Day: August 4, 2025

On February 7, Rep. Lauren Boebert of Colorado offered the following advice on X: “Dear Speaker Johnson, Simply pass every executive order President Trump has signed, and you will go down as the greatest Speaker in American history.” Consider also the words of a more senior legislator, the Chairman of the House Appropriations Committee, Rep. Tom Cole, in response to being asked whether it is up to Congress to decide whether the foreign aid agency, USAID, ought to be shut down. “Well, yeah,” Cole answered, “but Congress doesn’t always do its job. When Congress doesn’t do its job, I’m not going to be mad at an executive [branch] that’s trying to save money.”

Legislators have responded to the whirlwind of activity in the first half-year of Donald Trump’s second presidential administration with an overwhelming sense of passivity. Trump’s Democratic opponents, who find themselves narrowly in the minority in both the House of Representatives and Senate, have done little to slow things down, even if they’ve offered record-long speeches in both chambers. Republicans, meanwhile, have made supporting the president their top priority, acquiescing to his initiatives even when they seem to directly impinge on the legislature’s constitutional prerogatives.

Americans can be forgiven for thinking Congress has become about as useful as a human appendix—prone to inflammation and perhaps best removed entirely.

Because Congress’s marginalization has proceeded so relentlessly in the twenty-first century, its irrelevance is now probably overestimated by most casual observers of American politics. We should avoid getting carried away. We have not become an autocracy. Legislators retain influence that often expresses itself informally; the president is not free to disregard their priorities. The text of the US Code still matters—very much—and so the people who have the power to rewrite it remain potent and sometimes necessary. The saga of “Trump’s” big, beautiful bill—H.R. 1, the budget reconciliation omnibus signed into law by the president on July 4—is one of factional strife and accommodation that played out almost entirely in the legislature, although Trump’s whipping was certainly crucial to securing final passage.

We should dispassionately take stock of Congress’s current position on foreign and domestic policy, on taxing and spending, and on the deeper question of what role our elected representatives play in our Constitutional system. We will see our lawmakers choosing acquiescence repeatedly, because it is a winning strategy for them in the context of a thoroughly nationalized, thoroughly apocalypticized political environment. If we are careful, we will discern limits to their passivity, though the precise boundaries remain quite murky, as much to the participants as to outside observers. What we will not see is any obvious reason to expect this dynamic to reverse itself in the immediate future. If there are heroes of a legislative revival already on the scene, they have concealed themselves quite masterfully. Congress may well transform itself—its current leader-dominant structure is a historical anomaly—but it will take some kind of shock (bigger than Trump himself) to begin that process.

Second Fiddle on Foreign Affairs

The world stage has been unusually eventful during this first stretch of the second Trump administration, such that the president has been forced to deal with one exigency after another. He has done so on his own terms, with very little pressure from his copartisans who control Congress. Plenty of Republican legislators view NATO and the Russia-Ukraine War quite differently from the chief executive, and they have taken part in ongoing debates, both intramural and public, about America’s proper stance. But formally, Congress has simply steered clear of the issue, in stark contrast to a bipartisan coalition’s funding of Ukraine in 2024.

Meanwhile, Trump initiated two significant offensives. Responding to Houthi attacks on Red Sea shipping, he ordered an air campaign in Yemen, only to end it with a negotiated ceasefire six weeks later. The next month, after Israel unexpectedly bombed Iran to disable its nuclear weapons program, Trump committed American air power to that cause, dropping enormous bunker-buster bombs on three sites in a single hour. The administration essentially ignored Congress as it made these decisions and troubled itself very little as to legal justifications; in both cases, it asserted that the president’s commander-in-chief and foreign relations powers under Article II of the Constitution were sufficient. Trump’s Democratic critics in Congress expressed outrage; Rep. Alexandria Ocasio-Cortez, for example, declared that “the President’s disastrous decision to bomb Iran without authorization is a grave violation of the Constitution and Congressional War Powers,” endangering the nation and warranting impeachment. Although Trump disavowed any desire to continue hostilities with Iran and indeed helped broker a ceasefire between the Islamic Republic and Israel, Senate Democrats nevertheless pushed forward with a resolution demanding a termination of hostilities (which Republicans successfully bottled up).

