Andrew Cuomo’s BDS Blacklist Is a Clear Violation of the First Amendment

Political boycotts are a form of protected expression. So why is New York’s governor trampling this constitutional right?

This article was originally published in The Nation on June 23, 2016.  Below is an excerpt of the article.  To view the full piece at The Nation, click here.

By Dima Khalidi

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 forego 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 frommore 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 swipe 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.

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