[Congressional Record Volume 141, Number 159 (Friday, October 13, 1995)]
[Senate]
[Pages S15176-S15179]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JERUSALEM EMBASSY RELOCATION IMPLEMENTATION ACT
Mr. DOLE. Mr. President, I understand that S. 1322, introduced
earlier by myself is at the desk.
The PRESIDING OFFICER. The Senator is correct.
The clerk will read the bill for the first time.
The bill (S. 1322) was read the first time.
Mr. DOLE. Mr. President, I ask for its second reading.
Mr. BYRD. Mr. President, I have been asked to object and do object.
The PRESIDING OFFICER. Objection is heard.
Mr. DOLE. Mr. President, as indicated, I have introduced S. 1322, the
Jerusalem Embassy Relocation Act of 1995. I am pleased to do so with
the distinguished senior Senator from New York, Senator Moynihan, as
the lead cosponsor. As the Senate knows, Senator Moynihan has been the
expert and the leader on Jerusalem for his entire career. I am pleased
that he has joined with Senator Kyl, Senator Inouye and other
cosponsors in this important legislation. I would like to take special
note of the roles of Senator Kyl and Senator Inouye in developing this
legislation, and in agreeing to the changes included today.
This legislation is very similar to S. 770, introduced on May 9,
1995. S. 770
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currently has 62 cosponsors--and 61 of them are included on the
legislation I am introducing today. There is one major change between
S. 770 and S. 1322--the provision requiring groundbreaking in 1996 for
construction of a new Embassy has been deleted, and minor or conforming
changes have been made. All major provisions are identical: Findings on
the importance of Jerusalem, statement of policy on recognizing
Jerusalem as the capital of Israel, semiannual reporting requirements,
and, most important, the requirement that the American Embassy be open
in Jerusalem no later than May 31, 1999.
A number of Members expressed concern about the potential impact of
the requirement for breaking ground on construction next year. Clearly
62 percent of the Senate was comfortable with the provision. The lead
cosponsor, Senator Kyl, felt particularly strongly about some action
occurring next year--the 3000th anniversary of Jerusalem. But Senator
Kyl and the other cosponsors have agreed to remove the requirement in
the interests of gaining even broader support.
All of us in the Senate are aware of the possible impact our actions
could have on the peace process in the Middle East. We want the peace
process to succeed. As I said upon introducing S. 770, ``the peace
process has made great strides and our commitment to that process in
unchallengeable.'' Last spring, the fate of the declaration of
principles ``Phase II'' agreement was very much up in the air. The July
deadline was missed. The August deadline was missed. Fortunately, the
Oslo II accord was signed last month. Implementation is underway. While
always subject to disruption and always under attack from extremists,
the pace process is working. The toughest issues are yet to be resolved
in final status talks, including Jerusalem.
In my view, the United States does not have to wait for the end of
final status talks to begin the process of moving the United States
Embassy to Jerusalem. As both S. 770 and today's legislation state:
``Jerusalem should be recognized as the capital of Israel and the
United States Embassy should be officially open in Jerusalem no later
than May 31, 1999.'' In my view, we should begin the process of moving
now and we should conclude it by May 31, 1999. That is the bottom line,
and that is what S. 1322 does.
In the 5 months since the introduction of S. 770, the Clinton
administration has done nothing to bridge our differences. A
questionable legal opinion was offered and a veto threat was made, but
no substantive contacts have occurred. Not one. I am disappointed the
administration has ignored what is obviously a strong bipartisan
majority in the Senate. I am disappointed the administration has made
no effort at all to communicate with the lead sponsors of this
legislation. Our hope is to unify, not to divide, on the sensitive
issue of Jerusalem. Our hope is to move ahead on this issue. Our hope
is the administration will support the legislation to move the Embassy.
In 2 weeks, Prime Minister Rabin, mayor of Jerusalem Olmert and
hundreds of others will assemble in the rotunda of the U.S. Capitol to
commemorate the 3000th anniversary of Jerusalem. Many of us noted that
the American Ambassador to Israel could not find the time to attend
opening ceremonies for the 3000th anniversary of Jerusalem in Israel. I
am confident that the Congress will celebrate this historic event in a
much more appropriate manner.
In the coming days I expect additional cosponsors will be added to
the Jerusalem embassy legislation. I also expect decisions to be made
in the administration and in the Congress about how and when to proceed
with this legislation.
I ask unanimous consent that a legal analysis supporting the
constitutionality of this legislation along with a comparison of S. 770
and S. 1322, be printed in the Record following my remarks.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Legal Time, Oct. 9, 1995]
Can Congress Move an Embassy?
