Moving the US Embassy back to Tel Aviv? Technically possible, but very unlikely

Democratic front-runner Bernie Sanders would consider shutting the Jerusalem mission, but experts say there are many political — and legal — obstacles he’d have to clear first

Raphael Ahren

Raphael Ahren is a former diplomatic correspondent at The Times of Israel.

US Secretary of the Treasury Steven Munchin, left, and daughter of US President Donald Trump, Senior Adviser Ivanka Trump, unveil a dedication plaque during the official opening ceremony of the US embassy in Jerusalem on May 14, 2018. (Yonatan Sindel/Flash90)
US Secretary of the Treasury Steven Munchin, left, and daughter of US President Donald Trump, Senior Adviser Ivanka Trump, unveil a dedication plaque during the official opening ceremony of the US embassy in Jerusalem on May 14, 2018. (Yonatan Sindel/Flash90)

For more than 20 years, American presidential candidates from both sides of the aisles vowed to move the US Embassy from Tel Aviv to Jerusalem but, once elected, broke their promise — until May 2018, when, under President Donald Trump, the US officially opened its embassy in the city’s Arnona neighborhood.

Now, a little over two years later, a leading contender for the White House is  contemplating the exact opposite move, saying he may reverse Trump’s decision and relocate the mission to Tel Aviv.

“The answer is it’s something we would take into consideration,” Bernie Sanders, the leading Democratic presidential hopeful, said Tuesday in response to a question about the issue during a debate in South Carolina.

“That remark is shocking,” Foreign Minister Israel Katz said the next day. “There is no Jew who hasn’t dreamed of Jerusalem for thousands of years, to return, and we returned, and I think President Trump did an important thing, without connection to internal disagreements within the United States.”

Tuesday’s comment wasn’t the first time Sanders, who is Jewish, was asked about possibly moving the embassy out of Jerusalem. Earlier this month, the 78-year-old senator from Vermont said he wouldn’t do it as a “first step.” But, he told The New York Times, “it would be on the table if Israel continues to take steps, such as settlement expansion, expulsions and home demolitions, that undermine the chances for a peace agreement.”

Democratic presidential candidate Sen. Bernie Sanders (Independent-Vermont) on stage for the Democratic presidential primary debate at the Charleston Gaillard Center in Charleston, South Carolina, February 25, 2020. (Scott Olson/Getty Images/AFP)

Sanders’ threat may sound alarming to some Israelis, but for various reasons he is very unlikely to act on it, several experts agreed this week.

For one, there is broad American support for Jerusalem as the proper seat of the  embassy.

The Jerusalem Embassy Act of 1995 was adopted with huge majorities in the Senate (93 yeas to five nos) and the House (374 to 37) and has since been reaffirmed several times with even larger majorities.

Asked about the issue by The New York Times, seven out of 10 Democratic would-be presidents said they oppose moving the embassy to Tel Aviv. Only one — Tom Steyer — is unequivocally in favor; Elizabeth Warren said that she would be willing to “freeze or reverse the limited embassy functions that have moved to Jerusalem” if the Israeli governments took steps “counter to peace.”

The US embassy in Tel Aviv on December 6, 2017. It was later renamed into the ‘Tel Aviv Branch Office’ of the Jerusalem Embassy (AFP Photo/Jack Guez)

“I think it’s going to be extremely difficult” for a future president to move the embassy back out of Jerusalem, said Eytan Gilboa, an expert on US-Israel relations from Bar-Ilan University. “But I am not going to say that it’s impossible. Because with the US political system right now, everything is possible.”

Gilboa noted the stark difference between what candidates promise during the campaign and what they actually do once they reach the Oval Office. “Since the Jerusalem law was passed, all presidential candidates said they would move the embassy, even Barack Obama, but no one did it [before Trump],” he said.

