The Jerusalem Embassy Act of 1995 is a public law of the United States passed by the 104th Congress on October 23, 1995. It was passed for the purposes of initiating and funding the relocation of the Embassy of the United States in Israel from Tel Aviv to Jerusalem, no later than May 31, 1999, and attempted to withhold 50 percent of the funds appropriated to the State Department specifically for "Acquisition and Maintenance of Buildings Abroad" as allocated in fiscal year 1999 until the United States Embassy in Jerusalem had officially opened. The act also called for Jerusalem to remain an undivided city and for it to be recognized as the capital of the State of Israel. Israel's declared capital is Jerusalem, but this is not internationally recognized, pending final status talks in the Israeli–Palestinian conflict. The proposed law was adopted by the Senate (93–5), and the House (374–37).
Despite passage, the law remained unimplemented by Presidents Clinton, Bush, and Obama, President Donald Trump signed the waiver in June 2017 before announcing the recognition of Jerusalem as Israel's capital on December 6, 2017, and beginning the relocation of the embassy.
|Jerusalem Embassy Act of 1995|
|Long title||An act to provide for the relocation of the United States Embassy in Israel to Jerusalem, and for other purposes.|
|Enacted by||the 104th United States Congress|
|Effective||November 8, 1995.|
|Statutes at Large||109 Stat. 398|
|U.S.C. sections created||None|
Jerusalem holds unique spiritual and religious interests, such as Holy Places and religious buildings or sites, among the world's Abrahamic religions of Judaism, Christianity, and Islam. Following World War I, the victorious Principal Allied Powers recognized these as "a sacred trust of civilization", and stipulated that the existing rights and claims connected with them should be safeguarded in perpetuity, under international guarantee. The terms of the British Balfour Declaration of 1917 were included in the Mandate for Palestine by the League of Nations. The US government was not a party to these agreements; but stated official foreign policy in 1919 was to ‘acquiesce’ in the Balfour Declaration, but not officially support Zionism. On September 21, 1922, the US Congress passed a joint resolution stating its support for a homeland in Palestine for the Jewish people but not at the expense of other cultures present at the time. This occurred virtually the same day the Palestine Mandate was approved by the League of Nations; although official government findings about the affected peoples' choices concerning self-determination were available in government circles, they were withheld from the public until the following December. US foreign policy remained unchanged. These competing nationalist claims led to increasing civil violence during the inter-war period; following World War II, the "Question of Palestine" was placed before the United Nations, as the League's successor agency.
On November 29, 1947, the UN General Assembly adopted Resolution 181, the United Nations Partition Plan for Palestine; it contained a recommendation that Jerusalem be placed under a special international regime, a corpus separatum, administered by the United Nations and be separate from both the Jewish and Arab states envisioned. Following the conflict that ensued, cease-fires and the 1949 Armistice Agreements were negotiated and accepted by both sides. One of these resulted, in part, in a temporary division of Jerusalem. The relevant Armistice Agreement with Jordan was signed on April 3, 1949, but it was considered internationally as having no legal effect on the continued validity of the provisions of the partition resolution for the internationalization of Jerusalem. On April 25, 1949, King Abdullah officially changed the name of Transjordan to the Hashemite Kingdom of Jordan. He had secured the support of Great Britain (albeit qualified—Great Britain did not recognize the incorporation of East Jerusalem, maintaining that it ought to be part of a corpus separatum, an international enclave).
On December 5, 1949 the Israeli Cabinet, meeting in Tel Aviv, declared Jerusalem the capital of Israel, and on January 23, 1950, the First Knesset proclaimed that "Jerusalem was, and had always been, the capital of Israel." Moreover, on April 24, 1950, the Jordan House of Deputies and House of Notables, in a joint session, adopted a resolution annexing the West Bank and Jerusalem. Because the status of Jerusalem had been included previously in the UN Partition Plan, most countries did not accept this Israeli position, and most embassies have been located elsewhere.
The United States has stated that its policy on Jerusalem refers specifically to the geographic boundaries of the area that were set out for the "City of Jerusalem", or Corpus Separatum, in Resolution 181, but since 1950, US diplomats have traveled regularly to Jerusalem from the US Embassy in Tel Aviv to conduct business with Israeli officials. The United States has also stated that Jerusalem was part of Mandate Palestine, and in a de jure sense, has not since become part of any other sovereignty.After the capture of the entire city and the adjacent West Bank in the 1967 Six Day War, the United States again reaffirmed the desirability of establishing an international regime for the city of Jerusalem.
