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Notes -
The FEMA logic is that BDS is intrinsically racist. They stated this directly in their tweet explaining their policy in reaction to the backlash.
Irrespective of whether that's true, there is no explicit intent by Congress here.
There is not some kind of magic escape hatch from constitutional law that is invoked by putatively combating racism. If anything, I would have expected the Biden DOJ to put forward that kind of wonky theory (e.g. in SFFA) not the Trump one.
There is. Christopher Caldwell calls it the Civl Rights Constitution. It's what allows the government to require employers to fire you for racist speech on the job, in order to encourage you not to be racist at home either. (Davis v. Monsanto Chemical Co. 858 F.2d 345). It's also what allows the government to engage in viewpoint discrimination with respect to 501(c)(3) qualification (Bob Jones Univ. v. United States, 461 U.S. 574 (1983))
Bob Jones is gonna come in extremely handy in the current administration v university dustup.
It is. I'd prefer it was overturned and we got the First Amendment back, but that ain't going to happen, so sharpening the other edge of that blade is the next best thing.
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