Trump didn’t sign the Jerusalem waiver. Now what?

[US Quietly Working on Site for Jerusalem Embassy]

By JNi.Media

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.”

Eugene Kontorovich
@EVKontorovich

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

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?

December 5, 2017 | 16 Comments »

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16 Comments / 16 Comments

  3. Trump did his part in ordering the moving of the US Embassy to Jerusalem plus officially recognizing the reality that Jerusalem is the capital of Israel.

    In his speech was an important part that some may overlook. He said he would accept a two state solution provided that both parties agree to it. This provides Israel a veto over a Palestinian State. This will keep a Palestinian State from occurring certainly with all the demands they put on Israel.

  4. @ Felix Quigley:
    Do agree with Felix on that this was a big day and Trump did the right thing. He is the only POTUS who is keeping his campaign promise of moving the embassy.

  6. I no longer get you commenters on Israpundit. I just read your almost bored response and am amazed. A few hours ago I wrote o Facebook…”A GREAT DAY! I STOOD ALONE ON THE LEFT AS A TROTSKYIST TO BACK DONALD TRUMP FROM THE BEGINNING.

    A great day! So many broken promises from past Presidents but before one year is out President Donald Trump carries out his promise to recognize Jerusalem as the capital city of the Jews. The American Embassy a gigantic undertaking in this ultra security sensitive part of the world will follow in due course. I was right to stand alone on the left as a socialist and back Trump from the beginning.”

  7. @ Sebastien Zorn:

    TV: Netanyahu and aides were ‘active partners’ with Trump team on Jerusalem move
    PM and his advisers have been ‘encouraging, supporting, reassuring’ the US administration, while the Palestinians knew nothing/
    Israel’s Prime Minister Benjamin Netanyahu and his aides have been “active partners” working in “total coordination” with US President Donald Trump and his administration in the lead-up to the president’s anticipated speech Wednesday recognizing Jerusalem as Israel’s capital and declaring his intended relocation of the US Embassy from Tel Aviv to Jerusalem, Israel’s Hadashot TV said Tuesday evening.

    Trump’s phone call to Netanyahu on Tuesday updating him on his scheduled Wednesday speech was not their first recent conversation on the highly sensitive subject, Hadashot news reported. Netanyahu’s team has been “encouraging, supporting, [and] reassuring” the Trump team over the likely fallout, the TV report said, “and this total coordination came while the Palestinians knew nothing about this move” until very recently. “They’d heard nothing about it.”

    Continue at https://www.timesofisrael.com/tv-netanyahu-and-aides-were-active-partners-with-trump-team-on-jerusalem-move/

  8. This is more reliable. I mean, the King of Jordan and Abbas wouldn’t lie, right?
    Then again, I think I’ll just wait for tomorrow and see what the President says.

    http://www.jewishpress.com/news/eye-on-palestine/trump-tells-abbas-abdullah-the-embassy-is-moving-to-jerusalem/2017/12/05/

    Incidentally, don’t you think that inside sources who purport to reveal the President’s plans when he wants to keep them under wraps are suspicious to begin with?

  10. Almost makes me want to see the move delayed. The State Department should be abolished and replaced, everyone fired and replaced. It’s aways been anti-semitic. It bears some responsibility for the Shoah, for all those who were not rescued but could have been, from stonewalling applications and not filling the quotas, to censuring and recalling Varian Frye, to refusing to bomb the railroad tracks or issue the same chemical warfare ultimatum made to Japan and Germany on behalf of the Jews, to refusing to pressure the British to let Jews in to Palestine. It’s always been hostile to Israel, from day one, opposing independence, the arms embargo during the war of independence, threatening to criminalize contributions to Israel during the 56 war the Two State Solution, the Iran deal, the railroading of Pollard. The punishment part would be a nice first step.
    How much of the national debt would be solved by simply firing useless, hostile branches of government wholesale, The State Dept., the Post Office, The Dept. of Education, the National Endowment for the Arts for starters.

  11. I don’t really give a shit whether or not any government other than that of the Jewish State and the Jewish nation recognize Jerusalem as the eternal capital of both these entities.

    That is truest independence in the spirit of the fighting Maccabees.

    It’s your capital so long as you can keep any other gang of people from taking it away from you. Don’t any of you understand that the only thing that counts, for individuals as well as nations and states is power?

    Nothing in this regard ever changes, or ever will change. As the great Stalin reportedly once told his GPU henchman “Iron Feliks” Edmundovich Dzerzhinsk, while sharing cans of sardines in Stalin’s Kremlin office:

    “There’s one thing about power that you have to admit, Feliks. It’s the one thing in the world you can’t fake. You either have power or you don’t”.

    I’m quite certain that Iron Feliks nodded his head in agreement. Maybe because he new better than to correct the Boss. But even more so because he knew that Stalin was absolutely right.

    Arnold Harris, Outspeaker

  12. @ Bear Klein:
    I hope they hired a different company from the one that built the 2nd Ave. Subway, renovated the NY Public Library system, or that my landlord sent to replace my toilet. It could take years.
    Oh, and thanks to the authors for laying it all out so nicely in print. Why don’t you just erect signs saying, “Protest Here,” while you’re at it.

  13. Trump has call Abbas and the King of Jordan and told them he is moving the embassy to Jerusalem. Next he is calling Bibi.

  16. According to Israel’s Channel 2, sources have revealed that a site for the embassy has been chosen and preliminary steps toward construction are already underway.

    The report cites anonymous sources saying the site chosen for the new embassy is the Diplomat Hotel in the neighborhood of Arnona. Furthermore, a well-known Israeli architect has been hired and is collaborating with Trump’s representatives as well as the municipal planning board.

    There is documented evidence that the preparations are being made, according to Channel 2. They apparently include major changes to the interior of the hotel in order to satisfy the needs of an embassy, such as providing new entrances and exits, security rooms, bomb shelters, and underground facilities. Security measures will also be introduced on the exterior of the building, such as fences, guardhouses, and electronic surveillance.

    Article conintues at https://www.algemeiner.com/2017/12/03/report-us-quietly-taking-major-steps-toward-moving-israeli-embassy/