Governors have significant authority in issuing executive orders, and in many situations, they do so to circumvent legislative roadblocks. But executive orders cannot wish away the Constitution.
This, however, is precisely what New York State Governor Andrew Cuomo tried to do when he signed Executive Order 157 on June 5. The executive order requires the state to create a blacklist of institutions and companies that engage in or promote boycott, divestment, and sanction (BDS) activities against Israel—and then further requires the state to withdraw or forgo investments in these blacklisted entities. The move has earned well-deserved comparisons to the red-scare tactics of Wisconsin Senator Joseph McCarthy. It is also unconstitutional.
Cuomo announced Executive Order 157 unexpectedly, after months of wrangling in the New York state legislature around two similar bills. He seems to have been spurred to action after the legislature’s efforts foundered amid opposition from more than a hundred activist and civil-liberties groups. Indeed, the governor explicitly said he chose to deploy the executive order as a way to accomplish, with a stroke of his pen, what the legislature could not accomplish in its legislative session, presumably because of all of the constitutional and political concerns constituents raised. Now he is encouraging other governors to do the same.
“If you boycott Israel, New York will boycott you,” Cuomo wrote in a June 10 op-ed in The Washington Post in which he attempted to justify his executive action as both righteous and constitutional. Wildly misrepresenting the BDS movement as a “politics of discrimination, hatred and fear,” he cast it as “new brand of warfare” and linked it, bizarrely, to terrorism. In perhaps the most preposterous distortion, he insinuated that BDS was the province of “those who reject our way of life”—a phrase that sounds more akin to the reckless jingoism of George W. Bush than a Democratic governor talking about a grassroots boycott movement.
In fact, BDS fits within the highest traditions of protest in the United States. Based on a 2005 call from Palestinian civil society, BDS is a tactic to pressure Israel to comply with and respect international law by ending its nearly five-decade military occupation, granting equal rights to Palestinian citizens of Israel, and respecting the internationally enshrined right of return of Palestinian refugees. At a moment when all diplomatic efforts have failed, BDS offers a nonviolent way of getting Israel to face up to its responsibilities to the millions of Palestinians it continues to control by military force, the millions it discriminates against on a daily basis, and the millions more it has dispossessed over nearly seven decades. Its inspirations are the movement supporting the South African call for BDS against South Africa’s apartheid regime as well as civil-rights boycotts and farm-worker boycotts in the United States.