On January 3, the first day of the 115th Congress, Republican Senators Ted Cruz, Marco Rubio and Dean Heller took quick action to try to chance U.S. policy on Israel by introducing a bill to recognize Jerusalem as the country’s capital city. It also calls for the U.S. to move its embassy from Tel Aviv to Jerusalem.
Although a similar bill was introduced in the House last year, this year’s attempt to move the embassy comes just a week after Secretary of State John Kerry’s lengthy speech on U.S.-Israel relations in the last days of the Obama Administration. It also comes during a tense moment between the two governments after the U.S. abstained in a UN Security Council vote on December 23 that condemned Israel’s settlements in East Jerusalem and the West Bank.
Israel had hoped that the U.S. would veto the resolution, as it has vetoed similar ones in the past. Donald Trump, who will be inaugurated as President on January 20, also wrote on Facebook that the resolution should have been vetoed.
Here’s a look at the new bill introduced by Cruz, Rubio and Heller.
1. The Bill Calls for the President to Finally Implement the 1995 Jerusalem Embassy Act
The new bill introduced by Heller, Cruz and Rubio calls for the President to finally implement the Jerusalem Embassy Act of 1995, which was passed during the 104th Congress. Although the bill was passed by both chambers of Congress, Presidents Bill Clinton, George W. Bush and Barack Obama have all refused to implement it because they saw it as Congress impeding on the executive branch’s authority to set foreign policy. The act states that State Department funds could be withheld if the embassy isn’t moved.
The law that was passed in 1995 set a timetable, insisting that the embassy be moved by May 31, 1999. However, the law also had a “presidential waiver” spelled out in section seven that allowed a president to seek full funds for the State Department. Presidents have determined that the move would be a bad idea for U.S. national security and a re-assessment has taken place every six months to back their stance.
“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,” the act reads.
2. The 2009 Attempt Tried to Remove the Presidential Waiver for Good
The relocation of the U.S. embassy in Israel has frequently come up in Congress since the passage of the 1995 act. During the 111th Congress in 2009, Kansas Governor Sam Brownback, who was then in the Senate, introduced the Jerusalem Embassy Relocation Act of 2009. This version tried to do away with the presidential waiver completely.
The act recognized Jerusalem as Israel’s capital, adding that the city “has never been the capital for any other state other than for the Jewish people.”
“Not more than 50 percent of the funds appropriated to the Department of State for fiscal year 2012 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,” the 2009 act reads.
The 2009 act never made it past introduction.
In 2015, during the 114th Congress, Rep. Scott Garrett of New Jersey introduced the Jerusalem Embassy and Recognition Act of 2015, but this also didn’t make it past introduction. Once again, Garrett tried to remove the presidential waiver and insisted that Jerusalem be recognized as Israel’s capital by the U.S.
3. Cruz Said Obama’s ‘Vendetta Against the Jewish State’ is ‘So Vicious’ That the Administration Won’t Recognize Jerusalem as the Capital
In his press release announcing the bill, Cruz said that the Obama Administration has a “vendetta against the Jewish state” that is “so vicious” that they refuse to speak the “simple truth” that Jerusalem is Israel’s capital. Cruz said:
“Jerusalem is the eternal and undivided capital of Israel. Unfortunately, the Obama administration’s vendetta against the Jewish state has been so vicious that to even utter this simple truth – let alone the reality that Jerusalem is the appropriate venue for the American embassy in Israel – is shocking in some circles. But it is finally time to cut through the double-speak and broken promises and do what Congress said we should do in 1995: formally move our embassy to the capital of our great ally Israel. I am pleased to co-sponsor this legislation with Senator Heller and Senator Rubio, and I look forward to working with the Trump administration to make this happen.”
Cruz stressed that Jerusalem should be undivided because the city was divided from 1948 to 1967 and reunited during the Six Day War between Israel, Egypt, Jordan and Syria. The UN Security Council resolution passed on December 23 refers to East Jerusalem as “occupied territory” by Israel.
In his speech on December 28, Kerry said that the Obama Administration agrees that Jerusalem shouldn’t be divided. He said that there were resolutions passed under the George H.W. Bush administration that also referred to East Jerusalem as a territory occupied by Israel.
“Now, I want to stress this point: We fully respect Israel’s profound historic and religious ties to the city and to its holy sites,” Kerry said in the speech. “We’ve never questioned that. This resolution in no manner prejudges the outcome of permanent status negotiations on East Jerusalem, which must, of course, reflect those historic ties and the realities on the ground. That’s our position. We still support it.”
4. The Democratic Party Platform Calls Jerusalem Israel’s Capital, but the White House Still Won’t Call it Part of Israel
The 2016 Democratic Party platform does consider Jerusalem to be Israel’s capital. The platform reads:
While Jerusalem is a matter for final status negotiations, it should remain the capital of Israel, an undivided city accessible to people of all faiths. Israelis deserve security, recognition, and a normal life free from terror and incitement. Palestinians should be free to govern themselves in their own viable state, in peace and dignity.
However, when Obama spoke at Shimon Peres‘ memorial in September, the White House dropped a reference to “Jerusalem, Israel” as the location of the ceremony. The memorial was held at Mount Herzl in Jerusalem.
“The administration’s policy toward Jerusalem follows that of previous US administrations – of both parties – since 1967,” an administration official told the Jerusalem Post. “The status of Jerusalem is an issue that should be resolved in final-status negotiations between Israelis and Palestinians. We continue to work with the parties to resolve this issue and others in a way this is just and fair, and respects the rights and aspirations of both Israelis and Palestinians.”
The Associated Press reported that it was a clerical issue.
The Republican Party platform also recognizes Jerusalem as Israel’s capital. It also calls for the American embassy to be moved there “in fulfillment of U.S. law.”
5. In 2015, the Supreme Court Ruled Against a Congressional Law That Americans Born in Jerusalem Must List Israel as Their Birthplace
Congress and the President, no matter who holds the Executive Office, have been clashing over the status of Jerusalem for decades. In addition to its efforts to move the embassy, in 2002, Congress passed the Foreign Relations Authorization Act, which insisted that an American citizen born in Jerusalem must list Israel as his or her place of birth. Although President George W. Bush signed the law, he objected to the entire section regarding Jerusalem, notes CNN.
The law was at the center of an ongoing Supreme Court case that lasted over a decade. After the law was passed, Menachem Binyamin Zivotofsky’s parents sued the State Department when they wanted his passport to read “Jerusalem, Israel.” The State Department had refused to follow through with the law. The Supreme Court ruled in Zivofotsky v. Clinton that his parents could test the constitutionality of the law. However, in Zivotofsky v. Kerry, the Court struck down the law.
In Zivotofsky v. Kerry, which was finally decided in 2015, the Court ruled 6-3 that the President has the power to recognize foreign states. Therefore, Congress can’t force the State Department to have passports call Jerusalem part of Israel. Chief Justice John Roberts, Justice Antonin Scalia and Justice Samuel Alito were in dissent.
“Recognition is an act with immediate and powerful significance for international relations, so the President’s position must be clear. Congress cannot require him to contradict his own statement regarding a determination of formal recognition,” Justice Anthony Kennedy wrote in the opinion.
“Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs,” Roberts wrote in the dissent.