By Eugene Kontorovich February 25 at 3:33 PM
Congress recently passed the Trade Facilitation and Trade Enforcement Act of 2015. The massive trade and customs bill contains, inter alia, provisions designed to oppose boycotts and similar economic warfare against Israel. Yesterday, President Obama signed the bill into law.
While signing it, he made a statement, objecting to parts of the law that oppose boycotts of Jewish Israeli enterprises in the West Bank and Golan Heights. (The law’s anti-boycott protections apply to “Israel” and “Israeli-controlled territories.”)
The actual effect of the signing statement, however, is nil. It does not in any way limit the reach or finality of the law. Indeed, the statement does not even purport that parts of the law are unconstitutional or unenforceable. Nor could the president easily have done so: Congress in passing the law used core Article I powers that the president cannot unilaterally restrict — in particular, the powers to regulate foreign commerce and the federal courts.
Thus after Obama’s signature, the provisions of the law that apply to Israeli-controlled territory are as much binding legislation as the rest of the bill.
It is well-settled that the president cannot veto individual provisions of a law — they either sign the whole thing into law, or reject it entirely. However, there is a practice whereby presidents, when signing a bill, issue a “signing statement.” These typically say that the president intends to not enforce parts of the law because he sees it as unconstitutional.
Crucially, the statement makes no claim that the law is unconstitutional. Indeed, it is quite modest and only addresses the administration’s enforcement of one particular set of provisions in the law:
my Administration will interpret and implement the provisions in the Act that purport to direct the Executive to seek to negotiate and enter into particular international agreements (section 414(a)(1)) or to take certain positions in international negotiations with respect to international agreements with foreign countries not qualifying for trade authorities procedures (sections 108(b), 414(a)(2), 415, and 909(c)) in a manner that does not interfere with my constitutional authority to conduct diplomacy.
The relevant provisions require that the president make preventing such boycotts a “principal trade negotiating objective” of the United States in dealings with other countries. Under the Constitution, the president has the authority to “make” treaties, and Congress cannot dictate their terms or micromanage their negotiation. Congress can of course tell the president what to keep in mind, which is exactly what the law does. And the signing statement merely makes clear it will be interpreted in the latter, and not the former, way.
Such a statement was probably redundant, as the relevant provisions inherently give the president vast wiggle room, since resisting boycotts is among many such trade negotiation priorities, and the law does not purport to dictate how much emphasis to place on it or how to trade it off against other objectives. In the normal course of events, the president could easily have ignored this in practice, and his statement adds little to that. Indeed, the hollow signing statement is more a venting of pique — that the Israel provisions were put into a bill too big to veto — than constitutional principle.
Indeed, Obama wisely made no constitutional argument about other key provisions of the law — because they could not be seriously made. The first two sections of the law are merely statements of policy and findings by Congress. These broadly oppose economic boycotts of Israel and territories under its control, and importantly, conclude that such measures violate WTO non-discrimination rules. As declaratory findings by Congress, there is nothing the president can do to undo them.
The next paragraph requires the president to make a biannual report on boycott efforts, and the United States’ response to them. This is a pure reporting requirement. Just because the president might disagree with Congress about the merit of the activities being reported — he likes boycotts, Congress does not — this in no way affects Congress’s ability to require reporting. The reporting itself is entirely neutral.
The law deals with trade with Israel, and restrictions on such trade (boycotts). While the president indeed has a major role in foreign affairs, legislating on issues of “foreign commerce” is a sole power of Congress. All trade laws have significant foreign policy and diplomatic consequences. Where trade and diplomacy conflict, Congress’s specific Foreign Commerce power trumps any vague presidential “diplomacy” power. No one has ever suggested it would be unconstitutional for Congress to liberalize trade with a country that the president seeks to pressure or isolate.
Moreover, one of the main operative provisions of the law is directed not to the executive, but to the judiciary. Here, the president has no constitutional prerogative to assert. The provision bans the enforcement of foreign judgments against Israeli entities that are based on the mistaken notion that doing business in Israeli-controlled territories is illegal. This law on the enforceability of foreign judgments is part of Congress’s exclusive legislative power to regulate the jurisdiction, rules of decision and procedures of the federal courts. This power is in no way shared with the president.
Thus as of now, U.S. law clearly opposes 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.”
That is the legal side of the matter. In a subsequent post, I will discuss the administration’s policy objections to the law, which are quite novel and depend on significant mischaracterization of both the law and past U.S. policy.
Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.