There is something perfunctory and even farcical about Democrats’ insistence that these sorts of decisions ought to go through Congress in the first instance. Although Trump’s second administration is admittedly unusual in the extent of its willingness to act without even informally consulting Congress, also-ran status for legislators has become the default on foreign affairs over the last several presidential administrations, including those of Barack Obama and Joe Biden. Congress has not passed (or repealed) an authorization for the use of military force (AUMF) since 2002; it has not formally declared war since 1942. Legislators have frequently carped about executive bellicosity, and sometimes one chamber or the other has even expressed its official disapproval or tried to cut off funds, but mostly they have underlined their impotence. (Even when bipartisan majorities voted to disapprove any further hostilities with Iran after Trump’s targeted killing of Qasem Soleimani in 2020, it was unclear this would have any effect; in any case, Trump vetoed the resolution.)

Given how badly things went when Obama sought an AUMF related to Syria in 2013, and how relatively smoothly Trump’s limited engagements have gone, presidential predominance in foreign affairs may be fairly regarded as a comfortable and sensible habit.

Nor does this predominance equate to limitless discretion. If a president were to undertake a protracted “boots on the ground” military engagement, he would be extremely unwise to exclude Congress from his planning efforts. Congress has a great deal to say about the shape and size of the armed forces that the president has at his disposal; those legislators who build their careers around the respected Armed Services committees, many of whom are military veterans, are anything but passive on questions of weapons programs, military bases, and overall fiscal commitment. Moreover, when there is a strong bipartisan consensus in Congress, lawmakers show more ability to steer presidential conduct. Trump has indicated his desire to exit NATO, an alliance he sees as outdated and dysfunctional. Congress has taken steps to make that much more difficult, passing a funding limitation in their FY2020 NDAA and an explicit requirement for congressional approval in the FY2024 NDAA. Those actions might not be foolproof, but they do change the costs for the president in ways likely to matter.

Overall, Congress is decidedly a second-tier actor in foreign affairs today. But that is not a terrible embarrassment to the institution; indeed, it is a familiar situation throughout American history.

Ceding Domestic Policy Predominance

By contrast, legislators have historically been the premier deciders of “major questions” in the domestic sphere for most of American history. They have always existed in a complicated relationship with the “legislator-in-chief” as well as the organs of policy implementation. Roughly speaking, presidential leadership must usually tee up an issue for major legislation, but it is lawmakers who must, in driving it through to passage, decide the major contours of the law with due consideration to all the interests involved. They can manage this balancing, which is messy work, far better than any of the various experts retained in the executive agencies. (That’s politics, in a non-pejorative sense.) By contrast, the experts and permanent civil servants are better suited to settle the administrative details of policies in action. Legislators leave them plenty of questions to answer, sometimes intentionally and sometimes because of limited foresight.

This process has looked rather different in the 2020s, and especially in 2025. Most often, the script is now: the president sets the agenda, often with reference to a campaign promise. Allied partisan legislators loudly announce: We would love to deliver with legislation, but unfortunately our awful opponents make it impossible, and so we will root for the president to figure it out. Then the president rolls out an elaborate new policy, based on whatever old statute is handy, complete with a signing ceremony for the associated executive order, standing in where a new landmark law might once have been. Then, agency officials try to implement the policy while it is litigated, often all the way up to the Supreme Court. A non-exhaustive list of policies that have developed this way in the previous three presidencies: Obama’s DACA, net neutrality, aggressive expansion of Title IX, and Clean Power Plan; Trump 45’s regulatory rollback, off-budget border wall construction, steel tariffs, and overhaul of asylum policy; Biden’s COVID eviction moratorium, COVID vaccine mandate, and student loan relief.

As I explain in a recent article in National Affairs, the Supreme Court’s conservative majority has tried to push back against the bad-faith legal interpretations that power this Congress-circumventing path. But Republican legislators, for all their celebration of the repeal of Chevron deference, seem inclined to take their turn on the ride. Because nearly all their legislative efforts were devoted to a single reconciliation bill (about which, more below) and because they have eschewed nearly all bipartisan coalition-building in 2025, they have most often been content to root for executive action. Sometimes this makes perfect sense: when Trump reverses Democratic executive actions, new statutes are often unnecessary, as in the administration’s vigorous reorientation of Title IX and equal protection laws.

