By Noah Feldman
The U.S. Senate passed a bill Tuesday that says state governments can refuse to do business with companies that boycott Israel. The bill passed, 77-23, with 22 Democrats and Republican Rand Paul maintaining that it threatens free-speech rights. So you might be wondering, as I was: Is the bill actually unconstitutional?
The question is straightforward, but the answer isn’t — because of the strange way that the federal bill is written with regard to the boycott, divestment and sanctions (BDS) movement.
The bill essentially declares that, if states want to pass measures targeting companies that boycott Israel, nothing in federal law prohibits the states from doing that.
The strange thing is that no one really seems to think that the state laws violate any federal statute.
Rather, the main legal argument against anti-BDS laws, which are on the books in more than half the states, is that they violate the Constitution. The American Civil Liberties Union and the Knight First Amendment Institute at Columbia University have been arguing that the state laws unconstitutionally target the freedom of speech and association of companies that choose to engage in boycotts.
In other words, the bill passed by the Senate is symbolic. Nothing that the bill does is inherently unconstitutional.
Yet the clear intention of the Senate bill is to encourage and endorse state laws that very probably do violate the First Amendment. It makes perfect sense for Democratic senators to say that they are voting against the bill for that reason.
And the Democratic leadership of the House of Representatives can similarly say with that it won’t allow the Senate bill to come to a floor vote because of constitutional concerns.
The text of the bill’s key operative sentence says merely that “a measure of a state or local government” that refuses to do business with companies that boycott Israel is “not preempted by any Federal law.”
Federal preemption is a legal concept that means, roughly, that if Congress has legislated in a given area, the states can’t contradict the federal legislation. Under the supremacy clause of the Constitution, in a conflict between state and federal law, federal law wins.
There are different subtypes of federal preemption, none of which seem relevant here. Neither expressly nor by implication has Congress ever indicated that states couldn’t address the BDS question.
There is, however, a powerful constitutional argument to be made that the state laws violate free speech. The right to boycott is a form of free speech and free association that has been specifically protected by the Supreme Court in a 1982 case called NAACP v. Claiborne Hardware.
A friend of the court brief recently filed in the U.S. Court of Appeals for the 9th Circuit on behalf of a group of preeminent First Amendment scholars argues that it is “easy” to determine that the anti-BDS laws are unconstitutional: because the laws target specific expressive activity based on its content.
Given that the Supreme Court in recent years has held that any law that regulates expression based on content must be subjected to the highest form of constitutional scrutiny, this analysis is almost certainly correct when applied to the anti-boycott laws.
The only way I can see around the First Amendment would be to claim that when the state refuses to do business with a company that boycotts Israel, the government isn’t punishing the company, but simply making a permissible value choice about its contracting partners.
The problem with this argument is that if a state said it would only do business with Democratic-owned companies that would pretty clearly seem like it was punishing Republicans for the content of their beliefs.
The Senate bill was cleverly designed so that it doesn’t directly entangle itself with this constitutional question. No doubt its supporters wanted to make it very hard for Democrats to vote against it.
Of course, as a matter of political reality, Democrats who voted against the bill aren’t only motivated by constitutional concerns. They also presumably want to avoid a national fight over BDS at a time when concerns about Israel potentially threaten party unity.
But the Senate bill, while clever, isn’t clever enough to force Democrats into discussing the merits or demerits of BDS. The law isn’t unconstitutional. But it implicitly endorses unconstitutional laws — and that is enough reason to oppose it.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.