Congress draws a red line on the Green Line, Obama uses an eraser

President Obama last Thursday signed into law the Trade Facilitation and Trade Enforcement Act of 2015 (H.R. 644). As is often the case, the White House issued a signing statement along with the action, highlighting areas of disagreement with the new law. In this instance, the statement mentioned only one section in the 160-page bill.

“As with any bipartisan compromise legislation, there are provisions in this bill that we do not support, including a provision that contravenes longstanding U.S. policy towards Israel and the occupied territories, including with regard to Israeli settlement activity,” the White House said.

The section in question, Section 909, deals with Israel—taking a strong stand against the Boycott, Divestment and Sanctions (BDS) movement, which seeks to economically isolate the Jewish state through trade sanctions.

Most importantly, for the purposes of BDS, the legislation erases the distinction between Israel’s pre-1967 borders—also known as the “Green Line”—and the Jewish state’s undisputed territory.

Notably, the White House signing statement did not say that the administration would decline to enforce this section of the new law, perhaps because there are no Constitutional grounds for doing so.

The section lays out a policy statement regarding American trade with Israel, sets out a negotiating objective of discouraging and eliminating boycotts of Israel, requires the executive branch to report annually on BDS activities here and abroad, and prevents U.S. courts from enforcing judgments based on other countries’ BDS laws.

The critical element is that identical treatment (for business purposes) of Israel and the territories beyond the Green Line is included twice. One inclusion is in the policy section 909(b)(7), which states the measure “supports efforts to prevent investigations or prosecutions by governments or international organizations of United States persons solely on the basis of such persons doing business with Israel, with Israeli entities, or in any territory controlled by Israel.”