But legislators have also been bystanders when the administration’s legal basis for action is dubious—and even when Congress’s own core constitutional powers seem to be in jeopardy. This was most immediately apparent with the efforts of Elon Musk’s Department of Government Efficiency (DOGE), a body conjured into existence without the slightest hint of legislative involvement and claiming powers to close departments and terminate programs that Congress has not given even to the president since the 1980s. Far from questioning the parameters of this strange creation, Republican members of Congress fell all over themselves to join a DOGE Caucus which pledged itself to efficiency and promised to legislate in tandem with Musk’s efforts. Nothing of the sort ever happened. Instead, even as they hailed Musk’s declarations that some federal spending programs were utterly corrupt and devoid of value, they renewed the previous fiscal year’s appropriations without alteration, including handing a new year of funding over to USAID even as they cheered its apparent demise.

There are, remarkably, two even more striking illustrations of congressional acquiescence to presidential dominance. The first involves a law that Congress passed, with strong bipartisan support, in April 2024, requiring the social media app TikTok to either separate itself entirely from Chinese ownership or be banned from popular app stores (most importantly, Apple’s and Google’s). Legislators showed some surprising dexterity in getting that law passed, and the Supreme Court upheld its validity in January 2025. But TikTok had a secret weapon: over the course of the 2024 presidential campaign, Trump became convinced that it was a political asset for him, and so as president, he has simply declined to enforce the law. On the first day of his second term, he announced a delay in enforcement because the statute allowed for a single 90-day postponement of enforcement if a divestment deal was in the process of being consummated; one could argue (rather weakly) that this was lawful, notwithstanding the nonexistence of any imminent deal. Trump then announced a second delay in April and a third in June. His attorney general told Apple and Google that national security considerations would guarantee nonenforcement. In other words, the law was not really the law. GOP members of Congress who championed the TikTok law have offered barely a peep of protest, let alone an effective strategy to stop the president’s infidelity.

Broad presidential claims of national security are also central to a far more consequential set of policies: historically high tariffs on goods from countries all around the world, which Trump justifies with reference to the International Economic Emergency Powers Act (IEEPA), a statute that has never previously been invoked to justify tariffs. What is the emergency Trump is responding to? A persistent trade deficit. And what sort of rates does this allow the president to set? Any he sees fit, with unlimited changes at his discretion. (Recently, he announced a 50 percent tariff on Brazil, a country with which the United States has a persistent trade surplus.) This interpretation would seem to imply that, when it passed IEEPA in 1977, Congress gave away the first of its constitutionally enumerated powers, “To lay and collect Taxes, Duties, Imposts and Excises.” A few Republican members have publicly chastised these actions; many more who disapprove (both on legal and policy grounds) have held their tongues, hoping that courts will invalidate Trump’s actions and thus make an open confrontation with the White House unnecessary.

Congress’s ceding of authority could go quite a lot further yet. There are some indications that the Trump administration will withhold appropriated funds from many programs, probably avoiding a straightforward impoundment fight by leaning on the technique of “pocket rescissions.” Some members of the House Freedom Caucus (HFC) are encouraging this strategy, seeing it as a way of securing some fiscal discipline. If this strategy works (and it may well meet resistance), it would imply a presidential power of the purse fundamentally stronger than Congress’s. It would become possible—and perhaps politically convenient—to rely on autopilot spending laws from Congress while executive branch officials make the real funding decisions. As Chairman Cole’s quote above suggests, Republican legislators aren’t going to complain too much if all that’s at stake is saving a bit of money. But once the principle is established, it’s easy to imagine Congress losing its relevance entirely.

Partisan Lawmaking as Compensation

If Republican lawmakers are not particularly enthusiastic about many of the second Trump administration’s actions, what is their compensation for all this conflict-avoidance? By downplaying disagreements on most issues, they kept the team together to pass one big bill—which they called, unbelievably, the One Big Beautiful Bill Act (OBBBA). This is a serious accomplishment, not to be shrugged off lightly. It makes historically unprecedented investments (totaling $170 billion!) in border security; rewrites the tax code; puts some limitations on Medicaid and food stamp eligibility; turns American energy policy in conservative directions; and makes significant investments in military defense ($150 billion).

