In 1995, the United States Congress passed a bill that the president opposed. The administration threatened a veto. Constitutional scholars warned of executive overreach. Yet the bill became law and remained on the books for more than two decades before it was ever fully implemented. The secret to its survival was a single paragraph: the presidential waiver provision.
The story of that waiver, detailed in the book "Because It's Just and Right" by Farley Weiss and Leonard Grunstein, offers a masterclass in legislative drafting, compromise, and long‑term strategy. It explains how a clause designed by opponents to neuter a bill instead preserved it, allowing a future administration to finally act. For anyone who studies how laws are made or unmade the presidential waiver is a case study worth understanding.
A Bill Bound for a Veto
The legislation in question passed the Senate 95‑5 and the House 374‑37, veto‑proof majorities on paper. But the administration argued that the bill infringed on the president's exclusive authority over foreign affairs. The Secretary of State sent a letter threatening to recommend a veto unless the bill was changed.
The legislation in question passed the Senate 95‑5 and the House 374‑37, veto‑proof majorities on paper. But the administration argued that the bill infringed on the president's exclusive authority over foreign affairs. The Secretary of State sent a letter threatening to recommend a veto unless the bill was changed.
The sponsors faced a dilemma. They had the votes to override a veto, but a veto would still delay implementation and invite a constitutional challenge in the courts. Even if Congress prevailed, the fight could take years. The better path was to amend the bill in a way that addressed the administration's legal concerns without abandoning the core objective.
A Waiver as an Escape Valve
The solution came in a series of meetings between Senate leaders and administration representatives. The idea was simple: add a provision allowing the president to suspend the bill's most binding requirement, the deadline to move the embassy, if he determined that enforcement would harm national security. The suspension would last six months and could be renewed indefinitely.
The solution came in a series of meetings between Senate leaders and administration representatives. The idea was simple: add a provision allowing the president to suspend the bill's most binding requirement, the deadline to move the embassy, if he determined that enforcement would harm national security. The suspension would last six months and could be renewed indefinitely.
The administration's allies in the Senate, including Senators Dianne Feinstein and Frank Lautenberg, agreed to support the bill if the waiver was included. The sponsors, led by Senator Jon Kyl and Majority Leader Bob Dole, reluctantly accepted. They understood that a law with a waiver was better than no law at all.
Narrowly Drawn, Strictly Defined
The waiver provision was not open‑ended. The book quotes the final text: the president could suspend the deadline only if he "determines and reports to Congress in advance that such suspension is necessary to protect the national security interests of the United States." The report had to include "a statement of the interests affected" and "a discussion of the manner in which the limitation affects the interests."
The waiver provision was not open‑ended. The book quotes the final text: the president could suspend the deadline only if he "determines and reports to Congress in advance that such suspension is necessary to protect the national security interests of the United States." The report had to include "a statement of the interests affected" and "a discussion of the manner in which the limitation affects the interests."
Senators Kyl and Dole made clear on the Senate floor that the waiver was meant to be used narrowly only for genuine national security emergencies, not for policy disagreements. In a colloquy entered into the Congressional Record, Dole stated: "The President cannot lawfully invoke this waiver simply because he thinks it would be better not to move our Embassy to Jerusalem or simply because he thinks it would be better to move it at a later time." Kyl added that the waiver was "intended to address unusual or unforeseen circumstances."
How a "Poison Pill" Became a Lifeline
The administration's allies had hoped the waiver would effectively kill the bill. If the president could delay implementation indefinitely, what was the point? But the sponsors saw it differently. The waiver kept the law alive. It allowed the president to delay without having to repeal the law. And as long as the law remained on the books, a future president could choose not to exercise the waiver.
The administration's allies had hoped the waiver would effectively kill the bill. If the president could delay implementation indefinitely, what was the point? But the sponsors saw it differently. The waiver kept the law alive. It allowed the president to delay without having to repeal the law. And as long as the law remained on the books, a future president could choose not to exercise the waiver.
That is exactly what happened. For 22 years, presidents Clinton, Bush, and Obama invoked the waiver every six months. Each time, they submitted the required reports, citing national security concerns. The law was never repealed. The waiver was never removed. And eventually, a president came to office who decided that the national security justification no longer applied.