(By Malvina Halberstam)
This year marks 3,000 years since Jerusalem was first
established as the capital of a Jewish state, by King David.
Although the city has been ruled by many empires and states
since then, it has never been the capital of any other
country. It was formally re-established as the capital of
Israel in 1950. In a fitting tribute to the 3,000th
anniversary, Sens. Robert Dole (R-Kan.) and Jon Kyl (R-Ariz.)
introduced a bill on May 9 of this year to move the U.S.
embassy from Tel Aviv to Jerusalem.
Besides the policy issue, which have been the subject of
considerable debate, the Dole-Kyl bill raises interesting
questions concerning the scope of congressional and executive
authority in the conduct of foreign affairs, and the extent
to which Congress can use its appropriations power to
influence executive action in this area.
The proposed Jerusalem Embassy Relocation Implementation
Act, which has 60 cosponsors, makes a number of findings,
including that Jerusalem has been the Israeli capital since
1950 and that the United States maintains its embassy in the
functioning capital of every country except Israel. The bill
declares it to be U.S. policy to recognize Jerusalem as the
capital of Israel, to begin breaking ground for construction
of the embassy in Jerusalem no later than Dec. 31, 1996, and
officially to open the embassy no later than May 31, 1999.
The provides that at least $5 million in 1995, $25 million
in 1996, and $75 million in 1997 of the funds authorized to
be appropriated for the State Department's acquisition and
maintenance of buildings abroad shall be made available for
the construction and other costs associated with the
relocation. It further provides that not more than 50 percent
of those funds appropriated in 1997 may be obligated until
the secretary of state reports to Congress that construction
has begun and that not more than 50 percent of the funds
appropriated in 1999 may be obligated until the secretary
reports to Congress that the Jerusalem embassy has officially
opened.
President Bill Clinton has opposed the legislation on
policy grounds, and the Justice Department has prepared a
memorandum arguing that the bill is unconstitutional.
Essentially, the department argues (1) that the bill
interferes with the president's power to conduct foreign
affairs and make decisions pertaining to recognition, and (2)
that the bill is an inappropriate exercise of Congress'
appropriations power because it includes an unconstitutional
condition.
the ``foreign affairs'' power
Contrary to popular impression, the Constitution does not
vest the foreign affairs power in the president. It does not
vest the foreign affairs power in any branch. Indeed, it
makes no reference to ``foreign affairs.''
The Constitution vests some powers that impact on foreign
affairs in the president, others in the president and the
Senate jointly, and still others in Congress. It provides
that the president ``shall receive ambassadors.'' It gives
him the power to appoint ambassadors, but only with the
advice and consent of the Senate, and to make treaties,
provided two-thirds of the senators concur.
The Constitution also gives Congress a number of powers
affecting foreign affairs, including the power to ``regulate
commerce with foreign nations''; to ``establish uniform rules
of naturalization''; to ``coin money and regulate the value
thereof, and of foreign coin''; to ``define and punish
piracies and felonies committed on the high seas, and
offenses against the law of nations''; to ``declare war,
grant letters of marque and reprisal, and make rules
concerning capture on land and water''; and to ``raise and
support armies,'' and ``provide and maintain a navy.'' As
Edward Corwin put it in The President: Office and Powers,
1787-1984, ``the Constitution . . . is an invitation to
struggle for the privilege of directing American foreign
policy.''
Probably the most comprehensive Supreme Court discussion of
the foreign affairs power is Justice George Sutherland's
opinion in United States v. Curtiss-Wright Export Corp.
(1936). In that case, the Court sustained a statute
authorizing the executive to order an embargo on arms to
Brazil--a delegation of congressional authority unacceptable
at that time with respect to domestic regulation. Sutherland
argued that in foreign affairs, as distinct from domestic
affairs, the authority of the federal government does not
depend on a grant of power from the states. Turning to the
specific issue before the Court, the president's authority to
declare an embargo, Sutherland stated, ``We are dealing here
not alone with an authority vested in the President by
exercise of legislative power, but with such an authority
plus the very delicate plenary and exclusive power of the
President as the sole organ of the federal government in the
field of international relations.''
In addition to making no reference to ``foreign affairs,''
the Constitution also makes no reference to ``recognition''
of foreign states. The provision that the president ``shall
receive ambassadors,'' now considered the basis of the
president's power over recognition, was described by
Alexander Hamilton in Federalist No. 69 as ``more a matter of
dignity than of authority'' and ``a circumstance which will
be without consequence.''
