Talk:Jerusalem Embassy Act

Copy to Wikisource
the full text of the law must be moved to wikisource. Oren neu dag (talk) 16:04, 29 December 2007 (UTC)

question
Was this bill signed into law, or was it merely passed by the two chambers? This is not clear from the article. —Preceding unsigned comment added by Gangeska (talk • contribs) 22:59, 1 April 2009 (UTC)

the sentence "However, U.S. presidents, including George W. Bush and Bill Clinton, have argued that Congressional resolutions regarding the status of Jerusalem are merely "advisory"," should not contain the word "including", these are the only to presidents to serve since the act was passed and thus the only two to have "argued ANYTHING about its status as "merely advisory." i've changed that sentence to remove "including." SJMNY (talk) 02:48, 29 January 2008 (UTC)

The Constitution, and the Restatement (Third) Foreign Relations Law of the United States 1984 §
Berg said if the State Department was forced to relocated the Embassy it could construct it and still continue to argue Jerusalem isn't the capital. Berg doesn't dismiss that premise. He simply uses different words to restate the same thing when he says Congress can't force the President to recognize Israel's sovereignty over Jerusalem. It is a Constitutional issue that has nothing to do with the Senater Bill or Berg.

The opinion that "it cannot use the ‘‘spending power’’ to order the Executive either in 1996 or 1999 to make that building an embassy rather than a consulate or cultural center." is not a view shared by all. Here is another article that cites the US Constitution; the Restatement (Third) Foreign Relations Law of the United States 1984 § 203 and § 204, 1984, American Law Institute; and the Jerusalem Embassy Act, [http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?position=all&page=S15166&dbname=1995_record 141 Cong. Rec. S15166] (daily ed. Oct. 13, 1995) (introduction of S. 1322); id. S15176-79 (daily ed. Oct. 13, 1995) (remarks of Sen. Dole) (comparing S. 1322 to S. 770):


 * What you cite is from an article, [From the Legal Time, Oct. 9, 1995] CAN CONGRESS MOVE AN EMBASSY? (By Malvina Halberstam), entered into the record BY Sen. Dole. It was not read aloud as part of his floor statement but merely submitted for printing.

"But it is true, as Justice asserts, that the President holds the power to recognize foreign states and governments. That power is exclusive. It extends not just to states and governments, but also to claims of territorial sovereignty, such as claims to sovereignty over disputed cities like Jerusalem. The President's exclusive recognition power implies that he has broad discretion to interpret the waiver provisions of the Jerusalem Embassy Act. His recognition power implies that he has broad latitude to determine whether moving the Embassy undermines the "national security interests" of the United States. A narrow interpretation of the waiver provision would impermissibly interfere with the President's exclusive recognition power.


 * That's not what I find, again in the 3rd person's article, under ‘‘COMPARISON OF S. 770 AND S. 1322’’ (S15179) either...
 * 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).

Senator Dole and others who prefer a narrower reading of the waiver authority may acknowledge that the President has a power of recognition. But they will argue that this power, even if exclusive, does not include an exclusive power to decide on the location of a United States Embassy. They will point out that the location of an embassy does not necessarily imply recognition of that city as a state's capital. They will conclude that moving the Embassy to Jerusalem does not usurp the President's recognition power, because the President can always clarify that the move does not change the United States' recognition policy - that Jerusalem's status should be resolved through negotiations. Indeed, the United States has done this in other circumstances. The United States maintained an embassy in East Berlin but made clear that the United States did not regard East Berlin as the capital of Germany. Even today the United States maintains a few embassies in cities other than the host state's capital city. In such cases the executive branch is perfectly capable of clarifying what it regards as the actual capital of the host state. Therefore, this argument runs, the Congress can set the location of an embassy without intruding on the President's recognition power" == 45 CATH. U.L. REV. 837, Spring, 1996, THE FUTURE OF JERUSALEM: A SYMPOSIUM: THE JERUSALEM EMBASSY ACT OF 1995, Geoffrey R. Watson harlan (talk) 07:51, 5 January 2010 (UTC)


