—by Ryan Lefkowitz
N.Y. Exec. Order No. 157 (June 5, 2016), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_157_new.pdf.
Abstract: New York State Governor Cuomo signed an executive order aimed to disallow transactions between New York State agencies and institutions engaged in the political protest of Israel through the use of boycotts, divestments, and sanctions.
On June 5th, 2016, New York State Governor Andrew Cuomo signed into action Executive Order 157 which prohibits state agencies from conducting business with companies that endorse and support economic sanctions for Israel. The executive order comes on the heels of the New York State legislature failing to push through two similar bills, Senate Bill S6378A and S6086. Executive Order 157 explicitly declares a “special historical relationship” and “commonly forged cultural bond” between New York State and Israel as well as the intention of New York State to “stand firmly with Israel.”
There are two main components to the executive order. The first involves the creation of a public blacklist of companies that are deemed to support “boycott, divestment, and sanctions activity targeting Israel” (also known as BDS). The executive order defines “boycott, divestment, or sanctions activity against Israel” as engaging in or promoting any activity that is intended to adversely affect Israel’s economy (including limiting commercial relations with both Israel and people in Israel) as a means of affecting political change. Because the executive order’s definition of BDS activities includes a requisite intent of affecting political change, the order relies on the Commissioner being able to reliably distinguish between companies using their buying power to boycott versus purchasing for personal preference.
The list of institutions and companies is to be compiled by the Commissioner of the Office of General Services within 180 days after its enactment. Included in the list will be institutions and companies that the Commissioner finds, through “credible information available to the public,” involved in BDS activities (either directly or through a parent or subsidiary). The order fails to define what means of obtaining information would fall under the umbrella term of “available to the public.” The list is to be publicly posted on the website of the Office of General Services and will be updated every 180 days.
Companies will be provided with written notice prior to being placed on the list, at which point they have ninety days to produce evidence showing they do not actually participate in boycott, divestment, or sanctions activity targeting Israel. If the Commissioner then makes a “good faith” determination that the institution does not engage in such activity, they will not be included on the list.
Any institution that is placed on the publicly published list can petition for removal by providing “written evidence” that the company has ceased its participation in BDS activities. There is no provision for if a company has erroneously been placed on the list and alleges that it has never engaged in BDS activity at all. Although the only requirement for being initially included on the list is “credible information” as evaluated by the Commissioner, the institution bears the burden of providing “written evidence” that they have stopped engaging in BDS activities in order to be removed from the list once published. Therefore, companies can petition to prevent their inclusion on the list by providing evidence they do not engage in BDS activities, but once they are included on the list the only way off is to show they have stopped such activity, not that they never engaged in it to begin with.
The second component of the executive order involves banning business dealings between “affected state agencies” and businesses that are deemed to be involved in or promote BDS activity. The order defines “affected state agencies” as any and all agencies and departments that the Governor has executive authority over, as well as all entities to which the Governor appoints the Chair, the Chief Executive, or the majority of Board Members (with the Port Authority of New York and New Jersey being an exception).
These entities are prohibited from financial dealings with any of the institutions on the publicly available blacklist. Entities that are currently involved with institutions that are deemed to engage in BDS activities have one year from the effective date of the order to comply. The executive order itself is effective immediately and is indefinite in length.
Executive Order 157 is the first of its kind in the country and Governor Cuomo has faced both praise and backlash for it. In light of the inability of the New York State legislature to pass similar bills, some have seen it as an unwarranted executive overreach on a divisive issue. Opponents of the bill’s contents argue that it is a politically motivated attack on the freedom of speech, exercised here through engagement in BDS activities, and is unconstitutional.