The White House is considering ignoring a law, expected to pass Congress, that calls on the State Department to take steps recognizing Jerusalem as Israel’s capital.
The State Department Authorization Act, which passed the U.S. House of Representatives on Wednesday, includes language requiring the State Department to bring the U.S. consulate in Jerusalem under the auspices of the American embassy in Tel Aviv and to recognize that Jerusalem residents live in Israel.
The State Department currently treats Jerusalem as a separate entity to avoid complicating efforts to forge an Israeli- Palestinian peace agreement. The Palestinians reject the designation of the city as Israel’s capital and hope to establish their own capital in eastern Jerusalem.
Most State Department publications do not describe Jerusalem as part of either Israel or the West Bank. American citizens who are born in Jerusalem have only the city name, without any country, listed in their passports. And the U.S. Consulate in Jerusalem deals predominantly with Palestinians, working independently of the embassy in Tel Aviv.
But the authorization act, which sets Congress’ policy priorities for the State Department, includes language that would prohibit the use of funds for the Jerusalem consulate or for State Department publications until the department changes the way it relates to the city.
The bill is expected to pass the Senate before the end of the term and to be signed by the president. However, sources tell JTA that the White House will ignore the Jerusalem provisions, claiming that they violate the separation of powers between Congress and the executive branch.
“It is going to be challenged under the idea that the legislative branch has exceeded its authority to advise and consent on foreign policy, and has crossed into policy formulation,” one source said.
Sources say the Bush administration believes Congress’ stance on this issue obstructs the White House’s freedom in setting foreign policy, and that it can basically ignore the provisions.
Instead of vetoing the legislation or seeking a compromise, however, the administration is expected to simply ignore the provisions.
Mary Cheh, a constitutional law professor at George Washington University, said the constitution grants the president discretion on foreign policy matters, which would allow him to ignore the provisions in the authorization act with near impunity.
Congress cannot take the matter to court, Cheh said; only a person who has been harmed by noncompliance with the provision could do so, and would have to prove actual damage.
“It’s plausible for the president to ignore this, claiming it intrudes on his authority of foreign policy,” Cheh said. “If the president chooses to do nothing, he can do it without going to Congress.”
Courts tend not to get involved in cases like this, viewing them as political issues, Cheh said. Even when they do intervene, the law remains murky.
The status of Jerusalem has been a hot-button issue both in the Middle East and in Congress.
In 1995, Congress passed the Jerusalem Embassy Act, which required the president to move the U.S. embassy in Israel from Tel Aviv to Jerusalem. But the bill included a national security waiver, and presidents have postponed the move every six months since the law was enacted.
Since then, lawmakers have been trying to take other actions against the State Department’s stance on Jerusalem, but couldn’t garner enough bipartisan support until this year.
Lawmakers who supported the act are furious over the White House’s stance.
One congressional official called the White House strategy “curious,” noting that Congress regularly stipulates provisions on the use of funds and the White House doesn’t object.
“It doesn’t seem to make sense,” the official said. “But they wouldn’t say it unless they thought they could actually do it.”
The official said some lawmakers might “go to the ends of the earth” to fight the White House stance.
White House spokespeople were unavailable for comment.
The Archive of the Jewish Telegraphic Agency includes articles published from 1923 to 2008. Archive stories reflect the journalistic standards and practices of the time they were published.
