Jerusalem Embassy Act

Background

Jerusalem holds unique spiritual and religious significance for the world's Abrahamic religions of Judaism, Christianity, and Islam. Following the 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, in a de jure sense, Jerusalem was part of Palestine and 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 continues to be, delayed by successive United States government in order to appear neutral on the issue of Jerusalem.

Details

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.

S. 1322 also stated that "Jerusalem should be recognized as the capital of the State of Israel; and the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999".

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 has been achieved in the physical relocation of the U.S. Embassy to Jerusalem to date.

Timetable

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.— (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 on 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. Since the legislation's introduction, the consensus has been that this action poses considerable risk to United States national security at home and abroad for this reason.

Constitutional separation of powers

Under the Constitution of the United States the President has exclusive authority to recognize foreign sovereignty over territory. The Justice Department Office of Legal Counsel concluded that the provisions of the Embassy Relocation Act inveighed 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 if somehow it was usurping the Executive's authority or power over matters of foreign affair had played subtle role in shaping the debate at the time. President Clinton had taken the unusual step of not signing the Embassy Act into law once Congress had presented it to him but rather let 10 days of inaction pass, allowing the bill to return to Congress and automatically become law by Constitutional "default" to show his disapproval. The non-action on Clinton's part reinforced this sticking point between the branches of Federal government without the possible public fallout from taking a "negative stand" on what appeared to be favorable, veto-proof legislation on the surface overall and at the time.

Presidential Waiver

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 it already had.

Since 1998, the relocation of the embassy from Tel Aviv has been 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.— (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. A re-assessment has to take place every six months however. 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.

Developments

Noteworthy developments since the passage of the Act and well past the initial May 31, 1999 deadline's expiration:

Of the 22 Presidential Determinations to suspend the limitations that have been issued between 1998 and the fall of 2009, only the Bush era issuances, the bulk of the determinations to date, included the wording:

::"[The current] Administration remains committed to beginning the process of moving our embassy to Jerusalem";

…while President Obama's issuances mirror the wording first used by President Clinton.

Section 214 of the Foreign Relations Authorization Act, FY 2003 states:

::"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".

The U.S. Congress, however, has the "power of the purse", and could prohibit the expenditure of funds on any embassy located outside Jerusalem. The U.S. Congress has not managed to repeat the incorporation or passage of language similar to Section 214's needed to even be able to attempt forcing a foreign policy change by withholding funding.

Claims have arisen that a result of the Embassy Act, official U.S. documents and web sites refer to Jerusalem as the capital of Israel, although this has been the case in many instances before the Act became law. The CIA World Factbook has carried the typical Federal citation concerning Israel's capital and the absence of the usual concentration of foreign embassies being within its boundaries or proximity.

A potential site for a future US Embassy office building has been demarcated by Israel and the US, and is maintained in the neighborhood of Talpiot. Currently, the United States has three diplomatic office facilities in Jerusalem: a consulate on Agron Road in West Jerusalem, a consular annex on Nablus Road in East Jerusalem and a new office annex in the neighborhood of Arnona, located on an area of "no man's land" between East and West Jerusalem, which opened in October 2010.

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.