The law does not require automatic relocation of the embassy

Trump missing embassy waiver deadline by a few days is no big deal, experts say

Though some say there might a political cost, ex-US envoy to Israel Dan Shapiro, who had a hand in 1995 law, says ‘not too many lawyers’ will argue waiver is void if signed late

US President Donald Trump makes his way to board Air Force One before departing from John F. Kennedy International Airport in New York, New York, on December 2, 2017. (AFP Photo/Mandel Ngan)
US President Donald Trump makes his way to board Air Force One before departing from John F. Kennedy International Airport in New York, New York, on December 2, 2017. (AFP Photo/Mandel Ngan)

WASHINGTON — In newsrooms, a deadline is a deadline. But in Washington, DC, they aren’t always as strict as one might expect.

Despite the fact that US President Donald Trump has until Monday to sign a waiver delaying a move of the US embassy from Tel Aviv to Jerusalem for six  more months, he apparently can disregard that deadline by a few days — as he seems poised to do — without triggering immediate major consequences.

While the formal deadline was December 1, it fell on a Friday, and so it was extended to Monday, December 4, after the weekend. But on Monday, there was still no sign of Trump taking action on the waiver, appearing set to make his announcement in a Wednesday speech.

And even though he will have by then missed the deadline,  his eventual decision will be honored, a former US official and another analyst said. A third expert cautioned, however, that there might be a certain political cost.

“I think it’s an accepted practice in Washington and the US government that an enactment of the waiver that was not exactly timely but still in the ballpark, will still be deemed as fulfilling the requirement,” Dan Shapiro told The Times of Israel, on Monday.

A former US ambassador to Israel in the Obama administration, Shapiro was a congressional staffer in 1995 when the Jerusalem Embassy Act — which mandates the embassy’s relocation, but grants the president the prerogative to delay the move based on national security grounds — was passed into law.

Former US ambassador to Israel Dan Shapiro attends at a fare-well session at the Knesset, ahead of his departure from the role on January 17, 2017. (Miriam Alster/Flash90)

At the time of the law’s passage, Shapiro worked as foreign policy aide to Democratic California Senator Dianne Feinstein, who was instrumental in getting the law’s sponsors to insert a provision allowing the president to waive the move. It is this particular stipulation that has prevented the embassy’s relocation for the last 22 years.

Trump is expected to sign the waiver, but simultaneously give a speech Wednesday announcing that he formally recognize Jerusalem as the Israeli capital — an action that is likely to infuriate Palestinians and upset other Arab nations, like Saudi Arabia and Jordan.

The US Embassy building in Tel Aviv, December 28, 2016. (AFP Photo/Jack Guez)

A Palestinian delegation visited the White House on Friday and warned Trump’s senior adviser and son-in-law Jared Kushner that such a move would lead to violence, end the peace process, and instigate a tide of regional instability.

On Sunday, Kushner told the Saban Forum, a conference on the Middle East hosted each December by the Brookings Institution, that the president has yet to make up his mind on the matter.

“The president is going to make his decision,” Kushner told his interviewer, the Israeli-American media mogul and Democratic donor Haim Saban. “He’s still looking at a lot of different facts.”

A White House official on Monday told The Times of Israel: “The president has always said it is a matter of when, not if. The president is still considering options and we have nothing to announce.”

White House senior adviser Jared Kushner watches a ceremony where President Donald Trump was presented with The Collar of Abdulaziz Al Saud Medal, at the Royal Court Palace, May 20, 2017, in Riyadh. (AP Photo/ Evan Vucci)

But for now, Shapiro made clear, Trump could easily postpone signing the waiver for a few days without fearing any major consequences.

The law does not, in fact, require an automatic relocation of the embassy to Jerusalem. Rather, what tangibly happens under the law if the waiver is not signed is that at the beginning of the next fiscal year — October 1, 2018 — 50 percent of the funds earmarked to the State Department specifically for “Acquisition and Maintenance of Buildings Abroad” would be withheld until the United States Embassy in Jerusalem had officially opened.

If Trump ultimately signs the waiver on Tuesday or Wednesday, “There are not too many lawyers who will argue that the waiver has no effect because it was done after the deadline,” said Shapiro, who is now a visiting fellow at the Tel Aviv-based Institute for National Security Studies.

“Even if the account is being frozen, it will be released the moment the waiver is signed,” Shapiro added. “So the freezing of [those] funds is practically meaningless.”

Professor Shlomo Slonim, a Hebrew University expert on US politics and constitutional law, said that Shapiro’s assessment is probably right, “but not because it’s correct, but because nobody is going to try to do anything about it.”

In theory, Slonim added, one could argue that once the deadline for the waiver has passed, the law comes into effect and can no longer be cancelled.

“The waiver postpones the implementation of the law. If you don’t exercise the waiver, what that means is that the law comes into effect. If the law comes into effect the State Department is now under the obligation to transfer the embassy,” he said.

However, he said, it was unclear who would invoke the law. A private citizen or even a member of Congress is unable to go about invoking laws, he said.

Law professor Eugene Kontorovich (Photo credit: Courtesy)

Eugene Kontorovich, a US-Israeli law professor, said Shapiro is right when he says it is “accepted practice” not to care for a deadline to be missed by a few days. “But accepted practice is at odds with the statute, and a bad guide to the future under a new administration,” he said. “‘Accepted practice’ mattered more when no one even thought about not waiving. Now that an embassy move is squarely on the table, not issuing a waiver in a timely manner would be quite significant.”

It is true that Congress cannot legally challenge Trump signing the waiver a few days later, but some on Capitol Hill can be expected “to really give Trump hell over this,” said Kontorovich, who heads the international law department at the Kohelet Policy Forum.

“Moreover, the way the statute works, once a waiver is not made at the expiration of a prior one, it can’t be made afterwards. So ignoring this law will likely have a political cost for Trump.”

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