Bill to Relocate United States Embassy from Tel Aviv to Jerusalem

Bill to Relocate United States Embassy from Tel Aviv to
Jerusalem

The provisions o f a bill that render the executive branch’s ability to obligate appropriated funds condi­
tional upon the construction and opening in Jerusalem of the United States Embassy to Israel
invade exclusive presidential authorities in the field o f foreign affairs and are unconstitutional.

May 16, 1995

M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t

This is to provide you with our views on S. 770, 104th Cong. (1995), a bill
introduced by Senator Dole and others, “ [t]o provide for the relocation of the
United States Embassy in Israel to Jerusalem, and for other purposes.” The provi­
sions of this bill that render the executive branch’s ability to obligate appropriated
funds conditional upon the construction and opening in Jerusalem of the United
States Embassy to Israel invade exclusive presidential authorities in the field of
foreign affairs and are unconstitutional.
The bill states that

[i]t is the policy of the United States that—

(1) Jerusalem should be recognized as the capital of the
State of Israel;
(2) groundbreaking for construction of the United States
Embassy in Jerusalem should begin no later than December
31, 1996; and
(3) the United States Embassy should be officially open in
Jerusalem no later than May 31, 1999.

S. 770, § 3(a).
The bill requires that not more than fifty percent of the funds appropriated to
the State Department for FY 1997 for ‘‘Acquisition and Maintenance of Buildings
Abroad” may be obligated until the Secretary of State determines and reports
to Congress that construction has begun on the site of the United States Embassy
in Jerusalem. Id. § 3(b). Further, not more than fifty percent of the funds appro­
priated to the State Department for FY 1999 for “ Acquisition and Maintenance
of Buildings Abroad” may be obligated until the Secretary determines and reports
to Congress that the United States Embassy in Jerusalem has officially opened.
Id. § 3(c).
Of the funds appropriated for FY 1995 for the State Department and related
agencies, not less than $5,000,000 “ shall be made available until expended” for
costs associated with relocating the United States Embassy in Israel to Jerusalem.

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Id. §4. Of the funds authorized to be appropriated in FY 1996 and FY 1997
for the State Department for “ Acquisition and Maintenance of Buildings Abroad,”
not less than $25,000,000 (in FY 1996) and $75,000,000 (in FY 1997) “ shall
be made available until expended” for costs associated with, respectively, the
relocation of the United States Embassy to Jerusalem, and the construction and
relocation of the Embassy. Id. §5(a), (b).
The Secretary is required to report to Congress not later than thirty days after
enactment “ detailing the Department of State’s plan to implement this Act.” Id.
§6. Beginning on January 1, 1996, and every six months thereafter, the Secretary
is to report to Congress “ on the progress made toward opening the United States
Embassy in Jerusalem.” Id. §7.
It is well settled that the Constitution vests the President with the exclusive
authority to conduct the Nation’s diplomatic relations with other States. This
authority flows, in large part, from the President’s position as Chief Executive,
U.S. Const, art. II, §1, cl. 1, and as Commander in Chief, id. art. II, §2, cl.
1. It also derives from the President’s more specific powers to “ make Treaties,”
id. art. II, §2, cl. 2; to “ appoint Ambassadors . . . and Consuls,” id.\ and to
“ receive Ambassadors and other public Ministers,” id. art. II, §3. The Supreme
Court has repeatedly recognized the President’s authority with respect to the con­
duct of diplomatic relations. See, e.g., Department o f Navy v. Egan, 484 U.S.
518, 529 (1988) (the Supreme Court has “ recognized ‘the generally accepted view
that foreign policy was the province and responsibility of the Executive’ ” )
(quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981)); Alfred Dunhill o f London,
Inc. v. Republic o f Cuba, 425 U.S. 682, 705-06 n.18 (1976) (“ [T]he conduct
of [foreign policy] is committed primarily to the Executive Branch.” ); United
States v. Louisiana, 363 U.S. 1, 35 (1960) (the President is “ the constitutional
representative of the United States in its dealings with foreign nations” ); see also
Ward v. Skinner, 943 F.2d 157, 160 (1st Cir. 1991) (Breyer, C.J.) (“ [T]he Con­
stitution makes the Executive Branch . . . primarily responsible” for the exercise
of “ the foreign affairs power.” ), cert, denied, 503 U.S. 959 (1992); Sanchez-
Espinoza v. Reagan, 770 F.2d 202, 210 (D.C. Cir. 1985) (Scalia, J.) (“ [BJroad
leeway” is “ traditionally accorded the Executive in matters of foreign affairs.” ).
Accordingly, we have affirmed that the Constitution “ authorize[s] the President
to determine the form and manner in which the United States will maintain rela­
tions with foreign nations.” Issues Raised by Provisions Directing Issuance o f
Official or Diplomatic Passports, 16 Op. O.L.C. 18, 21 (1992).
Furthermore, the President’s recognition power is exclusive. See Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964) (“ Political recognition
is exclusively a function of the Executive.” ); see also Restatement (Third) of
the Foreign Relations Law of the United States §204 (1987) (“ [T]he President
has exclusive authority to recognize or not to recognize a foreign state or govern­
ment, and to maintain or not to maintain diplomatic relations with a foreign