Advocacy for the Jerusalem Embassy Act reached a zenith during particularly critical times in negotiations for the Oslo Accords of the peace process, despite opposition from both the Israeli and American administrations. The embassy move was, and continued to be, delayed by successive United States government in order to appear neutral on the issue of Jerusalem. However, on 6th December 2017, President Donald Trump announced that the US recognizes Jerusalem as the capital of Israel, and instructed the State Department to begin preparations to move the embassy.
The act asserted that every country has a right to designate the capital of its choice, and that Israel has designated Jerusalem. The act notes that "the city of Jerusalem is the seat of Israel's President, Parliament, and Supreme Court, and the site of numerous government ministries and social and cultural institutions." Jerusalem is defined as the spiritual center of Judaism. Furthermore, it stipulates that since the reunification of Jerusalem in 1967, religious freedom has been guaranteed to all.
Although the Senate and House votes preceded visits by then Israeli Prime Minister Yitzhak Rabin and Jerusalem Mayor Ehud Olmert to Washington to celebrate the 3000th anniversary of King David's declaration of Jerusalem as the capital of the Jews, little to no progress were achieved in the physical relocation of the U.S. Embassy to Jerusalem until December 2017.
Section 3 of the Act outlined the U.S. policy and set the initial parameters for the Secretary of State to report in order to receive the full funding — again, with a May 1999 target deadline for the appropriations. The section also briefly stated U.S. policy concerning the matter.
Sec. 3. Timetable.
- (a) Statement of the Policy of the United States.—
- (1) Jerusalem should remain an undivided city in which the rights of every ethnic and religious group are protected.
- (2) Jerusalem should be recognized as the capital of the State of Israel; and
- (3) the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999.
- (b) Opening Determination.—
- Not more than 50 percent of the funds appropriated to the Department of State for fiscal year 1999 for "Acquisition and Maintenance of Buildings Abroad" may be obligated until the Secretary of State determines and reports to Congress that the United States Embassy In Jerusalem has officially opened.
The major roadblock has been the question of what effect, if any, the relocation may symbolize for other interested parties or neighboring nations involved in the ongoing and sometimes quite contentious Mid-East diplomacy and foreign relations. For this reason, since the legislation's introduction, the consensus has been that this action poses considerable risk to United States national security at home and abroad.
Under the Constitution of the United States the President has exclusive authority to recognize foreign sovereignty over territory. The Justice Department's Office of Legal Counsel concluded that the provisions of the Embassy Relocation Act "invade exclusive presidential authorities in the field of foreign affairs and are unconstitutional."
Former U.S. presidents Bill Clinton, George W. Bush and Barack Obama have alluded to or explicitly stated the belief that Congressional resolutions attempting to legislate foreign policy infringe upon the Executive's authority and responsibility to carry out sound and effective U.S. foreign relations.
Regarding the status of Jerusalem specifically, President Bush had deemed Congress' role as merely "advisory", stating that it "impermissibly interferes with the President's constitutional authority". The U.S. Constitution reserves the conduct of foreign policy to the President; resolutions of Congress, such as the ones found in the Authorization Act of 2003 that included the Jerusalem Embassy Act's provisions, makes the arguments in favor of legislating foreign policy from Congress extremely problematic if not arguably invalid for that Constitutional reason.
Even from the Embassy Act's legislative beginnings, the question of Congress' over-reach, and whether it somehow usurped the Executive's authority or power over matters of foreign affairs, had played a subtle role in shaping the debate at the time. President Clinton took the unusual step of not signing the Embassy Act into law once Congress presented it to him, but instead, to show his disapproval, let 10 days of inaction pass, allowing the bill to return to Congress and automatically become law by Constitutional "default". Clinton's non-action reinforced this sticking point between the branches of the Federal government, without the potential public fallout from taking a "negative stand" on what appeared to be favorable, veto-proof legislation on the surface at the time.
This constitutional question was apparent while the legislation was working its way through both chambers; Sen. Dole's amendment adopted into the introduced language included a provision that, in part, returned to the Executive Branch the power over foreign affairs that it already had.
