September 23, 2023

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Moving the US embassy to Jerusalem is also a constitutional issue
US Consulate in East Talpiyot, Jerusalem

From Times of Israel:

 President Barack Obama on Thursday renewed a presidential waiver, again delaying plans to relocate the American Embassy in Israel from Tel Aviv to Jerusalem for another six months.

In keeping with every other presidential administration over the last 20 years, a White House statement cited “national security interests” in waiving Congress’s 1995 decision to recognize Jerusalem as Israel’s capital and transfer its embassy there.

Every president since Bill Clinton has cited national security in presidential waivers signed every six months that have postponed the embassy’s relocation.

What will Trump do on May 1, 2017, the next time the issue comes up?

On one level, all he has to do is to not do anything. If he doesn’t sign the waiver, the embassy will be moved. This would seem on the surface to be the main argument that Trump will move the embassy – he doesn’t actually have to do anything and it will happen pretty much automatically. Or, to be precise, a provision would be triggered where Congress would withhold specified funds from the State Department on how much it can spend on embassies and consulates worldwide until the embassy is officially moved.

But it is a little more complicated than that.

There are actually two reasons that presidents have consistently signed the waiver.

The first is a “national security” argument, which the Jerusalem Embassy Act allows: if the president fears that moving the embassy would upset Arabs enough initiate terror attacks against US interests, then it could be waived.

But the second argument is more fundamental: every president since Clinton has stated that the act infringes on the Presidential prerogative where he or she has exclusive authority to recognize foreign sovereignty over territory. In short, they argue that it is unconstitutional. And the Justice Department agrees, in this memo they wrote in 1995:

In general, because the venue at which diplomatic relations occur is itself often diplomatically significant, Congress may not impose on the President its own foreign policy judgments as to the particular sites at which the United States’ diplomatic relations are to take place. More specifically, Congress cannot trammel the President’s constitutional authority to conduct the Nation’s foreign affairs and to recognize foreign governments by directing the relocation of an embassy. This is particularly true where, as here, the location of the embassy is not only of great significance in establishing the United States’ relationship with a single country, but may well also determine our relations with an entire region of the world. Finally, to the extent that S. 770 is intended to affect recognition policy with respect to Jerusalem, it is inconsistent with the exclusivity of the President’s recognition power.

…It does not matter in this instance that Congress has sought to achieve its objectives through the exercise of its spending power, because the condition it would impose on obligating appropriations is unconstitutional.

…For the above reasons, we believe that the bill’s provisions conditioning appropriated funds on the building and opening of a United States Embassy in Jerusalem are unconstitutional.

So if Trump is serious about moving the embassy, and he wants to maintain the constitutional rights of the Presidency, he would need to pro-actively move the embassy and recognize at least part of Jerusalem as being in Israel, not merely avoid signing the waiver this coming May.

The big question is therefore – will he?

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