The Constitutional Genius of the Waiver
Why did the waiver work? Because it addressed the core constitutional objection. Opponents had argued that the bill violated the separation of powers by compelling the president to take a specific action in foreign affairs. By giving the president the authority to suspend that action, subject only to a reporting requirement, the bill no longer commanded; it permitted. The president retained ultimate control. The waiver turned a potential constitutional crisis into a routine administrative process.
Why did the waiver work? Because it addressed the core constitutional objection. Opponents had argued that the bill violated the separation of powers by compelling the president to take a specific action in foreign affairs. By giving the president the authority to suspend that action, subject only to a reporting requirement, the bill no longer commanded; it permitted. The president retained ultimate control. The waiver turned a potential constitutional crisis into a routine administrative process.
Legal scholars later noted that the waiver provision likely saved the law from being struck down by the Supreme Court. A 2015 decision in a related case, Zivotofsky v. Kerry, confirmed that
Congress cannot force the president to contradict an executive branch recognition determination. But because the Jerusalem Embassy Act included a waiver, the president was never forced to do anything. He always had a choice.
Lessons for Legislative Drafters
The presidential waiver offers several lessons for anyone involved in drafting legislation or negotiating compromises:
The presidential waiver offers several lessons for anyone involved in drafting legislation or negotiating compromises:
- A waiver can turn a zero‑sum fight into a deferral. When two sides disagree on timing or implementation, a waiver allows both to claim victory. One side gets the law on the books; the other gets a delay.
- Narrow language matters. The waiver was not a blanket exemption. It required a specific finding ("necessary to protect the national security interests") and a written report to Congress. That reporting requirement created accountability.
- A sunset or renewal provision prevents permanent evasion. The six‑month renewal period forced the president to revisit the decision regularly. It also gave Congress periodic opportunities for oversight.
- A waiver does not have to be permanent. The sponsors understood that a future president might see things differently. They built the law to last.
The Unintended Consequence
There is a delicious irony in the waiver's history. The administration officials who demanded the waiver hoped it would permanently block the law's implementation. Instead, by keeping the law alive, the waiver ensured that the law would eventually be implemented. A clause designed to kill the bill became the very mechanism that preserved it.
That is the art of legislative compromise. Sometimes you give ground to save the whole. You accept a waiver today because you trust that tomorrow's leaders will see the wisdom of acting. And if they don't, the law remains as a silent witness, waiting for its moment.
Why This Matters Beyond One Law
Presidential waivers appear in hundreds of federal statutes. They are used in trade agreements, sanctions regimes, environmental laws, and budget acts. The waiver in the Jerusalem Embassy Act is not unique – but its 22‑year journey from compromise to implementation is unusually instructive. It shows that a well‑drafted waiver can:
Presidential waivers appear in hundreds of federal statutes. They are used in trade agreements, sanctions regimes, environmental laws, and budget acts. The waiver in the Jerusalem Embassy Act is not unique – but its 22‑year journey from compromise to implementation is unusually instructive. It shows that a well‑drafted waiver can:
- Defuse constitutional objections
- Allow a law to survive a hostile administration
- Preserve legislative intent for the long term
- Create a mechanism for future action without forcing immediate confrontation
For anyone who follows Congress, the story of the presidential waiver is a reminder that lawmaking is not just about winning votes. It is about drafting language that can withstand constitutional scrutiny, political opposition, and the passage of time. The best legislative draftsmen think not in terms of months or years, but in decades.
Conclusion
The presidential waiver provision that saved the Jerusalem Embassy Act was not a surrender. It was a strategic retreat that preserved the battlefield for another day. The sponsors understood that a law with a waiver is infinitely more powerful than a law that never passes or a law that is struck down by the courts. They accepted the delay because they were playing the long game.
The presidential waiver provision that saved the Jerusalem Embassy Act was not a surrender. It was a strategic retreat that preserved the battlefield for another day. The sponsors understood that a law with a waiver is infinitely more powerful than a law that never passes or a law that is struck down by the courts. They accepted the delay because they were playing the long game.
Twenty‑two years later, their patience paid off. The waiver was exercised for the last time. The law was finally implemented. And a clause that opponents thought would bury the bill became the very reason it survived. That is the art of the waiver, and a lesson in legislative craftsmanship that every lawmaker and policy advocate should study.
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