 * S.770, which Berg opines about in National Review, did not have any form of Presidential waiver what-so-ever - in effect making his opinion Moot and unusable here. Dole inserted the waiver clause ON October 23, 1995 as an amendment to S.1322, again NOT the bill Berg was writting about or even aware of. George Orwell III (talk) 08:45, 5 January 2010 (UTC)


 * Berg was explaining a constitutional issue that has nothing to do with the waiver. You've gone out of your way to ignore that. The Constitution and the Third Restatement are not new developments. So, I'm going to once again explain, in the Background subsection, that the city where an embassy is located is not automatically recognized as the capital - no ifs, ands, buts, or maybes. harlan (talk) 08:30, 5 January 2010 (UTC)


 * THAT nugget is better suited for some other article that may be cited FROM here if at all -- but it has NOTHING to do with the background for specifically the Jerusalem Embassy Act of 1995. The background should just be mirroring and expanding (to a reasonable extent) Section 2 Findings of the proposal as passed. 08:45, 5 January 2010 (UTC)


 * I'll cite and quote the Restatement and 45 CATH. U.L. REV. 837. harlan (talk) 09:10, 5 January 2010 (UTC)

45 CATH. U.L. REV. 837, Spring, 1996, THE FUTURE OF JERUSALEM: A SYMPOSIUM: THE JERUSALEM EMBASSY ACT OF 1995


 * I don't care what you cite as long as it falls under the appropriate sub-section. Spring 1996 most certainly falls into Developments since Passage & your Berg-Constitutional-Premise would fall under Contstitutional seperation of Powers -- NOT background for proposing the legislation. None of what you present addresses the failure of the court cases brought against the Secretary of State (in External Links) in case you missed it. George Orwell III (talk) 09:33, 5 January 2010 (UTC)

Private citizens have to bring lawsuits, because they aren't delegated the constitutional power to repeal or amend legislation. The article specifically explains that, when Dole and Kyl introduced the Presidential waiver, they stated that it would be repealed if it was perpetually abused. The precedent of repealing or amending legislation and of maintaining embassies in cities that were not considered capitals (including Tel Aviv) most certainly was background to the bill.


 * ONLY if you finish with the absolute and complete failure to date of either repealing the waiver clause AS WELL AS the inability of Congress to even secure similar funding incentives/penalties as the premise begs on top of a failed legal challenge against the Secretary of State. It is hypocritical to introduce the premise full well knowing no such validation for its effectiveness has occurred in the time since Nov. 1995. —Preceding unsigned comment added by George Orwell III (talk • contribs) 19:44, 5 January 2010 (UTC)

BTW the Constitution doesn't mention an exclusive "foreign affairs" recognition power. It's based on case law precedents. The Constitution vests some powers in the Congress, some in the President and the Senate, and some in the President alone. For example, Oetjen v. Cent.Leather Co., 246 U.S. 297, 303 (1918) is still one of the controling precedents on recognition. It begins "When one of the political branches recognizes a State as a state". The Department of Justice memo cites US v Butler, a 1936 decision. It is the only case in which the Court held that a federal appropriation was invalid because of the unconstitutionality of a provision that didn't involve infringement of an individual right. It was an agriculture bill that intruded on states rights reserved in the 10th Amendment, not a bill on Presidential powers in the area of foreign relations. Even strong proponents of broad executive power in foreign affairs agree that Congress can use the appropriations power to effect the conduct of foreign affairs. Malvina Halberstam wrote about that in "The Jerusalem Embassy Act", 19 Fordham International Law Journal 1379, April 1996. All of that is background. harlan (talk) 16:26, 5 January 2010 (UTC)


 * Unless it relates to this Act specifically you can spout one legal citation over another - it is still a tangent, at best, rather than germaine. Maybe you should create another article dealing with the question and point to that from here but in no way shape or form does ANY of that have to with the BACKGROUND for the passage of this act. However, you may introduce the question(s) raised afterwards as part of developments since passage but even then what I feel you are trying here is to make the Act subservient to the questions raised and Constitutionality of this thing or that thing rather the other way around. Berg piece falls flat so you abandon it for some other factoid that moves farther and farther from the Act itself into areas dealing with issues best suited for other subjects or articles by themselves. Unfortunately this article has to with the Embassy Act first and foremost. George Orwell III (talk) 19:37, 5 January 2010 (UTC)

