Boycotting the Boycotters: Turnabout Is Fair Play Under the Commerce Clause and the Unconstitutional Conditions Doctrine

Abstract

This paper is a review of the constitutionality of state laws that prohibit the state from investing in, or contracting with, parties engaged in certain boycott activity. In particular, as the boycotts subject to state regulation are often connected to the so-called “BDS movement” that has been active in promoting commercial and academic boycotts of Israel, the paper focuses on the background of BDS and how the nature of BDS impacts the analysis of Commerce Clause and Unconstitutional Conditions Doctrine applicability.

Keywords: BDS, boycott, divest, sanctions, Israel, SJP, CAIR, JVP, MSA, AMP, constitution, commerce clause, unconstitutional conditions doctrine, aclu, HLR, ACLU, Kansas, Arizona

JEL Classification: K00, K10, K19, K30, K33