Jerusalem Embassy Act
|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|
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 United States has withheld recognition of the city as Israel's capital. The proposed law was adopted by the Senate (93–5), and the House (374–37).
Since passage, the law has never been implemented, because of opposition from Presidents Clinton, Bush, and Obama, who view it as a Congressional infringement on the executive branch's constitutional authority over foreign policy; they have consistently claimed the presidential waiver on national security interests.
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.
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 has been achieved in the physical relocation of the U.S. Embassy to Jerusalem to date.
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 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.
U.S. presidents Bill Clinton, George W. Bush, and now 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.
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.—
- (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. 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.
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.
- Jerusalem Embassy Act of 1995, Pub.L. 104–45, Nov 8, 1995, 109 Stat. 398.
- Breger, Marshall J. (October 23, 1995). "Jerusalem Gambit: How We Should Treat Jerusalem Is a Matter of U.S. Constitutional Law as Well as Middle Eastern Politics". National Review. 47 (20): 41–4.
- On the passage of S. 1322, the Jerusalem Embassy Act of 1995, Roll call vote 496, via Senate.gov
- On the passage of S. 1322, the Jerusalem Embassy Act of 1995, Roll call vote 734, via Clerk.House.gov
- League of Nations Mandate for Palestine, Article 28.
- "Construction of a wall (advisory opinion)", Reports, ICJ, 2004, pp. 165 para. 70, 188 para. 129.
- de Waart, Paul JIM (2005), "International Court of Justice Firmly Walled in the Law of Power in the Israeli–Palestinian Peace Process", Leiden Journal of International Law, 18 (3): 467–87, doi:10.1017/S0922156505002839,
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.
- Walworth (1986) 473-83, esp. p. 481; Melvin I. Urofsky, American Zionism from Herzl to the Holocaust, (1995) ch. 6.
- Brecher, Frank W (1991), "1–4", Reluctant Ally: United States Foreign Policy toward the Jews from Wilson to Roosevelt.
- "372", Pub. Resolution No. 73, 42 Stat. 1018.
- Rubenberg, Cheryl A (1986). Israel and the American National Interest: A Critical Examination. University of Illinois Press. p. 27. ISBN 0-252-06074-1.
- William T. Ellis, Introduction (3 December 1922). "Crane and King' Long-Hid Report on the Near East" (PDF). NYTimes.com. The New York Times. The Editor and Publisher. Retrieved 24 August 2013.
- The Avalon Project: Jordanian-Israeli General Armistice Agreement, April 3, 1949
- See "Corpus Separatum §33 Jerusalem" Marjorie M. Whiteman editor, US State Department Digest of International Law, vol. 1 (Washington, DC: U. S. Government Printing Office, 1963) pages 593-4;Foreign relations of the United States, 1948. The Near East, South Asia, and Africa (in two parts) Volume V, Part 2, Page 748; "Governing Jerusalem: Again on the world's agenda", by Ira Sharkansky, Wayne State University Press, 1996, ISBN 0-8143-2592-0, page 23; and John Quigley, "The Legal Status Of Jerusalem Under International Law, The Turkish Yearbook Of International Relations, [VOL. XXIV, 1994] pp 11-25
- THE CONSTITUENT ASSEMBLY: FIRST KNESSET 1949-1951. Annexation of the West Bank by the Hashemite Kingdom of Jordan
- Martin Gilbert, Jerusalem in the Twentieth Century (New York, 1996), pp. 243-244.
- Jordanian Annexation of West Bank- Resolution Adopted by the House of Deputies, 24 April, 1950
- Gilbert, p. 253.
- Foreign Relations of the United States, 1961-1963: Near East, 1962-1963, V. XVIII. DC: GPO, 2000, 152. Memorandum of conversation, February 7, 1963. Crawford (NE)-Campbell (IO)-Bar-Haim (Israeli Embassy) meeting: U.S. position on the status of Jerusalem
- See General Assembly, A/L.523/Rev.1, 4 July 1967
- Daniel Levy,Is it Good for the Jews?, The American Prospect, June 2006
- Jewish SF.
- See Restatement (3rd) Foreign Relations Law of the United States, American Law Institute, 1986, §§ 203 Recognition or Acceptance of Governments and §§ 204 Recognition and Maintaining Diplomatic Relations Law of the United States.
- See Justice Department Memorandum Opinion For The Counsel To The President, May 16, 1995 
- Signing Statement by the President on H.R. 1646, the Foreign Relations Authorization Act, FY 2003, September 30, 2002, NARA Archives.
- Press Secretary Briefing, October 24, 1995, White House, National Archives and Records Administration.
- Article I, Section 7, of the Constitution of the United States.
- Congressional Record, Notes & Major Actions on the Embassy Act, S. 1322, 104th Congress, OFR Archivist of the United States.
- 111th Congress (2009) (Nov 5, 2009). "Jerusalem Embassy Relocation Act of 2009". S. 2737. GovTrack.us. Retrieved Dec 7, 2009.
- 111th Congress (2009) (Jul 30, 2009). "Jerusalem Embassy and Recognition Act of 2009". H.R. 3412. GovTrack.us. Retrieved Dec 7, 2009.
- Compiled List of Presidential Determinations, Addendum to Public Law 104–45, Office of the Federal Register (FR pp compilation)
- 107th Congress (2001) (Apr 27, 2001). "§ 214. Foreign Relations Authorization Act, FY 2003". H.R. 1646. USA: GovTrack.
- Marshall J. Breger (Oct 23, 1995). "Jerusalem Gambit: How We Should Treat Jerusalem Is a Matter of U.S. Constitutional Law as Well as Middle Eastern Politics". National Review. Gale. Retrieved Dec 7, 2009.
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.
- Unsuccessful bills introduced to take certain steps toward the recognition by the U.S. of Jerusalem as the capital of Israel:
- 110th Congress (2007) (Feb 7, 2007), "H.R. 895", Legislation, USA: GovTrack, 1. United States Policy Regarding Jerusalem as the Capital of Israel, retrieved Dec 7, 2009
- 109th Congress (2005) (Feb 2, 2005). "H.R. 588". Legislation. USA: GovTrack. Retrieved Dec 7, 2009.
- 108th Congress (2003) (Jan 7, 2003). "H.R. 167". Legislation. USA: GovTrack. Retrieved Dec 7, 2009.
- 107th Congress (2001) (Apr 26, 2001). "H.R. 1643". Legislation. USA: GovTrack. Retrieved Dec 7, 2009.
- 107th Congress (2001) (Feb 13, 2001). "H.R. 598". Legislation. USA: GovTrack. Retrieved Dec 7, 2009.
- 106th Congress (1999) (Aug 5, 1999). "H.R. 2785". Legislation. USA: GovTrack. Retrieved Dec 7, 2009.
- 106th Congress (1999) (Jul 15, 1999). "H.R. 2529". Legislation. USA: GovTrack. Retrieved Dec 7, 2009.
- 106th Congress (1999) (Jul 14, 1999). "H.R. 2515". Legislation. USA: GovTrack. Retrieved Dec 7, 2009.
- "Israel → Government → Capital", World FactBook, USA: Central Ingelligence Agency, 2011.
- New US consulate to open in Jerusalem, but where's the embassy?
- Diament, Nathan (March 22, 2011). "OU Commends Introduction of 2011 Jerusalem Embassy Act". OU Institute for Public Affairs. Retrieved March 22, 2011.
- Sample of Presidential Determination to suspend