary of State, upon request, to designate “Israel” as the place of birth on the passport of a U.S. citizen who is born in Jerusalem.  Essentially, the statute claimed that Jerusalem was part of Israel in contradiction to the President’s longstanding foreign policy position of neutrality regarding the status of Jerusalem.  The California Legislature goes beyond overreach this by attempting to alter foreign policy with respect to Palestinian territories that are illegally controlled by Israel.

Rather than simply being neutral with regard to Israel’s illegal occupation of Palestinian territories, the President of the United States and the State Department have long opposed and condemned Israel’s settlement activities as violations of international law, including the Fourth Geneva Convention. The Executive Branch has made a clear distinction between boycotts of Israel and boycotts of illegal Israeli settlements.  In June 2015, the State Department criticized Congress for wrongly conflating Israel and the illegal Israeli settlements following the enactment of the Congressional Trade Priorities and Accountability Act of 2015.

Every U.S. administration since 1967 – Democrat and Republican alike – has opposed Israeli settlement activity beyond the 1967 lines. This administration is no different. The U.S. government has never defended or supported Israeli settlements and activity associated with them and, by extension, does not pursue policies or activities that would legitimize them.” – State Department spokesman John Kirby

If passed, California Assembly Bill 1551 should clearly be struck down as unconstitutional because it impermissibly infringes on federal authority over foreign policy. In addition to chilling free speech, the bill attempts to protect and legitimize Israeli settlements in conflict with the express and longstanding foreign policy of the United States. Most importantly, the legislation impedes peaceful efforts to secure equal rights for Palestinians.

California’s politicians should step back from the brink of a measure that would impede Palestinian freedom and violate the First Amendment rights of Americans.

Blog by ADC Staff Attorney Whit Cox

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