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Going to War Over Taiwan: Who Decides?
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Going to War Over Taiwan: Who Decides?

Even if Biden could justify U.S. intervention without congressional approval, it’s politically important to have the legislative branch on board.

President Joe Biden speaks in Baltimore on March 1, 2023. (Photo by Drew Angerer/Getty Images)

Will China invade Taiwan? If so, when? 

These questions are now routinely batted around in Washington. Not too long ago such a scenario was routinely dismissed as improbable. But CIA Director William Burns told Congress in early February that Chinese President Xi Jinping has ordered his military to be ready to conduct an invasion by 2027, and Burns warns that Xi’s ambitions to unite the island democracy with China should not be underestimated. While Biden administration officials are often quick to reassure us by arguing that Xi is unlikely to act sooner or that he must know the high cost for doing so, the fact is, U.S. intelligence does not have the most sterling record on predicting the behavior of ambitious autocrats. 

Authoritarian leaders habitually believe they have taken the measure of a “soft” and “weak-willed” U.S., overestimate their own military’s capabilities, and act in ways which—in hindsight—appear less than rational. As U.S. Army Pacific Commander Gen. Charles Flynn has noted, Chinese forces “are rehearsing, they are practicing, they are experimenting, and they are preparing those forces for something.” And a leader doesn’t “build up that kind of arsenal just to defend and protect.” 

If you are sitting in Taipei and see Chinese naval and air assets aggressively and regularly directed your way, confidence about how Xi will act is hardly firm. With a better than even chance that Taiwan’s Democratic Progressive Party—which strongly rejects any notion of unification with the mainland—might win Taiwan’s presidential election next year, Xi might believe that the time is right to “intervene” on behalf of “Chinese patriots.” Moreover, with Taiwan, America, and allies attempting to beef up defenses in the region, Xi might well believe it is better to act sooner than later and before the window of opportunity to do so possibly closes. 

Not knowing when or even whether Xi would order an invasion of Taiwan, President Biden has bolstered deterrence by approving more arms sales to Taiwan, upping Pentagon training of the Taiwanese military, and—most importantly, in contrast to his predecessors—repeatedly stated that he would order the U.S. military to defend Taiwan if it was attacked by China. 

In the past, to discourage Taiwan from causing a crisis by asserting its independence from “one China,” administrations have been ambiguous about whether they would come to the rescue. But, with the massive growth in Chinese military capabilities, the idea that the much smaller island state, with a much smaller military, would bring on such a crisis has largely faded away. Now the issue is how best to deter China, and President Biden has apparently decided that clarity here is the best policy.

Because of Taiwan’s geographic importance, sitting in the middle of one of the world’s busiest trade routes and directly between allies Japan and the Philippines; because of Taiwan’s importance as a producer of computer chips; and because of Taiwan’s example as a vibrant and successful Chinese liberal democracy, the president’s statements on defending Taiwan makes strategic sense. Indeed, they are probably overdue. 

But what is the legal or constitutional authority to put American forces in harm’s way and involve the U.S. in a conflict with the world’s second most powerful conventional military (which also happens to have a growing arsenal of nuclear weapons)?

Unlike the member states of NATO, Japan, the Philippines and South Korea, the United States has no mutual security treaty with Taiwan. It once did, of course, from 1955 until 1980. However, as part of the decision to formally recognize the People’s Republic of China and end diplomatic ties with the Republic of China (Taiwan), the Carter administration terminated the pact as of New Year’s Day, 1980. 

Presidents have long claimed the authority to send the U.S. military into zones of conflict without a treaty or absent a congressional authorization. For example, President Reagan sent American forces into Beirut as a part of a multinational peacekeeping force in 1982—hundreds of Marines died in a suicide bombing of their barracks. President Clinton employed American airpower, with NATO, to compel Yugoslavian President Slobodan Milosevic to end his war against the ethnic Albanian population in Kosovo. In both cases, the White House argued the president had the authority under the Constitution to act in pursuit of U.S. interests without congressional sanction. And, more recently, after President Obama’s 2011 decision to involve the U.S. in the campaign to prevent the potential slaughter of Libyan citizens from Muammar Gaddafi’s forces, the Justice Department’s Office of Legal Counsel argued that the president’s decision was legitimate in that it was in service of “sufficiently important national interests”—as defined by the president.

Presidents today can claim, and the Justice Department currently affirms, a broad license to hunt—in John Quincy Adams’ famous phrase—monsters abroad. 