(outdent) The "Developments" section is a WP:Synth editorial written in the voice of the encyclopedia. It says "The U.S. Congress has not managed to repeat the incorporation or passage of language similar to Section 214's needed to even be able to attempt forcing a foreign policy change by witholding funding." But it only cites Breger's Jerusalem Gambit, that was published the day before the Dole bill was adopted. That article doesn't mention the passage of Section 214, or Congress' failure to repeated its passage at all. The Developments subsection does not reflect the actual range of published views on that particular subject. Scholars and practitioners like Malvina Halberstam, Gerald Charnoff, Charles J.Cooper, or Michael Carvin actually submitted background memoranda for the record and published articles after the fact which discussed the case law and diplomatic precedents. The Watson article notes the Charnoff Memorandum, reprinted in 141 Cong. Rec. S15741, and S15742, discussed and relied upon South Dakota v. Dole. In that case the Supreme Court upheld a federal statute withholding funding. The Watson article says there was a colloquy between Dole and Kyl on the floor of the Senate about revoking the Presidential waiver in the event of perpetual abuse. All of that is undeniably background on this bill.

I can't demonstrate that any of the waivers issued so far constitutes abuse, or that there aren't plans to eventually revoke the waiver. You can't require other editors to include WP:Synth editorial statements or draw conclusions beyond what the published sources have to say on the matter. BTW the Courts have looked at the act, and have not declared that it is unconstitutional. The Appeals Court in Zivotofsky rejected the government's argument that section 214 was merely advisory, and sent the case back to the lower court. The lower Court subsequently ruled that it had no jurisdiction over political questions, and cited Oetjen v. Cent.Leather Co., 246 U.S. 297, 303 (1918), which says the two political branches have the power to recognize states. Private tort claims have no bearing on the exercise of the constitutional powers of the Congress to |dispose of political questions]. The executive branch has never attempted to overturn the act in any of its appearances before the courts, and Presidents keep signing the waivers which supposedly intrude on Presidential powers.

All of the published sources agree that it is a fact that locating an embassy in a city does not make it the capital, and that the issue had been discussed as an issue in connection with the earlier Kyl bill that was introduced in May 1995. In any event the Watson article cites Breger's Jerusalem Gambit article on that particular point of law, and applies the argument with equal force to the Dole bill. I most certainly can cite Watson's published views about the applicability of Breger's earlier arguments.


 * OK FINE ALREADY - I GET THAT PARADIGM COULD BE IN PLAY. You choose to ignore actual events in spite of that premise. The point betrayed yet supremely related to this Act has been CONGRESS' behavior and the repeated attempt to make capital status part of US Foreign Policy in spite of that valid premise or the many other events on the ground in the interim. Congress has, at the minimum, issued joint resolutions re-re-re-re-stating Jerusalem should be the recognized capitol on at least a bi-annually schedule since 1998 (the first 6 month review & report). In addition, nearly every State Department & Related Operations Appropriations bill since has also attempted one way or the other to amend or include as a rider the same language as, for lack of a better term, the lone successful endeavor did with that Sec. 214 and beyond. The same variation on a theme is true with nearly all the annual Fiscal Year Foreign Operations Authorization proposals since 1998 as well. This Congressional behavior has begun to morph even further into the introduction of numerous stand-alone incarnations containing the same language but made ready to attach to or amend with on any proposal, related or not, given the chance. Currently the language HAS gone all the way to repealing Section 7 waiver powers (see Refs # 24 & 25 for latest examples, # 29 for a separate string). A full listing of would be long and complicated but I may be able to produce it over the next weekend if there is any doubt that this has not been the case. George Orwell III (talk) 05:37, 6 January 2010 (UTC)