Historically, however, presidents have made decisions on
recognition, starting with George Washington's recognition of
the French Republic. In United States v. Belmont (1937) and
United States v. Pink (1942), the Supreme Court implicitly
accepted the executive's authority over recognition when it
held that an executive agreement recognizing the Soviet
government and providing for settlement of claims between the
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United States and the Soviet Union superseded inconsistent state law.
Both the Court's reference to the president's broad foreign
affairs powers in Curtiss-Wright (and other cases cited in
the Justice Department memo), and the Court's implied
acceptance of the executive's authority to recognize foreign
governments to Belmont and Pink were made in situations in
which Congress either delegated authority to the executive or
was silent. None involved a conflict between Congress and the
president.
fluctuating authority
Indeed, the Supreme Court has never held that Congress
could not exercise one of its constitutional powers because
doing so would interfere with the president's conduct of
foreign affairs. The Court has held the converse: that
presidential action, which might have been constitutional if
Congress had not acted, was unconstitutional because it was
inconsistent with legislation enacted by Congress. In
Youngstown Sheet and Tube Co. v. Sawyer (1952), the Court
held that, notwithstanding his constitutional power as
commander in chief, President Harry Truman's seizure of the
steel mills to ensure that a threatened strike did not stop
the production of steel needed for the Korean War, was
illegal because it was inconsistent with the Taft-Hartley Act
for resolving labor disputes. Justice Robert Jackson, who had
been President Franklin Roosevelt's attorney general and was
a strong proponent of broad executive authority, concurred in
what has become the classic statement on the relationship
between executive and legislative power. Jackson wrote:
Presidential powers are not fixed but fluctuate, depending
upon their disjunction or conjunction with those of Congress.
. . .
1. When the President acts pursuant to an express or
implied authorization of Congress, his authority is at its
maximum, for it includes all that he possesses in his own
right plus all the Congress can delegate. In these
circumstances, and in these only, may he be said (for what it
may be worth) to personify the federal sovereignty. If his
act is held unconstitutional under these circumstances, it
usually means that the Federal Government as an undivided
whole lacks power. . . .
2. When the President acts in absence of either a
congressional grant or denial of authority, he can only rely
upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent
authority, or in which its distribution in uncertain.
Therefore, congressional inertia, indifference or quiescence
may sometimes, at least as a practical matter, enable, if not
invite, measures on independent presidential responsibility.
In this area, any actual test of power is likely to depend on
the imperatives of events and contemporary imponderables
rather than on abstract theories of law.
3. When the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its
lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of
Congress over the matter. Courts can sustain exclusive
presidential control in such a case only by disabling the
Congress from acting upon the subject. Presidential claim to
a power at once so conclusive and preclusive must be
scrutinized with caution, for what is at stake is the
equilibrium established by our constitutional system.
Justice Jackson cited Curtiss-Wright as an example of the
first class of cases and noted that ``that case involved not
the President's power to act without Congressional authority,
but the question of his authority to act under and in accord
with an Act of Congress.'' Jackson concluded, ``It was
intimated that the President might act in external affairs
without congressional authority, but not that he might act
contrary to an Act of Congress.''
Admittedly, the Dole-Kyl bill does not explicitly require
the president to relocate the embassy to Jerusalem. However,
the findings that Jerusalem is the Israeli capital and that
Israel is the only state in which the U.S. embassy is not in
the capital, the assertion that it is U.S. policy that the
embassy be in Jerusalem, the allocation of funds for
relocation and construction of an embassy there, and the
prohibition on the use of some funds appropriated to the
State Department if construction is not started by December
1996 and completed by May 1999, all clearly indicate the
purpose of Congress to commence construction of a U.S.
embassy in Jerusalem no later than December 1996 and to open
that embassy no later than May 1999.
the jackson analysis
Under the Jackson analysis, were the president to take
``measures incompatible with the expressed or implied will of
Congress,'' his power would be ``at its lowest ebb.'' He
could ``rely only upon his own constitutional powers minus
any constitutional powers of Congress over the matter.'' Such
exclusive presidential control could be sustained ``only by
disabling the Congress from acting upon the subject.'' While
the question has never been decided, it is unlikely that a
court would hold that the president's authority to receive
ambassadors (his power to appoint ambassadors requires the
advice and consent of the Senate), minus the power of
Congress under the necessary and proper clause and the
spending clause of Article I, is sufficient to disable
Congress from acting upon the subject.
Both the necessary and proper clause and the spending
clause have been broadly interpreted to permit Congress to
legislate on a wide range of matters. Neither limits
congressional action to the matters enumerated in Article 1,
Sec. 8.