Nor would a president or his lawyers have to reach very far to make the argument that defending Taiwan was of sufficient national interest to the United States to intervene militarily. In addition to the arguments about the strategic importance of Taiwan listed above, the Taiwan Relations Act (1979) states that the “peace and stability” around Taiwan is “in the political, security, and economic interests of the United States.” Moreover, that “the future of Taiwan will be determined by peaceful means” and the U.S. will “maintain the capacity … to resist any resort to force … that would jeopardize the security … of the people of Taiwan.” If not explicitly a security guarantee, the statute leans as far forward in that direction as it can—especially given that the U.S. doesn’t diplomatically recognize Taiwan. 

But is this rationale sufficient when it comes to what might well become a massive military conflict that could even include the use of nuclear weapons? It’s undoubtedly the case that presidents have employed the military in scores of engagements without explicit congressional authorization. Too often overlooked, however, is that the vast majority were justified as measures of self-defense, be it defending American rights under international law, citizens, property, or our near-abroad. And, in many of these cases, there was usually a treaty (albeit with terms often dictated by Washington) undergirding the use of troops. From the government’s earliest days to now, the president’s authority to defend the United States has never been simply to fend off armed attacks against the U.S. itself. And, as America’s role in the world has expanded, so too has the notion of what defending the country means. 

Nonetheless, Washington has seen fit to ground most of its major and potential military commitments in formal treaties or congressional resolutions. Even Truman’s “police action” in the Korean War was given the color of law under the obligation from the recently adopted U.N. Charter to “maintain or restore international peace and security” when authorized to do so by a Security Council resolution. Since Korea, there has been no major, sustained conflict (Vietnam, the first Gulf War, the 9/11 wars, the second Gulf War) involving American forces that has not had congressional authorization. Contrary to conventional wisdom about the “imperial presidency,” presidents have been more circumspect in acting unilaterally when it comes to committing U.S. troops to potentially prolonged, large-scale combat. In that regard, they have stayed within the constitutional lane that mandated Congress have the final say on moving the nation from a state of peace to a state of war when the United States or its people, or its rights, have not been attacked or put in jeopardy. And, in fact, even the 2011 OLC opinion attempts to limit its case for presidential discretion by arguing that, at least, in the case of Libya, the president was not fighting a “war” but only engaged in a conflict of “limited” hostilities.  

In a number of these cases, of course, presidents argued that they didn’t need congressional authorization to act. Yet the fact that they wound up accepting congressional approval tells you that, in their bones, presidents know it is politically important to have Congress onboard, even if it cannot guarantee continued congressional support if the conflict turns sour. 

Doubtless, administration lawyers will tell President Biden or his successor that he doesn’t need the Hill’s okay to help defend Taiwan. As already noted, there is a case to be made for intervening whether or not the Congress has given its approval. However, there are serious potential downsides for not having Congress onboard before missiles start flying. American public opinion is now firmly negative about the PRC, but that does not necessarily entail support for a violent, incredibly costly, and bloody war. It would be a strategic disaster of the first order for a president to rush to Taiwan’s defense and find himself on a limb that members of Congress are threatening to cut off behind him or her. 

Matters are further complicated by the fact that in the event of a Chinese attack, the president will not have time to wait for a congressional authorization if he wants to successfully defend the island. Even if Taiwan’s defenses were greatly expanded, they can hold out only so long in the face of a massive Chinese air, rocket and sea campaign absent an equally significant effort on the part of the U.S. to beat back that invasion. In short, time will be of the essence. 

The Constitution, politics, and military strategy recommend, if not demand, the president seek an authorization to defend Taiwan in advance of any potential conflict. Doing so of course will require expending serious political capital and will certainly cause an uproar from Beijing. On the other hand, the critical benefit of an authorization would be to firmly ground deterrence in U.S. law. A clear commitment to defend Taiwan by the two political branches can’t help but put a needed hitch in the step of Xi’s warmaking calculus and his likely self-affirming view that the U.S. will not actually go to war over Taiwan. Moreover, once law, it should help further kickstart the buildup of America forces in the Asia-Pacific theater—an effort that is only now beginning and is still too slow to meet the deadlines coming. For our own benefit, it’s time to remove any ambiguity about our commitment to help defend Taiwan by not only having a president say so but having the first branch of government affirm it as well.

Gary Schmitt is a resident scholar in strategic studies and American institutions at the American Enterprise Institute.