Taiwan and the Foreign Affairs Constitution_ the Constitutional Questions Raised by the Taiwan Relations Act

On December 15th, 1978, President Carter set forth a new era in American diplomacy. Declaring that the United States “and the People’s Republic of China (PRC) have agreed to recognize each other and to establish diplomatic relations,” Carter derecognized the Republic of China (henceforth Taiwan) and formally acknowledged the PRC’s position that there is but one China, and that Taiwan is part of said China [1]. Though years in the making, this development nevertheless lit a political firestorm.

Despite Carter’s qualification that Washington would “continue to have an interest in the peaceful resolution of the Taiwan issue,” for many in Congress, Carter’s handling of Taiwan was problematic [2]. Having not consulted the legislature until the last minute, and seemingly abandoning a key ally, a congressional supermajority sprung into action to rein in Carter’s conduct. The result was the passage of the Taiwan Relations Act (TRA), a bill that has guided our nation’s ties with Taiwan––and, to an extent, the PRC––since its signing into law [3].

Yet this legislative attempt at reining in executive foreign affairs power raises important constitutional questions: can the Congress condition the executive’s external recognition of sovereign states via statute? And can the legislature mandate that the executive sell arms to a foreign entity? My answer is twofold: the law’s language on conditional recognition is unconstitutional, but Congress’s directing of the executive to sell arms to Taiwan is far less legally clear. Ultimately, however, these constitutional questions are not likely to be addressed via the judiciary but rather through politics. Indeed, I argue that the Constitution invites a challenge between the executive and the legislature on foreign affairs power, one that the TRA reflects. Political dynamics thereby suggest that the TRA will remain legally unchallenged.

Recognition Power and the President

The TRA contains statutory language that conditions Washington’s recognition of the PRC as the sovereign government of China. As the act reads: “It is the policy of the United States––(3) to make clear that the United States decision to establish diplomatic relations with the People's Republic of China *rests upon the expectation * that the future of Taiwan will be determined by peaceful means [4].” Such conditionality upon recognition is unconstitutional, for it is not up to Congress but solely upon the executive to determine whether and how to recognize sovereign entities.

Article II, Section 3, of the Constitution declares that the President “shall receive Ambassadors and other public Ministers [5].” Through this textual authority, the President alone has the power to recognize sovereign states. As noted by the Supreme Court in Zivotofsky v. Kerry (2015), under “the Reception Clause in Article II of the U.S. Constitution, only the President may grant formal recognition to a foreign sovereign [6].” Because the clause specifically references the President alone, it is understood to affirm his unilateral authority to grant formal recognition to other nations [7].

Furthermore, the Court held that the realities of international relations imply that this power is exclusive to the executive. “At the time of the founding, receiving an ambassador was considered tantamount to recognizing the sending state’s sovereignty;” consequently, the clause is “understood to acknowledge the President’s power to recognize other nations” and their representatives alone [8]. And when considering that the President has the power to engage in secret diplomatic channels, as well as to act as a unitary actor embodying the nation internationally [9], the dynamics of international relations require exclusive executive recognition power to ensure America’s foreign policy is consistent. “Functional considerations also suggest that the President’s recognition power is exclusive,” for the “Nation must ‘speak… with one voice’ regarding which governments are legitimate in the eyes of the United States [10].” Hence the Court’s holding determined that both constitutional and practical measures established the executive’s sole authority over recognition.

As such, Subsection 3 of Section B of the TRA is unconstitutional. By qualifying that Washington’s establishment of diplomatic relations with the PRC “rests upon the expectation that the future of Taiwan will be determined by peaceful means [11],” the statute determines what the conditions for recognition should be, in direct conflict with the President’s unilateral power to recognize. Validating this understanding, as written by political historian Richard Bush, Congress made clear that the “normalization decision clearly rests on that [peaceful means] expectation,” meaning Subsection 3 contains “an explicit linkage” between recognition and what Congress deems to be the appropriate American policy vis a vis Taiwan and the PRC [12]. In so doing, Congress side-stepped into the Reception Clause, denying the nation a unitary voice in international affairs in contravention of the Constitution.

Moreover, as determined by the Court in Zivotovsky, “the President’s authority ‘is not limited to a determination of the government to be recognized,’” but also “‘includes the power to determine the policy which is to govern the question of recognition [13].’” Ergo, the President, and not the Congress, determines both recognition and the policy to guide said recognition,* strongly suggesting that the TRA’s conditionality statute contravenes an exclusive executive prerogative.