The necessary and proper clause authorizes Congress to make
not only all laws necessary and proper to implement the
enumerated powers of Congress, but all laws necessary and
proper to execute all powers vested in the government of the
United States or in any department or office thereof. Thus,
even if recognition were deemed an executive power--on the
basis of historical precedent, if not constitutional
provision--Congress has the power under this clause to enact
legislation concerning the location of U.S. embassies.
The Dole-Kyl bill is also clearly a proper exercise of
Congress' spending power. That the use of the spending power
is not limited to those areas that Congress can otherwise
regulate was made clear in United States v. Butler (1936).
Justice Owen Roberts, writing for the majority, stated, [The
first clause of Article I, Sec. 8] confers a power separate
and distinct from these later enumerated, is not restricted
in meaning by the grant of them, and Congress consequently
has a substantive power to tax and to appropriate, limited
only by the requirement that it shall be exercised to provide
for the general welfare of the United States [emphasis
added].
The Justice Department memo argues, correctly, that
Congress cannot use the spending power to impose
unconstitutional conditions. Thus, the Supreme Court has
held that Congress cannot use the appropriations power to
violate the establishment clause of the First Amendment,
Flast v. Cohen (1968); the compensation clause in Article
III, United States v. Will (1980); or the prohibition on
bills of attainder in Article I, Sec. 9, United States v.
Lovett (1946). The principle that has emerged is that
Congress cannot use the spending power to achieve that
which the Constitution prohibits. But neither
appropriating funds for relocation and construction of an
embassy nor limiting expenditure of funds appropriated for
the acquisition and maintenance of buildings abroad if
construction is not started and completed on specified
dates violates any prohibition of the Constitution.
The Justice memo relies on Butler, the only case in which
the Court has held a federal appropriation invalid because of
the unconstitutionality of a condition that did not involve
infringement of individual rights. In that case, decided more
than half a century ago, the majority took the position that
Congress could not use federal funds to induce states to
enact regulations that Congress could not enact under its
enumerated powers. Within a year of that decision, however,
the Court (in Steward Machine Co. v. Davis and Helvering v.
Davis (1937) sustained conditional appropriations in areas
outside the scope of Congress' enumerated powers. Since then,
Congress has enacted numerous statutes in which it used the
spending power to achieve results that it could not have
achieved by regulating directly.
Most recently, in South Dakota v. Dole (1987), the Supreme
Court rejected a state argument that Congress could not use
federal highway funding to achieve a national minimum
drinking age because the 21st Amendment gave the states the
power to make that decision. After reviewing its earlier
decisions, the Court stated, These cases establish that the
``independent constitutional bar'' limitation on the spending
power is not, as petitioner suggests, a prohibition on the
indirect achievement of objectives which Congress is not
empowered to achieve directly. Instead, we think that the
language in our earlier opinions stands for the
unexceptionable proposition that the power may not be used to
induce the States to engage in activities that would
themselves be unconstitutional.
congress' power of the purse
Moreover, in Butler the Court held that Congress could not
use the spending power to limit states' rights. The Court has
never held that Congress cannot limit the proper exercise of
power by another branch of the federal government through the
use of its appropriations authority unless the matter falls
within Congress' enumerated powers. Such a holding would
vitiate one of the most important--if not the most
important--of the checks and balances: Congress' power of the
purse. As the U.S. District Court for the District of
Columbia stated in United States v. Oliver North (1988),
[t]hough the parameters of Congress' powers may be contested,
Congress surely has a role to play in aspects of foreign
affairs, as the Constitution expressly recognizes and the
Supreme Court of the United States has affirmed. The most
prominent among those Congressional powers is of course
the general appropriations power.
That Congress can use the spending power to limit the
executive's constitutional powers is well established.
Consider, for example, the president's power as commander in
chief. Although the Constitution provides that the president
shall be commander in chief, and the Supreme Court stated
almost 150 years ago that this encompasses the power ``to
direct the movements of the naval and military forces at his
command and to employ them in the manner he may deem most
effectual to harass and conquer and subdue the enemy''
(Fleming v. Page (1850)), Congress has repeatedly used its
funding power to limit military action by the president.
Indeed, in some of the challenges to the
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Vietnam War, courts have stated that Congress' failure to prohibit the
president from using funds for the war (or for certain
aspects of it) constituted authorization. If Congress can
exercise its appropriations power to limit the president's
power as commander in chief--a power specifically provided
for in the Constitution--a fortiori it can exercise the
appropriations power to limit the president's foreign affairs
power--a power not expressly vested in the president, but
implied from other powers and shared with Congress.
