The self-styled “pro-Israel, pro-peace” lobbying group J Street and its allies are pushing for the Treasury Department to investigate the tax-exempt status of charities that provide aid to Jews living in the West Bank. As Eugene Kontorovich explains, such a move would violate the Constitution and set a pernicious precedent—and is based on completely unfounded presumptions about the settlements:
While J Street claims that its demand is justified on the grounds that private Americans’ support for settlements contravenes “established public policy,” J Street is calling for the administration to do something unprecedented and clearly unconstitutional. To put it simply, J Street et al. are asking that some non-profits be denied tax exemptions because they disagree with the president on diplomatic matters. That’s what going against ”public policy” means here—not violating any statutes, but pursuing goals at odds with the foreign policy of the president. . . .
In its effort to find a legal basis for its illiberal campaign, the most J Street can invoke in favor of its claim of a clear “public policy” is political statements [about West Bank settlements] from the executive branch, and a non-binding and long-rejected 1979 letter from a State Department legal adviser. But as frustrating as this may be to J Street, there is no U.S. law or clearly established U.S. policy which indicates that settlements are illegal. . . .
A State Department memo is not a law or even an agency regulation. . . . No official has ever mistaken the memo for a legal enactment; indeed, a mere two years after the 1979 letter, President Reagan announced that settlements are lawful, and presidential administrations in the 35 years since then have studiously avoided expressing any opinion on the lawfulness of settlements. Meanwhile Congress has passed numerous laws—which do establish U.S. law and policy—that clearly show Israeli settlements are not illegal. . . .
Worse yet for J Street is the fact that even if there were a U.S. policy that Israeli settlement construction violates international law, that policy would have nothing to do with U.S. citizens supporting libraries, schools, and other services in those communities. . . . Most anti-settlement scholars are forced to concede that settlers themselves do not violate international law. . . . And just as certainly there is nothing in the Carter-era State Department letter that claims that charitable contributions by Americans to settlements violate the law. . . .
J Street’s call for a tax inquisition is authoritarian, anti-democratic, unconstitutional, arbitrary, vindictive, and, to put it delicately, uncharitably focused on the Jews.
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