President Obama signed into law this week important measures opposing boycotts of Israel. While signing the law, he complained about its application to “Israeli-controlled territories.” He claimed the provisions were “contrary to longstanding bipartisan United States policy, including with regard to the treatment of settlements.”
In a previous post, I explained how the signing statement does not change, or purport to change, the binding legal force of the law. But it is more important as a political statement, and as such it is wrong on the facts. The law does not, as he complained, “conflat[e]” settlements with Israel proper. Indeed, it distinguishes sharply between them. The law speaks of two distinct areas: “Israel” and “Israeli-controlled territories.” That means that those “ territories” are something different from “Israel” — precisely the position of the administration. To be sure, the law opposes boycotts of both areas, but that is not conflating them, any more than opposing terrorism, or the use of foreign armed force, against both areas would be conflating them.
Rather, the law treats Israel and the settlements as distinct. However, in terms of certain foreign commerce issues, it applies the same legislative approach. Obama’s definition of conflation means that Congress is prohibited from enacting the same foreign commerce legislation for these two areas because the president does not like it on policy grounds — an absolutely unheard-of limitation on the foreign commerce power. Indeed, Congress has already given the same customs treatment to both, and otherwise applied identical rules to both, without any complaints about conflation.
The real conflation here is on the part of the White House — and J Street and Peace Now, which provided its talking points. They have conflated opposition to settlements with openness to using boycotts against them.