Monday night was an exciting time for international law experts such as Eugene Kontorovich, who must have been sitting with their eyes on their kitchen clock, counting the minutes until midnight. Because at midnight, Kontorovich, a Professor of Law at Northwestern University and a valiant supporter of Israel, tweeted the following:
“HUGE: With midnight coming up and no Jerusalem Embassy waiver signed, it means the law will take full effect. It is a hard deadline, & once waiver missed, it cant be made late.”
HUGE: With midnight coming up and no Jerusalem Embassy waiver signed, it means the law will take full effect. It is a hard deadline, & once waiver missed, it cant be made late.
The sky not falling despite non-signature of waiver. @APDiploWriter @LovedayM
— Eugene Kontorovich (@EVKontorovich) December 5, 2017
The Jerusalem Embassy Act of 1995 initiates and funds the relocation of the Embassy of the United States in Israel from Tel Aviv to Jerusalem. The act also calls for Jerusalem to remain an undivided city and for it to be recognized as the capital of the State of Israel.
The law has never been implemented, because Presidents Clinton, Bush, Obama and Trump have employed a 1998 amendment to the bill allowing them to issue a waiver of the law every six months, explaining their reasons for not implementing Congress’ will – for reasons of national security and international interests.
President Trump last issued his waiver on the embassy move act on May 31, 2017, which meant that his next waiver was expected six months later, on the first business day following November 30, 2017. That was Monday. And the president didn’t issue his waiver.
We’ll skip for the moment the geo-storm that erupted over the possibility that the president would declare that he would obey Congress’ 1995 order, and go straight to an AFP report that the White House, “after a frantic 48 hours of public warnings from allies and private phone calls between world leaders,” announced that Trump would miss the deadline.
“The president has been clear on this issue from the get-go: It’s not a matter of if, it’s a matter of when,” White House spokesman Hogan Gidley stated, promising that a full announcement regarding the embassy move is expected “in the coming days.”
But what about Prof. Kontorovich’s reassurance that “it is a hard deadline, & once waiver missed, it cant be made late,” is he wrong?
Yes and no. The Jerusalem Embassy Act punishes the State Dept. should it disobey the will of Congress, by taking away 50% of its budget for “Acquisition and Maintenance of Buildings Abroad” until the United States Embassy in Jerusalem had officially opened.
In order for that to happen, both houses of Congress must begin a process to apply those penalties. Marshall J. Breger, Professor of Law at the Catholic University of America who served as Special Assistant to President Reagan, wrote in National Review (“Jerusalem Gambit: How We Should Treat Jerusalem Is a Matter of U.S. Constitutional Law as Well as Middle Eastern Politics,” Oct 23, 1995): “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.”
Even assuming that the Republicans, the majority party in both houses, decided to launch an attack against a sitting Republican president, the legislative process involved would likely take months, perhaps even six months—when the next waiver will be due. Assuming the bill to punish the State Dept. for not moving its embassy becomes a law – the president could veto it, requiring a two-third majority in both houses to overturn. It could then go to the Supreme Court, being a question of constitutional powers as much as of foreign policy.
Which probably explains the ending of Prof. Kontorovich’s tweet: “The sky not falling despite non-signature of waiver.”
So, like, curb your enthusiasm?