Getting the law across the finish line without a single Democratic vote was not easy work. Republicans’ majorities in both chambers are slim and members disagree about plenty. Several GOP factions credibly threatened to derail the law, including New York and California members seeking higher deductibility for state and local taxes; those concerned that Medicaid cuts might alienate their working-class supporters; and fiscal conservatives who wished for larger spending cuts. Republican leaders in both chambers figured out how to placate just enough members from each of these groups to secure passage, getting a crucial assist in the last stages from President Trump, who made it clear to potential holdouts that they would incur his wrath.

The OBBBA will undoubtedly live on in the public’s consciousness as Trump’s law, but scores of Republican members can justly take credit for shaping this legislation. As a budget reconciliation law, the OBBBA was crafted by many committees, and its final shape was the result of a complicated process of factional accommodation. Passing this law was a major partisan victory, as were the American Recovery and Reinvestment Act of 2009, Affordable Care Act of 2010, Tax Cuts and Jobs Act of 2017, American Rescue Plan Act of 2021, and Inflation Reduction Act of 2022. One-party legislation, most often possible through the filibuster-proof budget reconciliation process, has become the main event of twenty-first-century legislating.

That is bad news for the country, because it promotes zero-sum thinking and cuts out the kind of broad coalition-building needed if policy investments are to endure for generations. The giveaways necessary to get partisan allies to hold their nose and vote yes are often appallingly corrupt. There is little room for public reasoning in a process that will terminate in the question of: “Are you with us or against us?” We get negotiations but not much serious deliberation; there are lots of people keeping track of whose ox is being gored, but not so many worrying about writing good law. These laws reverse each other as each side tries to serve its core constituents, enshrine all manner of pandering policies, and (not coincidentally) blow up America’s budget deficit.

Members know how this process will play out, and plenty of them don’t like it, but they nevertheless play along. (Rep. Thomas Massie of Kentucky, one of the only dissidents in action as well as word, offers Massie’s Law: “Where N = number of Republicans required to stop a bad bill, number of Republicans voting Nay = N-1.”) Members of the HFC, in particular, understood (as early as December) that even a two-bill strategy would create more room for maneuver, while a one-bill strategy would preclude their taking a stand. Though they threatened and grumbled to no end, they nevertheless gave their votes at every procedural crossroads, including final passage of a Senate-reworked bill they claimed was a degradation of the House’s version.

Do Legislators Want More?

The HFC members get a great deal of (well-deserved) grief for their hypocrisy, but their ultimate willingness to play along does not distinguish them from their colleagues in the slightest. Members see themselves as loyal team players; they don’t fundamentally object to an institution set up to facilitate politics as a partisan contact sport; and most of them don’t acutely feel the loss of any more searching deliberation, which has been receding into historical memory for some time now.

In the concluding chapters of my 2023 book, Why Congress, I envisioned three scenarios for Congress’s future: decrepitude, rubber stamp, and revival. Republicans’ unwillingness to pick fights with Trump leads many people to the conclusion that legislators are choosing the second option: a rubber stamp. The truth is, however, Congress hasn’t done the work to make itself fit that role. A rubber stamp isn’t supposed to make itself scarce; it’s supposed to make itself available for the decision-maker’s use, without complication. It’s possible that, if either party won huge congressional majorities and the White House, Congress would move decisively in that direction. But that scenario itself seems remote, since both of America’s political parties seem unwilling to transform themselves into big-tent governing parties. In the deferential treatment of Trump’s cabinet appointments and the (bipartisan) willingness to turn budget reconciliation into an ever-expanding loophole to evade the Senate filibuster, one can certainly make out some signs of this inclination. (Attempts to limit the powers of federal district court judges to block executive actions would also fit the mold, but they seem not to have traction in the Senate.)