Congress v. the President: the Sale of Arms Abroad

Likewise, Subsection A of Section 3 of the TRA raises questions concerning the statute’s constitutionality regarding foreign affairs power. As the act states, “the United States will make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability [14].” Legislative practice and precedent would ordinarily endow the executive discretion on this matter, but the TRA instead establishes a joint executive-legislative role by noting that the “President and the Congress shall determine the nature and quantity of such defense articles and services based solely upon their judgment of the needs of Taiwan, in accordance with procedures established by law [15].” In this regard, the statute raises an important constitutional question: can Congress, not only direct the President to provide arms to a foreign entity, but seemingly not provide explicit unitary executive discretion to do so?

As Richard Bush further outlines, “Congress’s initial purpose” was “to legislate U.S. arms-sales policy and constrain the flexibility of the executive branch [16];” as a result, the ambiguity concerning the decision-making roles of the executive and legislative branches inherent in the TRA “suggests a greater than normal congressional role [17].” Jacque deLisle provides a similar argument, stating that the “TRA is an unusual exercise of congressional power to set and embed foreign policy” given how, “by constitutional allocation of powers and long-standing practice, the President is relatively dominant in foreign affairs [18].” In this context, if the executive were to challenge the constitutionality of the statute, it could have a credible case.

The Supreme Court’s holding in U.S. v. Curtiss-Wright (1936) is key to such a claim. As reasoned by the Court, upon independence, the power of sovereignty sprung from the Crown to the colonies; first to the Articles of Confederation, then to the federal government after constitutional ratification [19]. The result: “the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution;” rather, the powers “to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality [20].” And within this “vast external realm” of foreign affairs, “the President alone has the power to speak or listen as a representative of the nation [21].” The Court further maintained that it was “important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations,” one which “does not require as a basis for its exercise an act of Congress [22].” The President, therefore, could argue that the basis for his foreign affairs authority, as implied by Curtiss-Wright, is an inherent power that Congress may not intrude upon in relation to the mandate of arms sales to a foreign sovereign.

The Court also proclaimed that “congressional legislation… must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved [23].” Consistent with this interpretation, Louis Koenig argues that, “When President George Washington issued his proclamation of neutrality following the outbreak of war, early in 1793, between Britain and France,” Treasury Secretary Alexander Hamilton “contended that the President could take this step, for which the Constitution provided no explicit guidance, since it could be inferred from the President’s general grant of powers that direction of foreign policy is inherently an ‘executive’ function [24].” Hamilton thus believed that the President possesses all powers relevant to the field of international affairs [25], meaning that the executive may need no Congressional authorization for action in this field. Echoing Hamilton’s view, in Curtiss-Wright, the Court reasoned that “when the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President’s action or, indeed, whether he shall act at all” is a matter of the President’s discretion [26].

Applying these concepts to the TRA, one finds an inconsistency potentially worthy of constitutional challenge. If foreign affairs are an inherent executive function springing from sovereignty, how can Congress tell the President that the U.S. will provide weapons to a foreign entity like Taiwan? The use of the words “the United States will make available” is an instructive phrase, one that expressly tells the executive that it will have to provide weapons to Taiwan, a foreign people [27]. This mandate to the executive contradicts the Court’s ruling in Curtiss-Wright and historical pattern and practice.

As stated by John Yoo, “executive power was understood at the time of the Constitution’s framing to include the war, treaty, and other general foreign affairs powers [28].” Moreover, Yoo asserts that “the conduct and control of foreign policy as inherently ‘executive’ in nature due to practice and function” was understood from the early years of the Republic, meaning “Presidents from the very beginning… have exercised a general foreign affairs power [29].”

Consistent with this view, Thomas Jefferson declared that the “‘transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the senate’” [30].’” In this light, because the decision to sell arms to a foreign entity is significant in terms of its potential effects in a military sense––and by extension a national security sense––as well as in the impact such a sale will have on the foreign relations between the United States and the PRC [31], these statements suggest that the act of deciding when––and to whom––to provide arms to abroad is executive in nature. This implies that the TRA’s arms sales provision could be unconstitutional: it is not up to Congress to direct the conduct of U.S. national security and foreign policy in relation to the Taiwan Strait but to the President, and any statute stating otherwise would be at variance with a unitary executive role.

