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 if he does not, it is not 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).
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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.