In 1972, then-congressman Gerald Ford famously called for transferring the American embassy  to Jerusalem. Two years later, Ford — now president — was asked by Israel’s ambassador in Washington at the time, Yitzhak Rabin, about the embassy’s relocation.

“In the Oval Office you view things differently than from the House of Representatives,” Rabin quoted Ford as replying.

Presidents make foreign policy, but ultimately it depends on Congress

But besides the political hurdles, a president Bernie Sanders would also face major legal obstacles if he wanted to attempt moving the embassy back to Tel Aviv, due to the Jerusalem Embassy Act, which became US law on November 8, 1995.

The legislation states that the city “should be recognized as the capital of the State of Israel” and stipulates that the US embassy in Israel “should be established in Jerusalem no later than May 31, 1999.”

View of the new site of the US Embassy in Jerusalem ahead of its inauguration, May 13, 2018. (Yonatan Sindel/Flash90)

The law also included a paragraph allowing the president to suspend its implementation by six months if he deemed it necessary to “protect the national security interests of the United States.” All presidents issued these waivers twice a year until the law was fully implemented during the Trump administration.

Would a future president Sanders violate this law by moving the embassy back to Tel Aviv?

“It would not be easy for him given the legislation,” said Dennis Ross, a former US diplomat who has worked on the Israeli-Palestinian file for decades.

“The waiver was provided to justify why the embassy had not been moved given the requirement to do so. In theory, he might try to say for national security reasons we needed to do so. But what would those reasons be? For peace? What would be the signs this would make a difference?”

On the other hand, lawyers for the executive branch lawyers could argue that foreign policy is the president’s prerogative, and that the 1995 law cannot prevent the White House from moving embassies around.

Deputy Minister Michael Oren at the Knesset, June 27, 2017. (Yonatan Sindel)

In this respect, Michael Oren, a historian researching US-Israel relations and former Israeli ambassador to Washington, stressed that the law’s waiver option allows presidents to put security considerations ahead of the need to have the embassy in Jerusalem.

“A Sanders administration could again claim national security concerns and move the embassy back to Tel Aviv. The president has far-reaching powers in determining foreign policy, especially if his or her party controls Congress.”

Shlomo Slonim, the former chairman of Hebrew University’s American Studies department, said that, “in principle,” the president has the competence to recognize and un-recognize foreign capitals and to relocate embassies. Israel could protest shutting the Jerusalem embassy as an “unfriendly act” but would ultimately be unable to prevent it, he posited.

US Vice President Mike Pence, left, hosts PM Netanyahu at the US Embassy in Jerusalem, January 23, 2020 (Kobi Gideon/GPO)

“Then it would depend on Congress,” Slonim went on. While the executive branch has the exclusive authority to shape foreign policy, the lawmakers could pass legislation stipulating that no funds be allocated to pay for an embassy move, he said.

A president Sanders could veto such a law, and the Republicans would need a two-thirds majority to override the veto — which appears highly unlikely, he explained.

“I don’t think any new president is going to be as stupid as that to make this into an issue,” he concluded.

Dan Shapiro, a former US ambassador to Israel, agreed that it was “very unlikely” for any administration to move the embassy back to Tel Aviv.

Former US Ambassador to Israel, Dan Shapiro, participates in the Meir Dagan Conference for Strategy and Defense, at the Netanya College, on March 21, 2018. (Meir Vaaknin/Flash90)

“It’s far more likely that a Democratic administration would complement the move of the US embassy to West Jerusalem with much more vocal support for the establishment of a capital of a Palestinian state in the Arab neighborhoods of East Jerusalem.”

Indeed, Sanders would probably not want to repeat what he and many other Democrats said was Trump’s mistake in moving the embassy — handing one party to the conflict a major gift without leveraging it into getting concessions needed to get closer to an agreement.

Rather, as he indicated in his comment to the Times, Sanders appears more inclined to continue invoking a possible relocation to scare Israel away from taking steps he believes are detrimental to a future peace deal.

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