To be sure, just because the President’s foreign affairs authority is broad does not necessarily mean it is absolute. Article I, Section 8, of the Constitution vests the Congress with the power “to regulate Commerce with foreign Nations [32].” Because U.S. arms sales are technically commerce, the Senate must approve these sales [33]. Still, as outlined by Curtiss-Wright and Hamilton, the fast-paced dynamics of global affairs mean that the Congress will not be able to manage them as quickly or effectively as the President; and as a consequence, as further noted in Curtiss-Wright, most U.S. statutes dealing with foreign affairs “leave the exercise of the power to his [the President’s] unrestricted judgment or provide a standard far more general than that which has always been considered requisite with regard to domestic affairs [34].” This would suggest that foreign affairs legislation like the TRA would generally require the inclusion of broader delegations of discretionary power to the executive on Congress’s behalf, something the TRA does not expressly do.

Yet, as highlighted in Zivotofsky, Curtiss-Wright “does not support a broader definition of the executive’s power over foreign relations that would permit the President alone to determine the whole content of the Nation’s foreign policy,” for the “executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue [35].” These checks would include the Senate’s expressed power of approval of arms sales. Further complicating a potential executive challenge of this TRA provision is also the fact that, when speaking of the TRA, we are not dealing with a treaty but with domestic legislation. By definition, because the United States does not recognize Taiwan as a sovereign nation, the TRA technically falls under the purview of domestic law [36], its impacts on U.S. foreign relations notwithstanding. Consequently, Curtiss-Wright’s provision that high delegations of discretionary power to the executive on foreign affairs matters are justified may not necessarily apply [37].

Of course the practical impact arms sales to a foreign entity––recognized or not––still make the TRA a piece of foreign affairs legislation, but not a treaty [38], so usual executive interpretative power also does not technically apply [39]. Perhaps this explains why the act gives both the executive and the legislature joint discretion when determining “the nature and quantity” of arms that are to be sold to Taiwan; in recognition of the TRA’s impact on both domestic and international affairs, both the Congress and the executive play a role [40].

Practically speaking, however, TRA still endows the executive with much discretion by virtue of its qualification that the arms packages will be made “in accordance with procedures established by law” in Subsection 3, Part B [41]. As Steven Goldstein and Randall Schriver affirm, this refers to the Arms Export Control Act, weakening “Congressional influence by putting it in the passive position of approving or rejecting” sales [42]. Consistent with this interpretation, Richard Bush further highlights that because the act “requires that the Executive Branch inform Congress of arms sales very late in the process,” Congress was effectively “taking itself out of that process, and giving the executive branch substantial discretion regarding” Taiwan’s arms deliveries [43].

As result, though an executive legal challenge to Part A of Subsection 3 will have good grounds to stand on given long standing pattern and practice in relation to the executive’s power over foreign affairs, Congress’s Article I powers, coupled with the de facto discretionary power under Part B of Subsection 3, means that such a challenge’s likelihood of success is uncertain.

A Political Foreign Affairs Constitution

Constitutional analyses notwithstanding, the TRA is unlikely to be challenged by the executive. This is because of the political nature of constitutional questions pertaining to foreign affairs, specifically regarding US-Taiwan relations. Indeed, the TRA embodies the idea that the Constitution’s foreign affairs powers are designed to foster political competition between the two branches, a dynamic that has produced a modus vivendi between the executive and the legislature since TRA’s passage that is likely to persist.

As stated by Richard Pious, the “Constitution is a power base for government officials,” so “construing the Constitution is a political act [44].” Pious thereby built on Edward Corwin’s notion that the Constitution’s foreign affairs powers were “‘an invitation to struggle’ for control over the conduct of foreign affairs” between the legislature and the executive, albeit with the latter accumulating greater authority over time due to pattern and practice [45]. Consistent with Pious and Corwin’s interpretation, Yoo maintains that the President is “empowered to set foreign policy” and “to communicate with foreign nations,” but the “executive has no immediate right to funds necessary to carry out his policies [46].” The result is an arrangement that leaves “the precise boundaries of the war and treaty [foreign affairs] powers unfixed and subject, in each case, to the exercise of each branch’s constitutional powers [47].” The executive sets events in motion, but the Congress can rein it in through the power of the purse and domestic legislation with an impact on foreign affairs. This is what Yoo deems as the “gray area in which the president and Congress could either cooperate in adopting a common foreign policy” or else “struggle to achieve conflicting goals [48].” Political conflict, then, guides foreign policy.

In its Zivotofsky decision, the Court appears to have validated this idea. If the “Congress disagrees with the President’s recognition policy, there may be consequences,” as recognition alone is hollow without legislative action, like “the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties [49].” Accordingly, the Court stressed that, in practice, “the President’s recognition” was just “one part of a political process [50],” one enabling legislative ambition to counteract executive ambition.

