Wednesday, January 23, 2019

Let's Analyze Maryland's Anti-BDS Executive Order!

Back in 2017, Maryland Governor Larry Hogan (R) promulgated an executive order barring state contracts with companies which boycott Israel. Now, a former Maryland State Delegate, Saqib Ali, is suing, claiming the order violates the First Amendment.

I actually knew Saqib, back in the day (we used to be Facebook friends). He was elected to the House of Delegates in 2006, served for four years before unsuccessfully mounting a primary challenge to incumbent State Senator Nancy King, and hasn't returned to politics since. He was also an ally of then-Rep. Albert Wynn, back when he was trying to fend off an (ultimately successful) primary challenge from Donna Edwards.

But enough reminiscing. You don't come here for trips down memory lane, you come here for my cutting-edge analysis of anti-BDS enactments -- e.g., my guide for writing anti-BDS laws without making a "constitutional and PR mess". So how does this one fare?

Honestly? Better than many, albeit not perfect.

What's interesting about this particular EO is that it is actually quite narrowly written -- indeed, it is one of the closest to my preferred "just write a damned anti-discrimination provision" formulation that I've seen. The EO's definition of boycotting Israel covers only actions taken "because of [an entity's] Israeli national origin, or residence and incorporation in Israel or its territories."

Moreover, it expressly does not cover non-commercial actions, boycotts of the Israeli government or other "public" entities, and, most importantly, boycotts taken "because of the specific conduct of the person or entity."

So, in effect, the Maryland EO would preclude a contractor from saying, flatly, "I won't work with any Israeli entity, because they're Israeli." But if one had a specified objection to a given company -- "I won't work with this Israeli company, because they engage in this objectionable practice" -- that would be fine.

It's worth juxtaposing this order against the Rubio bill being debated in the Senate. To be sure, the latter is awkward to talk about because its really an anti-preemption bill and doesn't actually change any positive law regarding BDS. But the way Rubio formulates anti-BDS laws is quite different from how Hogan did it.

Rubio's bill purports to encompass boycotts taken "for purposes of coercing political action by, or imposing policy positions on, the Government of Israel." The at least quasi-expressive character of the boycott is built in; indeed, as I observed, Rubio's bill actually doesn't cover straightforward discrimination cases ("I won't work with Israelis because they're Israeli"), but would cover even boycotts of certain American companies if the goal was to "coerce" Israeli political action (e.g., boycotting Caterpillar to try and get Israel to change its housing demolition practices). The more expressive the boycott is, the more vulnerable it is under Rubio's proposed law.

By contrast, the Maryland EO runs in the opposite direction: where one acts for specified, expressive reasons -- i.e., due to particular choices that company or entity has made -- the boycott is protected. It is only the raw act of refusing to work with someone based on their nationality that is proscribed. And while one could characterize even that as "expressive", we have very good reasons not to go down the road of "my refusal to do business with people based on their nationality is protected expression!"

So those are some of things I like about the EO. What don't I like? Well, there's the failure to differentiate between Israel proper and the territories, to begin with. And more importantly, I continue to think we'd be better off just writing a general anti-discrimination requirement, rather than an Israel-only one-off. Why not just say state contractors must certify that do not boycott any company "because of [its] national origin, or residence and incorporation in a particular nation or territory"? So much aggravation could be avoided this way! (Which suggests that, maybe, the aggravation is the point).

The inclusion only of Israel also creates a needless viewpoint discrimination opening that otherwise wouldn't exist. On the one hand, it seems to me that the Maryland EO only prohibits conduct targeting Israeli national origin that could already be proscribed by a general anti-nationality discrimination rule. But there is obviously something askance in only prohibiting national origin discrimination against one nation (just as I'm fine with prohibiting discrimination on basis of a contractor's "religion", but I'm much less fine prohibiting discrimination on basis of a contractor being "Protestant" or "Buddhist". No, I don't think you should be able to discriminate against Buddhists -- but what message does it send when it's only that religion that's protected?).

I also observed that my preference is for these laws to only regulate contractors as contractors, not in their "off-the-clock" decisions, and that they probably should exempt sole proprietorships. The "off-the-clock" issue is vague here -- while the EO on face seems to also cover anti-Israel discrimination that is unrelated to the contractor's work for the state, the implementation of the EO seems to narrow its ambit. A bidder or contractor is asked to certify that it
has considered all bid/proposals submitted from qualified, potential subcontractors and suppliers, and has not, in the solicitation, selection, or commercial treatment of any subcontractor, vendor, or supplier, refused to transact or terminated business activities, or taken other actions intended to limit commercial relations, with a person or entity on the basis of Israeli national origin, or  residence or incorporation in Israel and its territories. The Bidder/Offeror also has not retaliated against any person or other entity for reporting such refusal, termination, or commercially limiting actions.
That, to me, asks only about their conduct with respect to subcontractors, vendors, or suppliers for the contract they're bidding on -- a case where Maryland's interest in the conduct of the potential contractor is at its apex. Obviously, Maryland has an interest in ensuring that its contractors pick their subcontractors, vendors, etc., based on their merits and not winnowed the field via political litmus tests.