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government.” ). It is well established, furthermore, that this power is not limited
to the bare act of according diplomatic recognition to a particular government,
but encompasses as well the authority to take such actions as are necessary to
make the power of recognition an effective tool of United States foreign policy.
United States v. Pink, 315 U.S. 203, 229 (1942) (The authority to recognize
governments “ is not limited to a determination of the government to be recog­
nized. It includes the power to determine the policy which is to govern the ques­
tion of recognition.” ).
The proposed bill would severely impair the President’s constitutional authority
to determine the form and manner of the Nation’s diplomatic relations. The bill
seeks to effectuate the policy objectives that “ Jerusalem should be recognized
as the capital of the State of Israel” and that “ the United States Embassy should
be officially open in Jerusalem no later than May 31, 1999.” To those ends, it
would prohibit the executive branch from obligating more than a fixed percentage
of the funds appropriated to the State Department for “ Acquisition and Mainte­
nance of Buildings Abroad” in FY 1997 until the Secretary determines and reports
to Congress that construction has begun on the site of the United States Embassy
in Jerusalem. It would also prohibit the executive branch from obligating more
than a fixed percentage of the funds appropriated for the same purpose for FY
1999 until the Secretary determines and reports to Congress that the United States
Embassy in Jerusalem has “ officially opened.”
By thus conditioning the executive branch’s ability to obligate appropriated
funds, the bill seeks to compel the President to build and to open a United States
Embassy to Israel at a site of extraordinary international concern and sensitivity.
We believe that Congress cannot constitutionally constrain the President in such
a manner.
In general, because the venue at which diplomatic relations occur is itself often
diplomatically significant, Congress may not impose on the President its own for­
eign policy judgments as to the particular sites at which the United States’ diplo­
matic relations are to take place. More specifically, Congress cannot trammel the
President’s constitutional authority to conduct the Nation’s foreign affairs and to
recognize foreign governments by directing the relocation of an embassy. This
is particularly true where, as here, the location of the embassy is not only of
great significance in establishing the United States’ relationship with a single
country, but may well also determine our relations with an entire region of the
world. Finally, to the extent that S. 770 is intended to affect recognition policy
with respect to Jerusalem, it is inconsistent with the exclusivity of the President’s
recognition power.
Our conclusions are not novel. With respect to the Foreign Relations Authoriza­
tion Act, FY 1994 & 1995, Pub. L. No. 103-236, §221, 108 Stat. 382, 421 (1994),
which included provisions purporting to require the establishment of an office
in Lhasa, Tibet, the President stated that he would “ implement them to the extent

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consistent with [his] constitutional responsibilities.” 1 Pub. Papers o f William
J. Clinton 807, 808 (1994). The Reagan Administration objected in 1984 to a
bill to compel the relocation of the United States Embassy from Tel Aviv to Jeru­
salem, on the grounds that the decision was “ so closely connected with the Presi­
dent’s exclusive constitutional power and responsibility to recognize, and to con­
duct ongoing relations with, foreign governments as to, in our view, be beyond
the proper scope of legislative action.” Letter for Dante B. Fascell, Chairman,
Committee on Foreign Affairs, United States House of Representatives, from
George P. Shultz, Secretary of State at 2 (Feb. 13, 1984). Again, in 1987, President
Reagan stated that he would construe certain provisions of the Foreign Relations
Authorization Act, FY 1988 & 1989, including those that forbade “ the closing
of any consulates,” in a manner that would avoid unconstitutional interference
with the President’s authority with respect to diplomacy. 2 Pub. Papers o f Ronald
Reagan 1541, 1542 (1987). Indeed, as long ago as 1876, President Grant declared
in a signing statement that he would construe legislation in such a way as to
avoid “ implying a right in the legislative branch to direct the closing or dis­
continuing of any of the diplomatic or consular offices of the Government,”
because if Congress sought to do so, it would “ invade the constitutional rights
of the Executive.” 7 Messages and Papers o f the Presidents 377, 378 (James
D. Richardson ed., 1898).
Finally, it does not matter in this instance that Congress has sought to achieve
its objectives through the exercise of its spending power, because the condition
it would impose on obligating appropriations is unconstitutional. See United States
v. Butler, 297 U.S. 1, 74 (1936); 16 Op. O.L.C. at 28-29 (“ As we have said
on several prior occasions, Congress may not use its power over appropriation
of public funds ‘to attach conditions to Executive Branch appropriations requiring
the President to relinquish his constitutional discretion in foreign affairs.’ ” )
(quoting Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C.
37, 42 n.3 (1990)) (quoting Constitutionality o f Proposed Statutory Provision
Requiring Prior Congressional Notification fo r Certain CIA Covert Actions, 13
Op. O.L.C. 258, 261-62 (1989)).
For the above reasons, we believe that the bill’s provisions conditioning appro­
priated funds on the building and opening of a United States Embassy in Jerusalem
are unconstitutional.

WALTER DELLINGER
Assistant Attorney General
Office of Legal Counsel

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