Since World War II, Congress has consistently used
appropriations as a means of controlling some aspects of
foreign policy. In 1989, commentator Louis Fisher
characterized the assertion that Congress cannot control
foreign affairs by withholding appropriations as ``the most
startling constitutional claim emanating from the Iran contra
hearings'' (``How Tightly Can Congress Draw the Purse
Strings?'' American Journal of International Law). Or, as
Professor John Hart Ely put it in his 1993 book, War and
Responsibility: Constitutional Lessons of Vietnam and Its
Aftermath, assertions ``that foreign affairs just aren't any
of Congress's business . . . bear no relation to the language
or purposes of the founding document, or the first century
and a half of our history.''
even kissinger conceded
Even strong proponents of broad executive power in foreign
affairs agree that Congress can use the appropriations power
to affect the conduct of foreign affairs. Professor Louis
Henkin, chief reporter for the latest Restatement of U.S.
Foreign Relations Law, has written, ``Congress has insisted
and presidents have reluctantly accepted that in foreign
affairs as in domestic affairs, spending is expressly
entrusted to Congress. . . .'' And then Secretary of State
Henry Kissinger conceded, following the executive
confrontations with Congress during the Vietnam War: The
decade long struggle in this country over executive dominance
in foreign affairs is over. The recognition that Congress is
a coequal branch of government is the dominant fact of
national politics today. The executive accepts that Congress
must have both the sense and the reality of participation
foreign policy must be a shared enterprise.
Whatever the respective powers of Congress and the
president to decide whether to recognize a foreign state--a
question on which the Constitution is silent and the Supreme
Court has never ruled--that issue is not raised by the Dole-
Kyl bill. Rather, the issues are whether Congress can enact
legislation that may affect U.S. foreign policy interests,
and whether it can achieve its ends through use of the
appropriations power. Long-established practice, the writings
of scholars and statesmen, and judicial decisions all
indicate that the answer to both is clearly yes.
____
Comparison of S. 770 and S. 1322
The withholding of funds pending groundbreaking for a new
embassy in Jerusalem in 1996 has been deleted (Section
3(a)(2) and section 3(b) of S. 770).
A new finding concerning a 1990 resolution on Jerusalem
passed by Congress has been added (finding 9 of S. 1322).
The statement of policy has been amended to include
reference to Jerusalem being undivided and open to all ethnic
and religious groups.
The statement of policy has been re-worded to use
``relocated'' rather than ``officially open'' in reference to
the Embassy (section 3).
Fiscal Year 1995 funding (section 4 of S. 770) has been
deleted.
Funding for relocation costs in fiscal year 1996 and fiscal
year 1997 has been modified to be discretionary rather than
mandatory (section 4 of S. 1322).
Mr. LIEBERMAN. Mr. President, I rise today to join with Senators
Dole, Moynihan, Kyl and Inouye and most of my other colleagues in
introducing the Jerusalem Embassy Relocation Implementation Act, S.
1322. I hope that this bill will gain the support of all of my
colleagues in the Senate.
Mr. President, Jerusalem is and always shall be the capital of
Israel. Jerusalem is a unified city in which the rights of all faiths
have been respected. The Embassy of the United States of America to
Israel should be in that country's capital, the city of Jerusalem.
Earlier this year, I joined with many of my colleagues in sending a
letter to the Secretary of State encouraging the administration to
begin planning for relocation of the U.S. Embassy to the city of
Jerusalem. This process must move forward.
The bill we are introducing today establishes U.S. policy that
Jerusalem should be recognized as the capital of the state of Israel.
The bill also establishes a timetable for construction and relocation
of the U.S. Embassy to Israel in Jerusalem by May 31, 1995. The
Secretary of State is required to present an implementation plan to the
Senate within 30 days of enactment and provide a progress report every
6 months. The bill allocates substantial initial funding for the
project--$25 million in fiscal 1996 and $75 million in fiscal 1997.
Like the President and many of my colleagues, I believe we can and
should move forward to establish the U.S. Embassy in Jerusalem in a
manner consistent with the continued negotiation and implementation of
the peace process which achieved another significant step last month.
The modification to this legislation from the version earlier
introduced, S. 770, will ensure that this can be accomplished. There is
no change in the real result of the bill: The opening of the U.S.
Embassy in Jerusalem by May 31, 1999.
Mr. President, the Jerusalem 3,000 celebration underway in Israel and
throughout the world commemorates the 3,000th anniversary of King
David's entry into Jerusalem. There could be no more fitting occasion
than this celebration to commit America to finally establish our
Embassy in Jerusalem by the end of the decade.
With the adoption of the Jerusalem Embassy Relocation Implementation
Act and continued progress in the peace process, we can enter the 21st
century with the U.S. Embassy in Jerusalem, the capital of a safe and
secure Israel, at peace with her Arab neighbors, in an economically
prosperous Middle East.
____________________