The TRA embodies such a political dynamic, both in terms of its passage and impact. As noted by Lung-chu Chen, because Carter required domestic legislation to govern U.S. ties with Taiwan after derecognition, through the TRA Congress reminded “the White House and the American public that the Constitution with its checks and balances does not give absolute authority to any one branch [51].” The result was a bill that maintained enough of a commitment to Taiwan to satisfy Congress’s concerns of executive abandonment [52], with statutes signaling a political intent of congressional supervision of Taiwan policy so much as they represented legislative directives. The TRA, in other words, is a statement of political commitment on behalf of the legislature to oversee US-Taiwan relations. As concluded by Jacques deLisle, the TRA’s provisions “signal relatively strong congressional intent to monitor and constrain the executive branch on Taiwan policy,” signals that Carter, in light of the post-Vietnam era of congressional assertiveness on foreign affairs, could not afford to ignore [53].

Today a similar principle holds concerning Taiwan, especially given Taipei’s increased importance for U.S. national security [54]. As Richard Bush further contends, the TRA continues to express a “strong political commitment to Taiwan’s freedom,” and to American hostility towards PRC aggression against Taipei, one which signals an inter-branch American commitment to the defense of Taiwan [55]. Bush thus deems the above sections of the TRA as “statements of political commitment” aimed at signaling a broad American stake regarding the importance of Taiwan for US foreign policy in East Asia, statements not dissimilar to how authorizations for the use of military force (AUMFs) serve as statements of political intent as much as they serve as authorizations for the executive’s war power [56]. In this sense, precisely because Taiwan was important domestically in 1979––and is even more important today––presidents have claimed a “soft” prerogative in relation to the TRA; they may not concede the constitutionality of the act, but they have nevertheless adhered to its provisions [57].

In fact, President Biden acknowledged the TRA as a formal legal commitment during numerous remarks [58]. So any future executive challenge of the TRA would have to account for past treatment of it as a formal commitment, complicating any legal case. Moreover, because such a challenge would raise questions about inter-branch powers, judicial reasoning is unlikely to govern the settlement of the politically sensitive dispute. As underscored by the Supreme Court in Goldwater v. Carter (1979), foreign policy differences between the President and Congress “should, and almost invariably do, turn on political, rather than legal, considerations [59].” And, as indicated in Baker v. Carr (1962), judicial decisions involving foreign relations tend to be political questions, requiring a “discriminating analysis of the particular question posed, in terms of the history of management by the political branches,” for judicial assertions to the contrary “risk embarrassment of our government abroad [60].”

Under these circumstances, for the Court to decide on an issue with ramifications on U.S. policy regarding an important geopolitical rival such as the PRC [61] would risk serious international embarrassment, while the mere act of challenging the TRA would signal that Washington’s commitment to Taiwan would be waning, jeopardizing U.S. credibility abroad. Challenging the TRA, ergo, would as be as politically difficult as it would be dangerous for Washington’s deterrence posture in the Indo-Pacific region; doing so would upend the modus vivendi established since the TRA’s passage of joint legislative-executive signaling of Taiwan’s importance for US-PRC relations. As a result, when addressing the constitutional questions the TRA raises, we ought to flip Justice Lewis Powell’s maxim: if the President chooses not to confront Congress, it is not a Court’s task to do so.

(*Carter’s policy, and that of the U.S. ever since, has remained consistent with Congress’s language. This reality, alongside the political dynamics mentioned below, may explain why presidents have not challenged this language.)

Bibliography

[1] James Earl Carter, “Speech Establishing Relations with the PRC,” White House Address, December 15, 1978. U.S. National Archives.

[2] Ibid.

[3] Michael J. Green and Bonnie S. Glaser, “What Is the U.S. ‘One China’ Policy, and Why Does it Matter?,” CSIS, September 21, 2022, https://www.csis.org/analysis/what-us-one-china-policy-and-why-does-it-matter.

[4] Taiwan Relations Act, Public Law 968, U.S. Statutes at Large 22 (1979): 3301.

[5] U.S. Constitution, art. 2, sec. 3.

[6] Zivotofsky v. Kerry, 576 U.S. 1 (2015).

[7] Ibid.

[8] Ibid.

[9] United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

[10] Zivotofsky v. Kerry (2015).

[11] Taiwan Relations Act (1979).

[12] Bush, Richard C. 2015.* At Cross Purposes: U.S.-Taiwan Relations since 1942*. Routledge, 153-54.

[13] Zivotofsky v. Kerry (2015).

[14] Taiwan Relations Act (1979).

[15] Taiwan Relations Act (1979).

[16] Bush, At Cross Purposes, 153-54.

[17] Ibid.

