[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 

[[Page S 15177]]
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 


[[Page S 15178]]
     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 

[[Page S 15179]]
     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.

                          ____________________