As for the matter of so-called "subservience", Chief Justice Marshall noted that the supremacy clause of the Constitution makes all statutes subservient, since the enumerated methods of amending the constitution do not include Statutes. harlan (talk) 01:48, 6 January 2010 (UTC)
 * You seem correct, but just re-writing the prose to say ‘The right-wing elements of the Israel lobby have not managed to entice the U.S. Congress to repeat the incorporation…’ would be closer to the situation and plans, based on the refs I have seen. CasualObserver&#39;48 (talk) 03:57, 6 January 2010 (UTC)
 * Never questioned the correctness of any of that - only if incorporating those points into this work goes past normal relevance. The points could be/should be cited in passing to some degree or manner and wiki-linked to whatever article or category better deals with those points from here. George Orwell III (talk) 05:37, 6 January 2010 (UTC)

Definition
It seems to me that this line is inaccurate: "Israel's declared capital is Jerusalem, but this is not internationally recognized, pending final status talks in the Israeli-Palestinian conflict"

It would be better worded as: "Israel's seat of government is Jerusalem, but this is not internationally accepted, pending final status talks in the Israeli-Palestinian conflict"

There is the fact of what is a capital city based on the accepted definition of the word - a city which "functions as the seat of government and administrative centre of a country or region. . Then there is the political decision not to "recognize" that fact when applied to Jerusalem. The current wording of the article seems to accept the political stance of recognition as somehow affecting the objective reality of where the Israeli government is located (the "capital"). I suspect that the average reader of an article such as this has not thought through the various issues and therefore the article ought to highlight them without taking sides. The dictionary definition is indeed an objective fact. Jerusalem is in fact the capital. The recognition issue is either (a) a symbolic stance representing their desire to appear sympathetic to Palestinian territorial claims (or at least neutral) or (b) an attempt to affect the future change in the fact (eg, that the Israeli government should move to a different location). But the lack of recognition does not change the fact of where the government is located (the objective capital), and the article should clarify this. In light of this argument, please comment on my above proposed edit.Narc (talk) 04:29, 12 October 2012 (UTC)
 * Sounds like a bunch of OR and Synth to me I'm afraid. A lot of RS do not in fact describe this as a fact but rather as a "claim" made by Israel or as a "designation" that has not been recognized. Your own deductions as an editor based on a source (the dictionary) that does not discuss the topic of this article cannot be used to trump RS that discuss the topic.
 * For sources that discuss this topic and support the current wording, see e.g


