As President Trump’s visit to the Middle East approaches, the debate over whether he will – or should – use it as an appropriate occasion to deliver on his emphatic campaign promise to move the U.S. embassy from Tel Aviv to Jerusalem gets hotter every day.
But for all the heat being generated, we suggest moving the embassy would not necessarily be the tectonic event many seem to fear.
Mr. Trump’s delay in following through on his embassy promise is reportedly due to advice he’s been receiving that, as a practical matter, a move may trigger Arab violence and/or adversely affect the prospects for renewing negotiations between Israel and the Palestinians.
On the latter point, the president is being told by some that U.S. policy has always been that the resolution of Jerusalem sovereignty issues are properly matters for Israel and Arab (now Palestinian) negotiators and that unilaterally moving the American embassy to the place Israel designates as its capital would be a U.S. acknowledgement of Israeli sovereignty over Jerusalem, which would keep the Palestinians away from any U.S.-sponsored negotiations.
But for the president to be seen as kowtowing to Arab blandishments is certainly unacceptable – for the president personally and for Americans generally. And it is hardly a certainty that breaking with past policy would enrage the Palestinians.
The Jewish Press takes a back seat to no one when it comes to supporting Israel’s sovereignty over Jerusalem, and we would warmly welcome any action that would undergird that principle. But we also feel comfortable in stating that relocating the embassy need not be defined as a precedent-setting recognition of Israeli sovereignty over Jerusalem.
In fact, since 1995, U.S. law both recognizes Jerusalem as the united capital of Israel and mandates that the U.S. embassy in Tel Aviv be moved to Jerusalem. Thus, the Jerusalem Embassy Act of 1995 expressly provides, among other things, that as far as the United States is concerned, every sovereign nation may designate its own capital; that Jerusalem should remain an undivided city; that Jerusalem should be recognized as the capital of Israel; and that “the United States Embassy in Israel should be established in Jerusalem no later than May 3, 1999.”
So the question of U.S. recognition of Jerusalem as the capital of Israel has long been decided and the relocation of the embassy is way overdue. It is hard to see how President Trump would be seen as breaking new ground by simply implementing one part of a law on the books for almost a quarter of a century.
To be sure, there has been much talk that a president has authority under the law – and Presidents Clinton, Bush, and Obama all exercised it – to “waive” the requirement for moving the embassy for six month periods “if he determines and reports to Congress in advance that such….suspension is necessary to protect the national security interests of the United States.”
But that so-called waiver provision is by its terms limited to a national security-driven suspension of a part of the law that prescribes a limitation on how much money the government may spend overseas as long as the embassy is not moved in a timely manner. Indeed, it is not impossible to conjure up situations where national security needs truly require the expenditure of money – such as strengthening defenses around military buildings or arms procurement – irrespective of whether the embassy remained in Tel Aviv.
However, the duty to move the embassy is plainly not waivable and continues until it is, in fact, moved. That presidents have engaged in the sham that there is a national security waiver applicable to the obligation to move the embassy is one of those unfortunate examples of governmental action “hidden in plain sight” that undercuts the notion of America as a nation of laws and not of men.
Parenthetically, the president will have to decide by June 1 as to whether he will seek another six-month “waiver” so he will have just a few days at the outside to go on record on the issue. Hopefully he will follow the law and end the charade of his predecessors.
In any event, applying the waiver provision to the law’s recognition of Jerusalem as Israel’s capital makes no sense.
So how would a simple presidential announcement next week in Jerusalem that preparations were underway to implement the 1995 law mandating the movement of the embassy be received? We suppose it would depend largely on the phrasing and whether it would be made clear that the core decisions were made long ago. Some might call that a less than bold approach. In this instance, we vote for more discretion and less valor.