But congressional Republicans have not come anywhere close to heeding Rep. Boebert’s above-quoted exhortation to take all of Trump’s executive orders and write them into the statute-books. Perhaps because those votes would be too close for comfort, they mostly absent themselves as a body and use their platforms as individual members to broadcast their support for the administration. For many members, this media-oriented role is no kind of disappointment. It lets them build personal brands that may retain value after leaving office. And if they get on the right television shows, they may well catch the president’s attention and find direct influence through him. Other members who dislike this dynamic and wish to engage in more constructive policymaking often simply leave Congress.

Decrepitude, then, remains the path of least resistance for the institution that is supposed to be the beating heart of American self-government. Perhaps that is inevitable in a historical moment when more Americans see their political adversaries as actual enemies unworthy of being political bedfellows on any cause. Why should one seek to persuade and accommodate people who wish to destroy one’s whole way of life? If we do not believe in reasoning together, there is no need for Congress to mount a comeback as an institution.

Taking this course comes with very serious downsides, to put it mildly. As bad as some observers may have felt that Congress’s public deliberation was, policymaking-by-social-media is much, much worse. Having to hash out major decisions publicly has an unmistakable disciplining effect. A Congress intent on enacting industrial policy would never simply leave us with tariff rates that can bounce around at the president’s whim. A Congress determined to relieve some Americans’ student loan burdens would never have given so much to high earners free of economic distress. Relatively functional bipartisan processes have continued to prevail both for annual appropriations and national defense authorizations in recent years. If we imagine each of the thousands of decisions in those packages turned into a chance for presidential grandstanding, much mischief and bungling will result. In other words, if you think congressional decision-making is bad, wait until you get a load of post-congressional decision-making. It won’t be any technocratic paradise.

What would it take to push Congress toward revival? Some shock to the system, big enough to make members prioritize politically cross-cutting policies rather than partisan loyalty. Trump’s emergence turned out not to be big enough, nor was COVID-19. Maybe a shooting war with Russia or China? Perhaps if artificial intelligence transforms the economy so rapidly as to spike unemployment? Maybe a presidential term could go so badly as to make a political break inevitable, thereby opening a window for institutional reform? Who knows, maybe Elon Musk’s America Party will somehow change everything?

The challenge in imagining plausible scenarios is that, over the last decade, members of Congress have shown themselves quite able to redefine their own commitments to fit their team’s political needs. Our contemporary party system has, so far, bent rather than breaking a la 1910. Even the unprecedented un-gaveling of a Speaker of the House in October 2023 seems to have left little impression. Trump’s exit from the scene might scramble existing battle lines, but my guess is that something more than the turning of political pages is needed. We have no shortage of prescriptions for congressional revitalization. What we are short on is members with the courage (foolhardiness?) to risk their careers and partisan good standing to force the institution to operate differently—together with the perspicacity to understand how such a change would play out and why it would matter. “Once one dismisses the best of all possible worlds, one finds that this is the best of all possible worlds.” Q.E.D.

With a nod to Maimonides, Harvard Law’s Benjamin Eidelson and University of Virginia’s Deborah Hellman have published a draft article offering a “Guide to the Perplexed” regarding “Antisemitism, Anti-Zionism, and Title VI.” That law is the Civil Rights Act provision authorizing private litigants and the federal government to sue universities for discrimination. Whether anti-Zionism is anti-Semitism—always, never, theoretically but not practically, or some other relationship—dominates the discourse about campus demonstrations because it is generally thought that the latter but not the former implicates Title VI. Mere anti-Zionism is allegedly acceptable political discourse while antisemitism is bigotry. Accordingly, anti-Zionist campus demonstrations are sacrosanct free speech unless they “cross the line” into prohibited discriminatory harassment based on national origin.

The authors aim to show that it’s far more complicated. Antisemitism litigation against universities “face[s] formidable hurdles” first and foremost because civil rights law—at least on its face—only prohibits certain forms of antisemitism. It’s perplexing indeed.

Perplexing but moot, that is. Discrimination against Israeli nationals is prohibited under Title VI. No one disputes that, and that is all the government would have to show in order to strip a university of federal support. The hoopla over Eidelson’s and Hellman’s article, though, is about its analysis of contemporary anti-Zionism, and whether it fits into the narrow categories of antisemitism prohibited under civil rights law.

