The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Thursday, President Barack Obama's last waiver pursuant to the Jerusalem Embassy Act will expire. Absent a new waiver by President Trump, the provisions of the law will go into full effect. Trump promised during his campaign to move the embassy, a policy embodied both in federal law and the Republican Party platform. But since he came into office, Trump's promise seems to have lost some momentum.
This piece will examine the mechanics of the Embassy Act waiver—it is not actually a waiver on moving the embassy. The details of the law make it a particularly convenient way for Trump to defy now-lowered expectations and not issue a waiver on June 1.
First, some context. Many commentators have sought to cast a possible Trump waiver as proof that Obama's Israeli policy is really the only possible game in town. But whether or not a waiver is issued, Trump has succeeded in fundamentally changing the discussion about the U.S.-Israel relationship. Waivers under the 1995 act come twice a year, and for the past two decades, they have hardly warranted a news item. Under the Bush and Obama administrations, they were entirely taken for granted.
Now everyone is holding his or her breath to see whether Trump will sign the waiver. If he does, it will certainly be a disappointment to his supporters. But it will not be the end of the show—he will have seven more waivers ahead, with mounting pressure as his term progresses. Under Obama, speculation focused on what actions he would take or allow against Israel (and even these waited until very late in his second term).
The waiver available to the president under the Jerusalem Embassy Act of 1995 does not waive the obligation to move the embassy. That policy has been fully adopted by Congress in the Act (sec. 3(a)(3)) and is not waivable. Of course, Congress cannot simply order the president to implement such a move, especially given his core constitutional power over diplomatic relations.
But Congress, having total power over the spending of taxpayer dollars, does not have to pay for an embassy in Tel Aviv. The Act's enforcement mechanism is to suspend half of the appropriated funds for the State Department's "Acquisition and Maintenance of Buildings Abroad" until the law's terms are complied with. The waiver provision simply allows the president to waive the financial penalty.
What this means is that by not signing a waiver, Trump would not actually be requiring the embassy to move to Jerusalem, moving the embassy or recognizing Jerusalem. That could give him significant diplomatic flexibility or deniability if June 1 goes by with mere silence from the White House.
Moreover, the law says nothing about "moving" the embassy. Rather, the requirement is to "officially open" an embassy, which can be done with a mere declaration upgrading the status of one of the existing consular facilities in the city. It does not require the physical relocation of the facility in Tel Aviv.
Non-waiver would be a wise tactical move for Trump. If he signs a waiver, he is certain to face deep pushback from his base at a time he needs its support the most. The only grounds that the statute allows for waiver are "national security interests." Trump can expect congressional hearings seeking to determine whether the waiver was in fact motivated by national security or, as many reports suggest, by the diplomatic pleas of King Abdullah of Jordan.
But if Trump simply does nothing, he gets a clear and easy win on a campaign plank at a time when his agenda seems to have gotten bogged down. Unlike ending Obamacare or restricting immigration, for example, non-waiver does not require (additional) congressional buy-in, staff work, judicial assent or anything.
On the other hand, Trump has faced deep opposition to many of his policies from State Department staffers. (They are particularly unhappy about planned budget cuts.) Foggy Bottom has apparently been pushing against Trump carrying out his campaign promise regarding the embassy.
But the moment June 2 comes without a waiver, the State Department will become Trump's biggest ally in finding a way to "establish" an embassy as fast as possible, to avoid the severe cuts to its budget. At the same time, Trump can insist to the world that his non-waiver does not signify any kind of diplomatic policy, but merely a determination that the waiver is no longer "necessary" to protect national security.
In short, Trump can use the mechanics of the law to tie the hands of a recalcitrant bureaucracy while claiming deniability on diplomatic matters (just as the Obama administration said its non-veto of Security Council Resolution 2334 against Israel does not mean it supports the resolution).
As I explained in the Wall Street Journal op-ed pages last week, the national security argument for the waiver "has been undermined by the massive changes in the region since 1995."
I wrote there:
While the Palestinian issue was once at the forefront of Arab politics, today Israel's neighbors are preoccupied with a nuclear Iran and radical Islamic groups. For the Sunni Arab states, the Trump administration's harder line against Iran is far more important than Jerusalem. To be sure, a decision to move the embassy could serve as a pretext for attacks by groups like al Qaeda. But they are already fully motivated against the U.S.
Indeed, in a move largely ignored by the media, Russia recognized Jerusalem as Israel's capital a few months ago. This is the first international recognition of Jerusalem as Israel's capital, and no one saw it coming. And none of the dire consequences that such a recognition was supposed to bring have materialized. This despite the fact that it constitutes a drastic reversal of the Kremlin's traditionally totally pro-Palestinian policy. Recall Mahmoud Abbas wrote his Holocaust-denying dissertation at Moscow's Patrice Lumumba University, a higher educational institution for Third World revolutionaries and terrorists.
Whatever Trump decides to do—or not do—on Thursday, one thing is certain: The waiver debate is not going away.