But the EO definitely does apply to sole proprietors. That gives us a chance to mention Ali's specific suit, since he is suing as a sole proprietor who wants to apply for certain state software development contracts.

The thing is -- I think it's an open question whether Ali even has standing to sue, because I'm not sure he successfully pleads that his conduct actually conflicts with what's proscribed under the EO. For one, David Bernstein has argued that there is a difference between regulating a "sole proprietorship" and the individual who is a "sole proprietor" in their personal capacity -- only the former is precluded from boycotting Israel, but the individual-qua-individual is free to do whatever he wants. The complaint Ali filed does not, to my knowledge, ever say that Ali-the-software-engineer engages in any boycotting activity. Indeed, if anything it indicates the opposite -- it's a personal stand he takes personally:
Personally, Saqib Ali refuses to purchase Sabra hummus or SodaStream products, which have ties to Israel and its occupation of Palestine. He also advocates for others to join the BDS movement, and monitors current events in order to identify and promote specific BDS actions (Para. 35).
This is the only place in the complaint where Ali alleges any conduct or practice by him which supposedly clashes with the EO, and it speaks of what he does personally, not professionally (it should be, though almost certainly isn't, needless to say that Ali's expressive advocacy to promote the BDS movement is not covered by the EO and isn't germane to the complaint).

If we go back to how Maryland appears to be implementing the law -- asking the bidder whether it has refused to contract with an Israeli-qua-Israeli "in the solicitation, selection, or commercial treatment of any subcontractor, vendor, or supplier" -- this problem comes into sharper focus: has Ali, at any point, had even the occasion to reject Sabra or Sodastream as a "vendor" for one of his software engineering projects? I'm dubious.

Now to be fair, the whole point of sole proprietorships is that the border between the "company" and the individual is blurry and doesn't really need to be kept firmly separate. If Ali works out of a home office and decides he's not going to keep Sabra Hummus as a snack in the minifridge, is he boycotting or is the proprietorship? So there remains some uncertainties in such a case -- which is one reason why I think states need to be very careful in applying these laws to sole proprietorships.

But there's a bigger problem lurking Ali's case: His complaint doesn't actually say he boycotts Israeli companies on basis of their nationality. It says that he boycotts Sabra Hummus and SodaStream -- but it doesn't say why in any real detail ("which have ties to Israel and its occupation of Palestine"). The indication is that he chose those companies "because of the specific conduct" they've engaged in with respect to Palestinians -- conduct which Ali objects to. But such decisions are expressly not covered by the Executive Order. It seems to me that to establish an actual clash with the law, Ali would have to aver that he boycotts those companies because of their "Israeli national origin" or their "incorporation and residence" in Israel or Israeli-occupied territories. And so while he says he can't sign the certification "in good faith", I actually think it's likely that he hasn't done anything that would foreclose him from doing so.

Indeed, I kind of suspect that Ali's problem isn't that he actually engages in conduct proscribed by the EO. It's that he doesn't want to say he doesn't boycott Israel -- even if, for purposes of the rules of the EO, he doesn't. This isn't as uncommon as you'd think -- there's a long history of government compelling corporations to engage in certain speech (e.g., being forced to label that their product is "Made in China"), and an equally long history of corporations trying to allege that such compulsions violate the First Amendment. I tend to be skeptical of those claims, particularly in the context of a certification submitted to a contracting officer -- hardly an activity typically thought of as "expressive". And here, where Ali could sign the certification and would nonetheless be free to state -- as loudly as he wants -- that he's still boycotting SodaStream and he's doing it because of this that and the other malign conduct SodaStream has engaged in, the restriction on his expressive capacities is minimal.

The law here remains unsettled, and the Maryland order is certainly not perfect -- in particular, I just really wish states would get off the "anti-BDS" kick entirely and just pass consistent rules governing nationality-based discrimination if that's what they care about. That said, the Maryland EO is considerably better than many of its peers -- mostly because it contains itself to cases of straightforward discrimination and, unlike Rubio's bill, doesn't target expressive conduct. And because it's so narrowly focused, it might not even be the case that Ali actually has standing to challenge it -- I think there's a very viable motion to dismiss here for the state's attorney general's office. I suppose we'll see soon enough.

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