[18] deLisle, Jacques. “The Taiwan Relations Act at 40: A Troubled but Durable Legal Framework for U.S. Policy.” Asia Policy 14, no. 4 (2019): 35–42. https://www.jstor.org/stable/26867611, 36-37.

[19] United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Louis William Koenig, James Chieh Hsiung, and King-yuh Chang. 1985. Congress, the Presidency, and the Taiwan Relations Act. Greenwood, 5.

[25] Ibid.

[26] United States v. Curtiss-Wright Export Corp. (1936)

[27] Interestingly, Bush notes that the operative “will” is not binding under traditional statutory operative legal language as opposed to “shall,” but both Presidents and the Congress treat the operative “will” as binding.

[28] Yoo, John. 2008. Powers of War and Peace: The Constitution and Foreign Affairs after 9/11. Chicago: University of Chicago Press. Constitutional scholar John Yoo is a controversial figure due to his involvement in crafting the George W. Bush Administration’s anti-terrorism policies, including Enhanced Interrogation and other tactics widely recognized as torture. My inclusion of his writings rests solely on the rigor of his academic analysis of presidential power and in no way implies endorsement of, or acquiescence to, his actions while serving at the Justice Department under the Bush administration.

[29] Ibid.

[30] Ibid.

[31] For a discussion on how U.S. arms sales have impacted U.S.-PRC relations see Christensen, Thomas J., 2016. The China Challenge: Shaping the Choices of a Rising Power. New York Norton.

[32] U.S. Constitution, art. 1, sec. 8.

[33] See United States Arms Export Control Act (1976), Public Law 90–629.

[34] United States v. Curtiss-Wright Export Corp. (1936)

[35] Zivotofsky v. Kerry (2015).

[36] Lung-Chu Chen. 2016. The U.S.-Taiwan-China Relationship in International Law and Policy. Oxford ; New York, Ny: Oxford University Press

[37] United States v. Curtiss-Wright Export Corp. (1936), Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

[38] Interpretation of a treaty is usually an executive prerogative, but treaty abidance often entails domestic legislation. During the ratification debates, many actually feared the President could become a de facto legislator alongside the senate given these powers, but in light of the need for the house’s consent for funding, these concerns abated.

[39] Koenig, et al,Congress, the Presidency, and the Taiwan Relations Act, 5.

[40] Taiwan Relations Act (1979).

[41] Taiwan Relations Act (1979).

[42] Goldstein, Steven M., and Randall Schriver. “An Uncertain Relationship: The United States, Taiwan and the Taiwan Relations Act.” The China Quarterly, no. 165 (2001): 147–72. http://www.jstor.org/stable/3451110, 150 - 151.

[43] Bush, At Cross Purposes, 158.

[44] Pious, Richard M. “Inherent War and Executive Powers and Prerogative Politics.” *Presidential Studies Quarterly *37, no. 1 (2007): 66–84. http://www.jstor.org/stable/20619295, 67.

[45] Ibid.

[46] Yoo, *Powers of War and Peace. *

[47] Ibid.

[48] Ibid.

[49] Zivotofsky v. Kerry (2015).

[50] Ibid.

[51] Chen. 2016. The U.S.-Taiwan-China Relationship in International Law and Policy, 104.

[52] Goldstein et al, “An Uncertain Relationship,” 152.

[53] deLisle, “The Taiwan Relations Act at 40,” 36-37.

[54] For a good conversation on Taiwan’s strategic importance to the U.S., see Colby, Elbridge A. 2021. Strategy of Denial: American Defense in an Age of Great Power Conflict. S.L.: Yale University Press. See also the (1st) Trump (2018) and Biden (2022) National Security Strategy.

[55] Bush, Richard. “Thoughts on the Taiwan Relations Act.” Brookings Institution. August 21, 2009; Waxman, Matthew. 2019a. “Remembering Eisenhower’s Formosa AUMF.” Default. 2019. https://www.lawfaremedia.org/article/remembering-eisenhowers-formosa-aumf.

[56] Bush, At Cross Purposes, 177.

[57] Pious, “Inherent War and Executive Powers and Prerogative Politics,” 74.

[58] The last time former President Biden publicly signaled an explicit commitment to Taiwan was in September, 2022, though it is worth noting that every time President Biden signaled such a commitment, his foreign policy aides have walked it back, noting that U.S. One China Policy, and policy of Strategic Ambiguity, remains unchanged.

[59] Goldwater v. Carter, 444 U.S. 996 (1979).

[60] Baker v. Carr, 369 U.S. 186 (1962).

[61] President Biden’s Department of Defense deemed China America’s “pacing challenge” and a key threat to U.S. interests given its regional hegemonic ambitions and harmful economic practices.