 * "White House hopeful Mitt Romney on Sunday hailed Jerusalem as the capital of Israel, in an apparent endorsement of a position held by the Jewish state but never accepted by the international community."
 * "Though Israel has declared Jerusalem as its capital....."Dlv999 (talk) 07:16, 12 October 2012 (UTC)
 * What, then is your definition of "capital"? The sources that call this is a "position" contradict the dictionary definition, and therefore themselves appear to be biased. What then is your non-dictionary definition, if not where the government sits? If I want to know where the government of a country is, I ask what is the capital city. In the USA, each state has a capital which is USUALLY NOT the most important city in that state (economically, socially, prestige), merely where the government is. The wikipedia article on Israel states as a fact that " Jerusalem is the country's most populous city and its capital (although not recognized internationally as such)". See also the sidebar on that article. See also the List_of_national_capitals What you are arguing is inconsistent with these wiki precedents and would require re-writing them.Narc (talk) 18:24, 18 October 2012 (UTC)
 * An alternative to my proposed re-wording would be merely to delete the word "declared" from the sentence in question, which would make it consistent with these other wiki articles.Narc (talk) 18:24, 18 October 2012 (UTC)
 * Aside from Jerusalem, there are other cities in the world that house a country's seat of government, but are not in fact the capital. For instance the Capital of the Netherlands is Amsterdam, but the seat of government is the Hague. Are you saying that your general dictionary definition trumps what reliable sources say in the case of the Netherlands?
 * I will propose an alternative:-
 * "Israel's seat of government is Jerusalem, but it is not internationally recognized as its capital, pending final status talks in the Israeli-Palestinian conflict"
 * This is agreed upon by all sources from what I can tell. If you believe that "seat of government" is a synonym for "capital" you should have no objection to this formulation. Dlv999 (talk) 19:15, 18 October 2012 (UTC)
 * What reliable sources? Your citation of Amsterdam is a specious as it and the Capital_(political) article on which it relies are two of the worst wikipedia articles I've ever seen, with absolutely no references supporting their core assertions, respectively, that Amsterdam is the capital (if the government ain't there, it ain't the capital), and the definition of "capital city". Moreover, that article lists other cities which are allegedly capitals but do not have the government. They are all specious references:
 * The Porto_Novo article itself states explicitly that the national legislature is there
 * Sucre indeed is home to the Bolivian Supreme Court.
 * The Yamoussoukro indeed calls it the capital city (as distinct from the "economic capital"
 * Finally, the Amsterdam article itself admits that it only can be called "capital" because it is referred to as such in the constitution, but in fact is not the capital in the normal sense of the word.
 * Sorry, Charlie. Sadly, it appears this sloppy, unsupported thinking has crept into many related articles. See, for instance, http://en.wikipedia.org/wiki/Governance#Seat_of_government and then uncritical readers say, "see - reliable sources!"Narc (talk) 01:17, 19 October 2012 (UTC)
 * "Even the centalization of political institutions in a capital is not a given, although the number of exceptions remain limited. 38"
 * 38: "Amsterdam is the statuary capital of the Netherlands, while the Dutch government resides in De Hague. Bolivia has a legal capital, Sucre, which hosts the judiciary branch, whereas the government is seated in La Paz. In South Africa, the key governmental functions are divided among three cities: Pretoria (administrative), Cape Town (legislative) and Bloemfontein (judiciary). Yamous-soukro has been the capital of the Cote d'Ivoire since 1983, but Abidjan remains the seat of government. From 1949 to 1991, the Federal Republic of Germany had key functions of the constitutional order outside of Bonn - from Berlin and Kassal to Frankfurt and Karlsruhe."
 * Dlv999 (talk) 08:43, 19 October 2012 (UTC)
 * maybe i missed this, but http://www.merriam-webster.com/dictionary/capital - definition 3b. capital = seat of government. so....why the argument? say capital, put an asterisk there, put a comment in parenthises, if you want. why use three words instead of one? Soosim (talk) 10:56, 19 October 2012 (UTC)
 * The Meriam Webster dictionary is not discussing the topic of this article - the Jerusalem Embassies act. Editors OR based on a source not discussing the topic of this article can not trump RS coverage of the topic of this article. Aside from that I have provided a gold standard academic source which categorically states that the seat of government does not always reside in the country's capital - so the Meriam Webster definition is an oversimplification per academic RS that discuss the issue. Dlv999 (talk) 11:04, 19 October 2012 (UTC)
 * Nice try, sir, but not quite. Read your "gold standard" source carefully and critically: Daum is telling us that these are the exceptions, and the rule is that the capital is the seat of government. Nor have you responded to my previous critique above.Narc (talk) 19:37, 19 October 2012 (UTC)
 * Daum is telling us that "centalization of political institutions in a capital is not a given" and proving the point with cited examples where the capital is not the seat of government. Therefore according to an academic RS, your own original research drawing conclusions about specific cases from a general dictionary definition is problematic. But this kind of discussion is superfluous, even if your OR were sound it would still be OR and not suitable for inclusion in the encyclopedia. The right thing to do, according to Wikipedia policy, would simply be to look at what RS have said in coverage of the topic and simply report that. Dlv999 (talk) 22:40, 19 October 2012 (UTC)
 * Nice selective quote of a RS. I agree wholeheartedly to use Daum and avoid OR. But you're misreading Daum. The full quote that you originally gave ends with, "...although the number of exceptions remain limited". In other words, according to Daum, centralization of political institutions is the RULE and there are a few EXCEPTIONS to this rule (so few, in fact, that they constitute less than 0.5%. You are asserting that the "exceptions" are the rule, and Daum is clearly stating otherwise.Narc (talk) 15:38, 21 October 2012 (UTC)
 * PS, I take it from your citing Daum that you accept my above critique regarding your initial point about "reliable sources"...?Narc (talk) 15:42, 21 October 2012 (UTC)
 * Still awaiting your response. I appreciate your showing me Daum's book - he actually shows nuances in the English term, "capital"; however, the article currently reflects only one of Daum's several definitions of a capital, and thus the article is skewed and incomplete. Daum doesn't seem to express a preference for one sense over another, although he does state that most "capital" cities in the world are political capitals.Narc (talk) 16:38, 23 October 2012 (UTC)

