Trump executive order prompts 1st Amendment battle
WASHINGTON (TNS) – President Donald Trump’s executive order this week to consider a specific definition of antisemitism in discrimination cases could prompt a court battle with free speech advocates, who argue that the ability to deny Israel’s right to exist is protected under the First Amendment.
The executive action is likely to please the president’s allies in the Israel advocacy community and, entering the heat of the 2020 presidential race, provide his campaign with a counterpoint to continued criticism that Trump himself has fueled rising antisemitism.
The order will direct the Justice Department and the Education Department to use the International Holocaust Remembrance Alliance (IHRA) definition and its adjoining examples, which state that efforts to demonize, delegitimize or apply double standards to Israel are antisemitic in discrimination cases brought forth under Title Six of the Civil Rights Act.
While Trump’s order has been in the works for months, its emergence coincides with two Hanukkah receptions at the White House on Wednesday, which gather Republican supporters of his Israel policy.
The IHRA definition has been recognized by the US Department of State, Israel, France, Germany and several other European governments, but it is not without controversy.
In the United States, for example, the American Civil Liberties Union (ACLU) has opposed its usage under the Civil Rights Act on constitutional grounds, while overseas, a debate within the British Labour Party over whether to adopt the definition has embroiled leader Jeremy Corbyn in scandal before Britain’s parliamentary elections on Thursday.
Trump’s executive order, crafted by Jared Kushner and his longtime aide Avi Berkowitz,
adopts the language of a stymied bill supported by Republicans and Democrats in both houses of Congress.
The legislation, titled the Antisemitism Awareness Act, would require the Education Department to consider the IHRA definition under Title Six as a provision of the law that prohibits the flow of federal dollars to programs and organizations that are found to discriminate on the basis of race, color or national origin. While the bill was initially drafted by lawmakers from both parties, Republicans introduced it on their own this year, after Democrats requested a pause to consider alternative legislative options.
One Democratic author of the House legislation, Ted Deutch of Florida, wants the bill broadened beyond its narrow focus within the Education Department, which began applying the IHRA definition in civil rights cases last year, and to adopt instead a “whole of government” approach that directs all federal agencies to adopt the framework.
“It’s not that we won’t reintroduce it – what we’re considering is what is the most effective way to address antisemitism,” a senior aide to Deutch said, noting that his office had not yet seen the text of the executive order.
The assistant explained that if “the president takes the Antisemitism Awareness Act, turns it into an executive order and applies it to other agencies, that is generally something we would support.”
The administration worked with Democrats on the order, consulting with David Krone, former chief of staff to former Senate majority leader Harry Reid of Nevada, among others.
The order supersedes prior guidance and directs all relevant agencies, particularly the Justice Department and the Education Department, to “consider” the definition, according to one senior official, who said the White House would welcome congressional passage of a law that would strengthen Trump’s executive order.
Kushner first raised the idea of executive action in the spring when working with the White House Counsel’s Office and the Office of Legal Counsel at the Justice Department to address concerns expressed last year regarding the congressional effort by the ACLU. Kushner also consulted with Paul Clement, former US solicitor-general under president George Bush, the senior official said.
Last year, ACLU argued that Title Six already protects religious minorities such as Jews from discrimination, and warned that the IHRA examples of antisemitism are “constitutionally protected statements about Israel, including accusing people of ‘being more loyal to Israel’ than to the United States, applying a ‘double standard for Israel,’ or ‘denying the Jewish people their right to self-determination.’”
Over the past decade, local and state governments have passed aggressive legislation to combat the Boycott, Divestment and Sanctions movement targeting Israel, withholding critical dollars from organizations that partake in targeting Israel. According to data collected by the FBI and the Anti-Defamation League, such efforts have gained national steam amid rising antisemitism across the country.
The administration’s action on Wednesday will come on the heels of yet another controversy over Trump’s rhetoric toward Jews, after he told an Israeli-American group in Florida last weekend that he expects attendees to vote for him in 2020 in order to protect their wealth.