It is shocking that it is not obvious to the authors (and presumably their editors and readers) that contemporary anti-Zionism fits to a tee their description of what would qualify as prohibited national-origin discrimination. Yet it does not occur to them to make the argument that beneath the surface of anti-Zionist rhetoric is a movement with a philosophy predicated on certain discriminatory ideas about the nature of the conflict between Israelis and Palestinians. If two highly educated and thoughtful professors suffer from such a blind spot, the error is not really theirs.

Culturally, we have clearly focused on parsing phrases like “globalize the Intifada” at the expense of actually understanding the logic of contemporary anti-Zionist fervor. Forget particular chants and theoretical rhetoric, though: What are anti-Israel activists conveying to an objective listener at an irreducible level? What do they want, and why?

Destroying Israel is nothing short of an obsession among a cohort of young progressives. Yet it’s not always clear why students destroy their own library while disrupting exam prep in service of the anti-Israel cause and no other. Graduates don’t lie to administrators about the content of their valedictory addresses for the looming climate catastrophe. Nobody pours cement down Columbia’s toilets in protest of welfare cuts. Nor is it always clear why anyone off campus ought to care about what appears to be a he-said-they-said of offense-taking. Maybe these are just college kids taking offense at their subjective interpretations of arguably hurtful words, with “discriminatory harassment” serving as an anti-speech cudgel. But the anti-Israel movement has a philosophy whose substantive content doesn’t just put to rest Eidelson’s and Hellman’s challenge; it helps answer all those questions.

Eidelson’s and Hellman’s main contribution to the discourse is arguing that it is not clear that Title VI applies to all forms of antisemitism. Rather, “Title VI recognizes Jewishness only as a racial or ancestral category.” In other words, antisemitism with a religious inflection (“Christ-killer!”), that which taps into derogatory stereotypes (“cheap Jew!”), or devoid of content aside from hostility (“shut up, Jew”) may not count. But holding an event closed to “Ashkenazim,” Jews of European descent, would be a Title VI violation.

The authors think that whether garden-variety campus anti-Zionism implicates ancestral Jewishness is a difficult question. They identify some narrow circumstances in which anti-Zionism could manifest in racial or ancestral terms:

The most we can usefully say is that anti-Zionist acts of exclusion or “shunning” on campus could add up to a racially hostile environment if, but only if, they amount to severe and pervasive harassment even once the set of relevant instances is restricted to those in which (a) an intent to exclude students of Jewish ancestry motivates the exclusion, or (b) it is a student’s perceived Jewish ancestry that grounds an inference about their views regarding Israel. Exclusion of Zionists per se would not suffice.

There is a (c) that can be hard to see, but not because it is well-hidden; only because (and this is the scandal) we are not used to talking about what anti-Zionism is. Contemporary anti-Zionism, the view that the Jewish state of Israel should one way or another cease to exist, in all but the rarest of circumstances takes a form that denigrates Jews on the basis of their shared heritage. More specifically, it necessarily entails telling Jews that their shared heritage is a lie propagated for nefarious purposes but belied by the color of their skin. Today’s anti-Zionism relies on a perception about a Jew’s ancestry—that it is fraudulently concocted—combined with an observation about Jewish racial characteristics.

How such discrimination manifests, and its glaring ancestral-racial qualities, is clear, objective, and inescapable. My own experience as a “visible Jew” illustrates just how.

When I was a law student living on Manhattan’s Upper West Side, I would take the subway to NYU Law’s downtown campus every weekday. Dozens of times over those three years, vagrant straphangers who saw my yarmulke would stand over me and preach—rant is the better word—to the rest of the car about who I really was and the perfidies my people had committed against theirs. These representatives of Black Hebrew Israelites or similar groups announced that white-looking Jews like me are not the real Jews. Rather, Ashkenazi Jews are white usurpers, enslavers, interlopers who lie about their heritage to garner sympathy and extract land and resources from indigenous peoples. We pretend to be heirs to the ancient Israelites, when the real inheritors of the land, tradition, and honor of that people are people of color who pretend-Jews like me oppress to complete our Big Lie. My ancestors apparently did this to black people worldwide. And Jews like me were still fraudsters and poseurs today.

