The relevant provisions require that the president make preventing such boycotts a “principal trade negotiating objective” of the United States in dealings with other countries. Under the Constitution, the president has the authority to “make” treaties, and Congress cannot dictate their terms or micromanage their negotiation. Congress can of course tell the president what to keep in mind, which is exactly what the law does. And the signing statement merely makes clear it will be interpreted in the latter, and not the former, way.
Such a statement was probably redundant, as the relevant provisions inherently give the president vast wiggle room, since resisting boycotts is among many such trade negotiation priorities, and the law does not purport to dictate how much emphasis to place on it or how to trade it off against other objectives. In the normal course of events, the president could easily have ignored this in practice, and his statement adds little to that. Indeed, the hollow signing statement is more a venting of pique — that the Israel provisions were put into a bill too big to veto — than constitutional principle.
Indeed, Obama wisely made no constitutional argument about other key provisions of the law — because they could not be seriously made. The first two sections of the law are merely statements of policy and findings by Congress. These broadly oppose economic boycotts of Israel and territories under its control, and importantly, conclude that such measures violate WTO non-discrimination rules. As declaratory findings by Congress, there is nothing the president can do to undo them.
The next paragraph requires the president to make a biannual report on boycott efforts, and the United States’ response to them. This is a pure reporting requirement. Just because the president might disagree with Congress about the merit of the activities being reported — he likes boycotts, Congress does not — this in no way affects Congress’s ability to require reporting. The reporting itself is entirely neutral.
The law deals with trade with Israel, and restrictions on such trade (boycotts). While the president indeed has a major role in foreign affairs, legislating on issues of “foreign commerce” is a sole power of Congress. All trade laws have significant foreign policy and diplomatic consequences. Where trade and diplomacy conflict, Congress’s specific Foreign Commerce power trumps any vague presidential “diplomacy” power. No one has ever suggested it would be unconstitutional for Congress to liberalize trade with a country that the president seeks to pressure or isolate.
Moreover, one of the main operative provisions of the law is directed not to the executive, but to the judiciary. Here, the president has no constitutional prerogative to assert. The provision bans the enforcement of foreign judgments against Israeli entities that are based on the mistaken notion that doing business in Israeli-controlled territories is illegal. This law on the enforceability of foreign judgments is part of Congress’s exclusive legislative power to regulate the jurisdiction, rules of decision and procedures of the federal courts. This power is in no way shared with the president.
Thus as of now, U.S. law clearly opposes boycotts that are “politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories.”
The agreement -- H.R. 644: Trade Facilitation and Trade Enforcement Act of 2015 -- was passed 75-20, on February 11, and later signed into law by the president, on February 24.
The agreement, according to Ma'an News Agency, reiterates that US Congress “opposes politically motivated actions that penalize or otherwise limit commercial relations specifically with Israel,” referring specifically to BDS activities.
The act also cites that congress “supports efforts” to prevent international organizations or governments from carrying out investigation or prosecution of US citizens who do business with “Israel, with Israeli entities, or in any territory controlled by Israel.”
The provision, in effect, allows US citizens immunity from conducting trade with illegal Israeli settlements, while its terminology fails to distinguish Israeli settlements from the state of Israel.
This terminology conflicts with the US’ official line against settlements in occupied East Jerusalem and the West Bank. But, the White House, earlier this month, said: “As with any bipartisan compromise legislation, there are provisions in this bill that we do not support.”
The White House clearly supports this despite their empty words