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HAMMER: Ilhan Omar Is Wrong. Here Is Why Anti-BDS Laws Are Perfectly Constitutional.

A view of the national flag of Israel in Eilat city center. On Tuesday, March 6, 2018, in Eilat, Israel.
Artur Widak/NurPhoto via Getty Images

Jew-hater extraordinaire Rep. Ilhan Omar (D-MN) — she of "Jews have dual loyalty" and "support for Israel is only due to monetary interest" fame — is at it again. Omar, whose membership in the 2020 electoral suicide "Squad" has launched her, along with her fellow America-hating Marxist zealots, even more firmly into the national spotlight, is opting to use that spotlight to double and triple down on her signature issue: Hating Jews.

 

Yes, really.

Omar, who, when she wasn't reportedly defrauding the U.S. government, engaged in a systemic defrauding of Jewish voters in her Minnesota congressional district, decided to use her national platform this week to highlight just how strongly she feels about hurting, penalizing, and undermining the political and economic interests of global Jewry. As The Daily Wire has reported, Omar introduced this week a House resolution that "affirms" Americans' purported "right" to engage in the facially anti-Semitic Boycott, Divestment, and Sanctions (BDS) campaign that seeks the ultimate destruction of the world's only Jewish state. Omar, whose popularity among swing voters rivals that of the bubonic plague, introduced the resolution by flaunting her vile Jew-hating credentials for the world to see in hitherto unprecedentedly brazen fashion: Comparing the genocidal BDS campaign, which seeks the annihilation of the state of Israel and the tossing of all the Juden into the Mediterranean, to the lineage of proud American boycotting that dates all the way back to the Boston Tea Party itself.

Omar's resolution, furthermore, directly compares the free, liberalized, pluralistic state of Israel to genocidal Nazi Germany, the gulag state that was the Soviet Union, and apartheid South Africa alike.

There are truly no words to describe this monstrous level of moral obtuseness — this unfathomable level of sheer stupidity. If I were a voter in Minnesota's 5th Congressional District who helped send such a contemptible and benighted ignoramus to the United States Congress, I'd hide my head in a bag for years.

But Omar's resolution, if taken at face value, does not actually offer direct substantive support for BDS. Rather, the resolution amounts to a procedural and legal "affirmation" of a purported constitutional "right" to engage in BDS. Here is the direct text:

 

Resolved, That the House of Representatives —

(1) affirms that all Americans have the right to participate in boycotts in pursuit of civil and human rights at home and abroad, as protected by the First Amendment to the Constitution;

(2) opposes unconstitutional legislative efforts to limit the use of boycotts to further civil rights at home and abroad; and

(3) urges Congress, States, and civil rights leaders from all communities to endeavor to preserve the freedom of advocacy for all by opposing antiboycott resolutions and legislation.

But is the anti-Semitic BDS movement actually constitutionally secured by the First Amendment? The short answer is no, not really. As law professor and constitutional law expert Eugene Kontorovich explained in The Washington Post in 2017, it is the "distinction between ... expression and ... commercial conduct" that makes all the constitutional difference in the world. Or as David French helpfully framed it at National Review today, institutional discrimination that is targeted in its bigotry against Israelis due merely to national origin is statutorily illegal under the 1977 Export Administration Act and is no way constitutionally protected by the First Amendment.

As Kontorovich explained, "the anti-boycott provisions of the 1977 Export Administration Act ... [prohibit] U.S. entities from participating in or cooperating with international boycotts organized by foreign countries." These provisions were not initially written with Israel in mind, but they are statutorily agnostic as to the target of the boycott. The Export Administration Act was signed into law during the administration of the ultra-leftist, Hamas-cozy President Jimmy Carter, and there were no notable First Amendment criticisms of the Act raised at the time of its enactment.

In fact, the U.S. Supreme Court unanimously held in Rumsfeld v. FAIR that an institutional entity's refusal to do business based on national origin is not an inherently expressive activity that is protected under the First Amendment. As Kontorovich aptly phrased it: "It is only the boycotter’s explanation of the action that sends a message, not the actual business conduct. Those expressions of views are protected, but they do not immunize the underlying economic conduct from regulation." Under properly drafted anti-BDS statutes, such as the bill passed earlier this year by the U.S. Senate, individuals remain free to express their opposition to Israel through whichever convenient means they'd like to channel in order to do so. Instead, it is merely an entity's economic discrimination based on national origin that is not covered by the First Amendment. And under Rumsfeld and other applicable Supreme Court precedent, institutional boycotts against Israel are legally treated as economic action — and not as First Amendment-protected speech.

 

Again, properly drafted anti-BDS laws do not prohibit individuals from boycotting Israel, in their individual capacities.

Here is how French helpfully puts it:

Legally ... the white-nationalist analogy holds up quite well. Yes, you have a right to join the tiki-torch brigade and march to your heart’s content. You have a right not to watch pro sports because most of the athletes are nonwhite. But the instant you form or join a public accommodation — or the instant you join an arm of the state — your discrimination becomes unlawful.

It is really that simple. To the extent Omar's resolution merely seeks to "affirm" an individual right to boycott Israel in one's personal capacity, she is fighting a non-existent straw man. But to the extent Omar's resolution also seeks to "affirm" an institutional entity's "right" to economically discriminate based on national origin, she is dead wrong on the law.

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