This is easily recognizable as a kind of discrimination based on my ethnic heritage, real and perceived. It directly implicates my lineage as an Ashkenazi Jew by denying that I am descended from Levantine Israelites, singling me out for derision on that basis. It denies Jews the right to self-define as an ethno-religious group. My harassers preferred a conspiracy theory that underscores the Jews’ profound evil. They tell me that I am a fraud and a phony for claiming to be Jewish (real ancestry) while being white (perceived ancestry).

Yet, as I have quipped ever since, I would get off the subway, arrive at NYU Law, and promptly hear the same accusations, only leveled in more sophisticated language. Campus anti-Israel activism is now overwhelmingly “decolonial,” reliant on the claim that Jews are not the rightful sovereigns over Palestine because they are not indigenous. It is therefore eliminationist; the proper outcome is for the colonizers to get out, like the French in Algeria.

My classmates who claim that Israel, alone among the nations of the world, should be dismantled and replaced with a sovereign representing a different ethnic group constitute one kind of singling out. But there was quite another beneath the surface. Israel had to be eliminated, not reformed or compromised with, because it displaced a native population with an exclusive claim to the land. My fellow Jews were aghast. How can educated people say that Jews have no claim to that territory? Education is little defense against just-so conspiracy theories: Sure, ancient Jews lived there before Christian and Muslim Arabs did; but today’s Jews are not the same group, which we know because Jews are white. The position that distinguishes the anti-Zionists from the mere Israel-critics is thus predicated on a profound act of ethnic prejudice: claiming that the Jews who are currently sovereign in Israel are not who they claim to be. In other words, that Ashkenazi Jews (who make up a minority of Israel’s population and only part of its governing coalition) have manipulated, faked, or otherwise fabricated their ethnic heritage in order to steal land from Arabs. It’s subway-rant stuff.

Every time Israel is referred to as “settler-colonial,” the logic of the subway rant is baked in. It simply does not compute without the premise that today’s Jews are not who they claim. When student activists claim that a Jewish state in the Levant is unacceptable because it displaces the true indigenous people with white Europeans—precisely, if not explicitly, the most common form of anti-Zionism today—Jews are being told that they are not who they claim they are. It is per se discriminatory, against Israelis and Jews, on the basis of their real and perceived ethnic heritage, a conspiracy theory like nearly every form of antisemitism.

Seeing that does not require searching for ill motives or intent. It just requires thinking about the ideas being expressed rather than just the words. In other words, we should apply civil rights law to objective discrimination rather than merely explicit discrimination. Our legal standards should take anti-Zionism seriously on its own terms. If civil rights law cannot account for objective but thinly hidden forms of precisely the discriminatory harassment it exists to prevent due to a euphemism loophole that allows favored causes to avoid consequences for advancing a discriminatory movement, then it is not clear what benefit there is to a massive civil-rights enforcement apparatus and expensive campus compliance regimes. 

Once we focus on its objective and unavoidable positions, some apparent mysteries about the campus anti-Israel movement seem much less perplexing. Those who take it on do not think they are participating in a garden-variety political dispute. They are not trying to persuade their fellow students, or anyone else, of the rightness of their position. Nor could they, though they often recur to defensible arguments about Israel’s war conduct, treatment of Palestinians, or other governance issues. Those arguments are not the point, and the tenor of the “debate” over the Middle East would be entirely different if it were; the point is for someone other than Jews to be sovereign over the land that now constitutes Israel. And that is not the kind of position ripe to be advanced through reasoned argument. It can only be accomplished by intimidation, coercion, and misdirection.

Students at Columbia, Harvard, and other elite schools set up encampments in violation of school rules, break into buildings, and deploy any number of other unpopular tactics because they are not trying to persuade. Ask any radical campus group and they will tell you: they are following the lead of the “resistance,” Iran and its terrorist proxies, to make support for Israel anathema among the next generation of Americans. Apparently, Hamas made a habit of telling Israeli hostages the same.

Campus militants make little effort to hide the discriminatory logic of their cause. They count on academics and judges not seeing it for what it really is: A vile antisemitic conspiracy theory about Jews faking their heritage in order to steal from oppressed indigenous people. That is not just a flagrant Title VI violation. It’s an embarrassment to our institutions of higher learning, which have refused even to understand what the demonstrators stand for, and to our nation.