The signing of a trade bill last week that included provisions specifically requiring U.S. trade negotiators to oppose European boycotts of Israel was a signal defeat for the BDS — boycott, divest, sanction — movement. The willingness of a bipartisan majority of Congress to label efforts to wage economic war on the Jewish state as inconsistent with American law was especially important since it rightly dismissed any distinction between boycotts of all of Israel and those that only target Jewish communities in the West Bank and Jerusalem. But it appears celebrations about that victory were premature. Comments by State Department spokesman John Kirby let it be known that, although President Obama signed the bill, he won’t enforce it. As it has on so many other issues, such as immigration, this administration regards laws that it likes differently from those it doesn’t and will simply ignore the latter.
The statement by Kirby, which was related on Twitter by the Associated Press’ Matt Lee and picked up by Lori Lowenthal Marcus of the Jewish Press, makes it clear that laws passed by Congress and signed by the president are null and void if they conflict with administration policy. According to Kirby:
By conflating Israel and “Israeli-controlled territories,” a provision of the Trade Promotion Authority legislation runs counter to longstanding U.S. policy towards the occupied territories, include with regard to settlement activity. 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.
Kirby is right that the U.S. government has never formally recognized the right of Jews to live in Jerusalem or the West Bank. But he’s wrong to assert that President Obama’s policies are entirely consistent with that of his predecessors. This administration has made an issue of the existence of 40-year-old neighborhoods in Jerusalem in a way that is unprecedented since it treats the presence of Jews in parts of Israel’s capital as being just as illegitimate as the most remote West Bank settlement. Moreover, no previous administration has ever considered boycotts of Israel, whether of the entire country or of the half million Jews who live on the other side of the 1967 lines as legitimate. Kirby’s statement is an implicit endorsement of some Israel boycotts while opposing others.
Nor does the focus on settlements aid the cause of peace as the administration claims. Israel has already made far-reaching offers of withdrawal from the West Bank including statehood that has been repeatedly rejected by the Palestinians. The refusal to recognize the legitimacy of a Jewish state no matter where its borders are drawn is the obstacle to peace, not the presence of Jews in Jerusalem or the West Bank.
As I have written previously, the notion that it is okay to boycott some Jews but not others is one that sends a dangerous signal to Israel’s enemies. Once it is deemed lawful to anathematize parts of the Israeli economy, it is a slippery slope to treating all such boycotts as legitimate. Since the original Arab boycott that sought to strangle the Israeli economy was only broken by U.S. efforts to ban trade with those who enforced the boycott, a Congressional effort to move against BDS now was entirely in keeping with longstanding U.S. policy. But since this administration is obsessed with the idea of banning settlements, it is prepared to let a Europe in which a rising tide of anti-Semitism has fueled support for BDS activity get away with such boycotts.
This is a disgrace, but any thought of a legal challenge to the decision is a waste of time. Since the U.S. Supreme Court gave President Obama the right to invalidate laws about Israeli rights to Jerusalem in a decision handed down earlier this month, he can be confident that he will be granted similar latitude to ignore anti-BDS law.
But it isn’t just friends of Israel who should be outraged about this decision. This is an administration that views law enforcement as an option, not an imperative. Just as he did on immigration, where he ignored the will of Congress and used executive orders to effectively annul legislation by not enforcing those concerning illegal immigrants, President Obama regards his personal opinion as being above the law. That is a dangerous tendency to substitute his preferences for the rule of law ought to scare all Americans, regardless of their views about trade or Israel.