During the course of the presidential campaign, President-elect Donald Trump promised on several occasions that he would move the United States embassy in Israel from Tel Aviv to Jerusalem. (Jerusalem is designated by Israel as its capital although it is not formally recognized as such by the international community.)
Israel is the only country in the world whose choice of capital city is not honored internationally, and Mr. Trump vowed to set this right. Since his victory, though, there has been speculation in some quarters as to whether Mr. Trump would carry through on his commitment or abandon it after winning the election, putting him in the same place as his predecessors.
But it seems the president-elect is someone who would honor his word on this as both a matter of personal principle and a blow for equity and justice. And since Mr. Trump aspires to establish a “law and order” administration, we think it relevant to note that since the enactment of the Jerusalem Embassy Relocation Act of 1995 – which required that the U.S. embassy in Israel be relocated from Tel Aviv to Jerusalem by 1999 – the movement of the embassy has not been a mere matter of an elected official making good on a campaign promise but rather a legal imperative.
Yet Presidents Clinton, Bush 43, and Obama avoided implementing the law by reading into it a fictional presidential waiver of the relocation requirement. We are encouraged that Mr. Trump has signaled that he will have no truck with such legal legerdemain.
Here are some pertinent excerpts from the relocation law and how three presidents have distorted it. Only Section 3 and Section 7 of the law need concern us here:
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.
***
SEC. 7.: PRESIDENTIAL WAIVER.
(a) Waiver Authority
(1) Beginning on October 1, 1998, the President may suspend the limitation 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 limitation for an additional six-month period at the end of any period during which the suspension is in effect under this subsection 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.
So every six months following the implementation date for moving the embassy, Presidents Clinton, Bush, and Obama sent Congress the following notification:
Pursuant to the authority vested in me as President by the Constitution and the laws of the United States, including section 7(a) of the Jerusalem Embassy Act of 1995… (the “Act”), I hereby determine that it is necessary to protect the national security interests of the United States to suspend for a period of 6 months the limitation set forth in Sec. 3(b) of the Act.
Plainly, Sec.3 (a) declares that the embassy must be moved, no ifs, ands, or buts. Equally as plain, if the embassy is not relocated, Sec. 3(b) imposes, as a penalty, substantial restrictions on the ability of the State Department to spend money on “acquisition and maintenance of buildings abroad.”
However, when one reads the waiver/suspension provision, Sec. 7 (a)(1), it explicitly says that “the President may suspend the limitation set forth in Sec. 3 (b)…to protect the national security interests of the United States.”
If words mean anything, the president thus may suspend the Sec. 3 (b) penalty provision – that is, the limitation on the ability to spend funds for acquisition and maintenance. But nowhere is the president given the authority to suspend the Sec. 3(a) legal obligation to move the embassy from Tel Aviv to Jerusalem. Indeed, no president has ever even referred to a suspension of Sec.3 (a).
Ironically, every time Mr. Trump’s predecessors sent the notification to Congress they implicitly reaffirmed the general applicability of the obligation to move the embassy to Jerusalem.
We are also constrained to note the outrageous threats from Palestinian Authority about meeting any attempt to move the embassy with dire measures. Mr. Trump is not likely to be intimidated by such threats.
We are optimistic that as Mr. Trump as president will finally bring the U.S. government into compliance with an important congressional enactment.