The Biden administration and the 118th Congress—particularly the Senate—failed the American Jewish community. The reelection of President Donald Trump and the Republican reclamation of both chambers represents a crucial opportunity to do better, and to reset federal policies on unlawful antisemitism.
As it relates to the executive branch, law enforcement often depends on prosecutorial discretion, and for the last four years there has been little appetite to counter the rise in anti-Jewish hate. The incoming administration has already signaled their plan to reverse this trend in a number of important ways.
First, they have committed to enforcing Title VI of the Civil Rights Act of 1964. Under Title VI, institutions that take federal funds have an obligation to protect their Jewish students, and all students, from discrimination based on race, color, or national origin. During his first term Trump issued Executive Order 13899 on Combatting Antisemitism, which, among other things, incorporated the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism into Title VI. Because Jewish identity is so multifaceted (incorporating aspects of race, ethnicity, religion, and national origin), without a standard definition for authorities to reference when analyzing the intent behind illegal discriminatory actions, it is too easy for antisemites to hide behind this ambiguity and commit unlawful acts against Jews with impunity. The executive order solved that problem by requiring the relevant authorities to simply consider, as contextual rebuttable evidence, the gold-standard definition of antisemitism when assessing the motivation behind already unlawful behavior, if there is an allegation that the target was chosen because of an aspect of their Jewish identity.
In theory, this should have clarified once and for all that discriminating against Jewish people for any aspect of their Jewish identity, including a real or perceived connection to the State of Israel, is unlawful—but for the last four years the Department of Education has repeatedly delayed issuing the regulations needed to fully implement the order. The new administration must immediately issue the proposed regulations to give the order full effect and consider expanding its application to other federal antidiscrimination laws.
Second, the administration has signaled that they will enforce the various laws against providing support for terrorism. Among them, the federal Anti-Terrorism Act (ATA) criminalizes knowingly providing resources to designated foreign terrorist organizations the way that some pro-Hamas groups are doing, and the Immigration and Nationality Act allows for the deportation of individuals unlawfully importing terrorism and anarchy. At the same time, the IRS already has authority to revoke the tax-exempt status of organizations funneling donations to terrorist entities because the activities of a Section 501(c)(3) organization must not be "illegal, contrary to a clearly defined and established public policy, or in conflict with express statutory restrictions."
Third, the federal government must enforce laws requiring the disclosure of foreign funding in educational institutions. Section 117 of the Higher Education Act obligates schools to report foreign gifts above specific thresholds to the Department of Education. Yet, recent studies reveal widespread noncompliance, with billions of dollars in unreported funds flowing into U.S. campuses from authoritarian regimes in the Middle East. Research also found a troubling correlation between the receipt of these funds and the erosion of free speech norms, alongside a sharp increase in antisemitic incidents. According to the Institute for the Study of Global Antisemitism and Policy, from 2015 to 2020, institutions that accepted this undocumented money experienced, on average, 300 percent more antisemitic incidents than those that did not. Penalties for noncompliance should include substantial fines and the withholding of additional grants.
Fourth, the federal government must dismantle the networks of organized antisemitic perpetrators. Much of the recent unrest stems from radical organizations preying on the impressionable and uninformed, and those groups that have been working in concert to commit unlawful acts should be held fully accountable. For example, Section 241 of Title 18 of the U.S. Code—part of the Ku Klux Klan Acts—criminalizes conspiracies to injure, oppress, threaten, or intimidate individuals exercising constitutional or federal rights. Similarly, the Racketeer Influenced and Corrupt Organizations Act (RICO) enhances penalties for crimes committed as part of organized criminal enterprises. There are numerous cases where antisemitic groups have engaged in actions that qualify as predicate acts under these statutes, and they should be prosecuted to the fullest extent of the law.
From the legislative side, despite the unprecedented rise in antisemitic incidents across the country—including everything from harassment to hate crimes—Congress has utterly failed to pass any meaningful legislation to help protect the Jewish community. In May, the Republican led House did pass the Antisemitism Awareness Act, with broad bipartisan support. When it got to the Senate however, former Majority Leader Chuck Schumer (D-NY) sat on it for six months before halfheartedly attempting to drop it into a larger legislative package, an effort which flamed out in a flurry of predictable politics. Reports indicate that the bill would have passed the Senate with wide bipartisan support, but was not called out of fear that a vote might have exposed some antisemitism on the progressive left. And so instead of protecting Jewish people, legislators protected themselves.
Moving forward, Majority Leader John Thune (R-SD) should make lemonade from lemons, and build off the bipartisan momentum created by the AAA to pass an even broader version of the bill. The AAA simply codified Trump's executive order requiring authorities to consider the IHRA definition when assessing unlawful discriminatory behavior under Title VI, and while it would have gone a long way towards solving an equal protection problem that has long plagued the Jewish community, it would not have gone far enough. Since the time that the AAA was filed it has unfortunately only become clearer that the Jewish community needs their protections clarified in other contexts as well.
An excellent model for the new Congress to follow is the Define to Defeat Act, which was introduced in the House by outgoing Rep. Anthony D'Esposito (R-NY). That bill simply extends the AAA to include other federal anti-discrimination laws under the exact same framework, and it should benefit from the exact same wide bipartisan support: It is hard to imagine, for example, lawmakers supportive of Jewish people being properly protected under Title VI of the Civil Rights Act (which deals with higher education), but not, for example, under the employment provisions in Title VII of that very same law.
Once these protections are clarified, and the executive branch enforces them, the Jewish community will finally feel safe.
A whole of government approach is not only correct and efficient but also strategically advantageous. It would allow for both congressional and litigation discovery mechanisms to uncover and dismantle the funding networks that sustain and propagate terror-supporting movements. It would also shed light on the underlying motives and broader goals of their architects—many of whom are not merely targeting Jews, but are also actively working to undermine the stability of Western society. This might help remind our fellow citizens that antisemitism is often the precursor to broader societal decay, and combating it is not only a moral obligation but an act of self-preservation for the nation as a whole.
Dr. Mark Goldfeder is a law professor and CEO of the National Jewish Advocacy Center. Follow him on X @markgoldfeder
The views expressed in this article are the writer's own.
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