From 1998 to June 2017, the relocation of the embassy from Tel Aviv was suspended by the sitting President semi-annually, based on national security concerns as provided for in section 7 of the Act.
Sec. 7. Presidential Waiver.
- (a) Waiver Authority.—
- (1) Beginning on October 1, 1998, the President may suspend the limitations set forth in section 3(b) for a period of six months if he determines and reports to Congress in advance that such suspension is necessary to protect the national security interests of the United States.
- (2) The President may suspend such limitations for an additional six-month period at the end of any period during which the suspension is in effect under this subsections if the President determines and reports to Congress in advance of the additional suspension that the additional suspension is necessary to protect the national security interests of the United States.
- (3) A report under paragraph (1) or (2) shall include—
- (A) a statement of the interests affected by the limitation that the President seeks to suspend; and
- (B) a discussion of the manner in which the limitation affects the interests.
- (b) Applicability of Waiver to Availability of Funds.—
- If the President exercises the authority set forth in subsection (a) in a fiscal year for the purpose set forth in such section 3(b) except to the extent that the limitation is suspended in such following fiscal year by reason of the exercise of the authority in subsection (a).
Since this provision went into effect in late 1998, all the presidents serving in office during this period have determined moving forward with the relocation would be detrimental to U.S. national security concerns and opted to issue waivers suspending any action on this front. However, a re-assessment has to take place every six months. In response, members of Congress have begun to include language to do away with the President's exclusivity in making the determinations or flat-out remove the waiver provision completely from the Embassy Act altogether.
Noteworthy developments since the passage of the Act and well past the initial May 31, 1999 deadline's expiration:
::"[The current] Administration remains committed to beginning the process of moving our embassy to Jerusalem";
::"The Congress maintains its commitment to relocating the United States Embassy in Israel to Jerusalem and urges the President [...] to immediately begin the process of relocating the United States Embassy in Israel to Jerusalem".
In March 2011 a new bill, the Jerusalem Embassy and Recognition Act of 2011 (H.R. 1006), was introduced. Cosponsored by fourteen Members of Congress, including House Europe Subcommittee Chairman Dan Burton (R), House Foreign Affairs Committee Chairwoman Ileana Ros-Lehtinen (R) and House Middle East Subcommittee Chairman Steve Chabot (R), the bill would discontinue the Presidential waiver authority included in the 1995 Act, relocate the U.S. Embassy in Tel Aviv to Jerusalem, and affirm the city as the undivided capital of Israel. This bill died at the end of 2011, having failed to clear the House Foreign Affairs Committee.
President Donald Trump signed the embassy waiver on June 1, 2017. The White House meanwhile stated that it did not represent a weakening of his support for Israel. It added that he stood by his promise of moving the embassy. On June 5, 2017, the U.S. Senate unanimously passed a resolution commemorating the 50th anniversary of reunification of Jerusalem by 90-0. The resolution reaffirmed the Jerusalem Embassy Act and called upon the President and all United States officials to abide by its provisions.
On December 6, 2017, President Trump announced the decision to officially recognize Jerusalem as the capital of the State of Israel, and ordered the State Department to begin the process of relocation of the U.S. Embassy from Tel Aviv to Jerusalem. After the announcement, President Trump signed a Presidential Memorandum for the Secretary of State (Presidential Determination No. 2018-02): a declaration that waived the 50% funding cap normally in place when a new Embassy is opened, stating that the suspension is necessary to "protect the national security interests of the United States." Following the announcement, Trump signed the embassy waiver whilst ordering the beginning of the relocation. Secretary of State Rex Tillerson stated that the relocation process will begin immediately. The relocation itself however could take years to complete.
The Court ascertained the legal significance of the ‘sacred trust of civilization’ of the League of Nations (LoN) in respect of the 1922 Palestine Mandate as the origin of the present responsibility of the United Nations.
But in the end, using the spending power to curtail the President's Article II authority won't work. Congress cannot use the power of the purse to seize a power textually committed to the Executive alone. While Congress can probably appropriate money for the construction of a building in West Jerusalem (and create a financial penalty if no construction takes place) it cannot use the "spending power" to order the Executive either in 1996 or 1999 to make that building an embassy rather than a consulate or cultural center. Nor can it order the President to recognize Israeli sovereignty over Jerusalem.