Garbage article
Doesn't contain ONE FUCKING WORD about the drafting of the bill, which is precisely what the article should talk about. WP is a sham.184.145.42.19 (talk) 23:20, 22 January 2017 (UTC)
 * I wouldn't want use the words above, but I did go here to find out why the act was proposed so agree with the noted lack of a background. Preslav (talk) 13:10, 6 December 2017 (UTC)

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Presidential Determination No. 2018-02
It seems someone added a section into the second paragraph, quoting the Presidential Determination 2018-02 and claiming that it effectively stopped the relocation of the US Embassy. Initially, I corrected it and said that it only delayed it for six months, but then I got to reading it and what it actually says.

It actually says nothing of the sort.

The Presidential Determination referenced states: "By the authority vested in me as President by the Constitution and the laws of the United States, including section 7(a) of the Jerusalem Embassy Act of 1995 (Public Law 104-45) (the "Act"), I hereby determine that it is necessary, in order to protect the national security interests of the United States, to suspend for a period of 6 months the limitations set forth in sections 3(b) and 7(b) of the Act."

Okay, let's go check 3(b) and 7(b) of the Act, and see what exactly the President suspended.

3(b): "Opening Determination.--Not more than 50 percent of the funds appropriated to the Department of State for fiscal year 1999 for 'Acquisition and Maintenance of Buildings Abroad' may be obligated until the Secretary of State determines and reports to Congress that the United States Embassy in Jerusalem has officially opened."

So in essence, we can't allocate more than 50 percent of the money appropriated until the new embassy is officially opened. But wait, what does 7(b) say?

7(b): "Applicability of Waiver to Availability of Funds.--If the President exercises the authority set forth in subsection (a) in a fiscal year, the limitation set forth in section 3(b) shall apply to funds appropriated in the following fiscal year for the purpose set forth in such section 3(b) except to the extent that the limitation is suspended in such following fiscal year by reason of the exercise of the authority in subsection (a).

OK, so the President can exercise the authority in section 7(a) which will mean that the limitation in 3(b) will apply to the following fiscal year. Cool, what does 7(a) say?

7(a): "Waiver Authority.--(1) Beginning on October 1, 1998, the President may suspend the limitation set forth in section 3(b) for a period of six months if he determines and reports to Congress in advance that such suspension is necessary to protect the national security interests of the United States."

Aha! There it is. So it appears that the President has used the national security argument and has suspended the 50 percent funding cap for the embassy for this fiscal year. The fiscal year began on October 1, 2017.

I have edited the sentence accordingly. It now reads, "After the announcement, President Trump signed a Presidential Memorandum for the Secretary of State (Presidential Determination No. 2018-02): a declaration that waived the 50% funding cap normally in place when a new Embassy is opened, stating that the suspension is necessary to "protect the national security interests of the United States.""

If you are interested in reverting this section back to what you thought it should be, please explain how removing a funding cap effectively halts the move of the Embassy. Schlice (talk) 00:08, 7 December 2017 (UTC)

Promises to move
I'm not sure if it would best go here or there is a better article for it, such as the one for the embassy now that it is moved, but it seems like the long history of Presidents and candidates making the move of the embassy a campaign promise is notable, especially in light of how it has now happened an debate surrounding it. Here are some references to Bush, McCain, and Romney promising the move as well as the Republican Party platform calling for it and more measured statements by Clinton and Obama that are generally viewed as supporting a move though not promising one as clearly as Republicans tend to have done.

I'm sticking them here as I feel they should be incorporated somewhere and somehow, they are definitely a notable part of the historical context I think. But I'm not confident this is exactly the right place or how so soliciting suggestions and consensus seems like the best suggestion. It seems like a notable part of the history of this issue that shouldn't be lost wherever the right place for it to be referenced is. Phil (talk) 03:51, 16 May 2018 (UTC)

Washington Post covering a range of promises Bush, Romney and Republican Party platform calls to for the move as well as covering Obama and Clinton's comments and actions

McCain's campaign promise too