Wisconsin is the latest of two dozen states that have passed laws intended to punish companies and individuals that support the Boycott, Divestment, and Sanctions, or BDS, movement that intends to stop Israel’s oppression of Palestinians. But is this action by states unconstitutional, in light of the Commerce Clause of the U.S. Constitution?
By Mark Anderson
When Wisconsin Gov. Scott Walker (R) issued an executive order Oct. 27 directing state agencies to refrain from engaging with businesses that have “ties to the anti-Israel BDS movement,” the state became the 24th to forbid state contracts and other official activities with companies that they believe boycott Israel.
“We stand firmly against discrimination in any form and we wholly support our friends in Israel,” Walker was quoted as saying by Breitbart News, without explaining how the state defines a company with “ties” to BDS. “I look forward to leading a trade delegation to Israel to foster new trade partnerships between Wisconsin and Israeli businesses.”
That 15-member delegation to which Walker referred was in Israel until Nov. 2.
The executive order states: “Consistent with existing Wisconsin nondiscrimination provisions and regulations governing purchases . . . [state] agencies may not execute a contract with a business entity if that entity is engaging in a boycott of Israel. Further, agencies shall reserve the right to terminate any contract with a business entity that engages in a boycott of Israel during the term of the contract.”
BDS stands for boycott, divestment, and sanctions, a civil-protest tactic adopted by Israel’s critics to work to end its occupation, expansive construction of settlements, and military assaults within Palestine, especially in the Gaza Strip and the West Bank. BDS calls for consumers and companies in the U.S. and abroad to not buy Israeli made products and to curtail investments in and cease overall business with Israeli companies.
According to investigators such as Alison Weir, a former journalist who operates the “IfAmericansKnew. org” website about Israel-Palestine issues, lopsided press portrayals of the situation there have gravely aggravated the situation, clouding public perception about why Israel’s critics support BDS.
Among other things, Ms. Weir told AFP at a Dearborn, Mich. rally in July 2016 that during her on-the-scene visits to Palestine, whenever attacks are carried out by those on the Palestinian side against Israel—typically involving sporadic rocket forays that inflict comparatively little damage— those attacks are given prominent press coverage.
However, disproportionately destructive attacks by Israeli pilots—using U.S.-made warplanes and laser-guided bombs derived from the nearly $4 billion in official U.S. foreign-aid dollars provided in one lump sum annually to Israel’s government— often level entire buildings and blocks of buildings with brutal force, sometimes burying defenseless men, women, and children in the rubble. According to her organization’s research, 1,242 Israelis and at least 9,510 Palestinians have been killed between Sept. 29, 2000 and the present.
While many Palestinians are Christians, pro-Zionist Christian preachers such as John Hagee of San Antonio, Texas turn a blind eye to the extreme suffering endured by Palestinians in the land that Jesus Christ once walked, which includes Bethlehem.
THE ANTI-BDS TALLY
During the same week Walker made his anti-BDS announcement, Maryland Gov. Larry Hogan signed an executive order blocking his state from awarding contracts to companies thought to be supportive of BDS.
This anti-BDS movement goes back at least as far as 2015, with some states having fully passed the legislation and others on the brink of doing so. Besides Maryland and Wisconsin, the other states with anti-BDS measures in place are Alabama, Arizona, California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Nevada, New Jersey, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, and Texas. In addition, New York Gov. Andrew Cuomo issued an executive order banning state agencies from investing in companies that support boycotts of Israel.
The Jewish press can be quite informative in anti-BDS mechanics. For example, a March 2016 Jerusalem Post article reported: “An Illinois state agency named 11 companies barred from doing business with the state for boycotting Israel or its settlements, the first such designation by an official U.S. body.”
But even the Post conceded that the situation can be tricky: “A number of the entities on the list approved . . . by the Illinois Investment Policy Board have pulled money from Israeli businesses that operate in the West Bank and eastern Jerusalem, but have not boycotted Israel within its 1967 [border] lines. At least two of the entities have said their disinvestment from Israel in recent years was based on commercial, not political, calculations.”
A key unanswered question is whether the Commerce Clause of the U.S. Constitution—which delegates to Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes”—blocks or limits the states from being so deeply involved with commerce in the first place, regardless of the entities involved. AFP readers may want to contact their state legislators with that and related questions.
Mark Anderson is a longtime newsman now working as the roving editor for AFP. Email him at [email protected].