The Washington PostDemocracy Dies in Darkness

Opinion Congress must untie Biden’s hands on Taiwan

A Chinese People's Liberation Army H-6 bomber is shown flying near Taiwan on Sept. 18, 2020. (Taiwan Ministry of National Defense via AP) (AP)
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Rep. Elaine Luria, a Democrat who represents Virginia’s 2nd Congressional District, is a 20-year Navy veteran and vice chair of the House Armed Services Committee.

Earlier this year, during hearings before the House and Senate, current and former commanders of our forces in Asia indicated that China might take military action against Taiwan in the next six years. Already, tensions across the Strait of Taiwan are rising rapidly with incursions by a record number of Chinese aircraft. In response, the Taiwanese foreign minister said last week that Taiwan is preparing for war. The Biden White House continues to affirm America’s long-standing commitment to a democratic Taiwan as “rock solid.” And we know now that U.S. Special Forces and Marines have been operating as trainers in Taiwan for at least a year.

As members of Congress crafted this year’s defense budget, we took steps to build more ships than we decommission, accelerate the construction of submarines, add additional aircraft and bolster our investment in the Pacific Defense Initiative. The problem is: We must have both the force with which to deter the Chinese and the legal authority to employ it. And right now, we do not.

No amount of rhetoric or military spending will stop the Chinese if Beijing is intent on taking Taiwan by force because of one simple fact: Under the War Powers and Taiwan Relations acts, the president has no legal authority, without the express authorization of Congress, to use military force to defend Taiwan.

The legal limitations on a president’s ability to respond quickly could all but ensure a Chinese fait accompli. Simply put: The president has no legal authority to react in the time necessary to repel a Chinese invasion of Taiwan and deter an all-out war.

According to the Taiwan Relations Act, adopted in 1979, “the President and the Congress shall determine in accordance with constitutional processes, appropriate action by the United States.” But without congressional authorization, the War Powers Act limits the president’s ability to respond only in cases in which an “attack upon the United States, its territories or possessions, or its armed forces” has occurred. Waiting to seek congressional approval until after China acts would likely cause an insurmountable delay in responding to a hostile action by China to seize Taiwan militarily.

Without the ability for the president to react immediately, any delay would prevent the United States from responding, at a lower level of conflict, to repel an invasion and de-escalate the situation. In 2001, President George W. Bush replied to an interview question about whether the United States had an obligation to defend Taiwan, “Yes, we do, and the Chinese must understand that.” At the time, the then-senior senator from Delaware, Joe Biden, excoriated him in The Post: “The president should not cede to Taiwan, much less to China, the ability automatically to draw us into a war across the Taiwan Strait,” Biden wrote.

Times have changed, and Biden is now president, and he should consider the severe limitations on his ability to respond to an invasion of Taiwan.

My Republican colleagues introduced the Taiwan Invasion Prevention Act in February to grant the president the authority to act against an invasion of Taiwan and prevent a fait accompli. This act is a good starting point to address a legal dilemma. The act does not change the “One China” policy in effect for 40 years. It does not require the president to act, but rather grants the commander in chief the necessary authorities for decisions to be made in hours, not the days or months congressional debate may take. That could be the difference between limited conflict and global war. This legislation is a starting point for debate, not a finished product.

If the president’s hands remain legally tied in preventing Chinese military action against Taiwan, then an even larger conflict with China is most certainly assured — resulting in potentially disastrous loss of life on both sides and plunging the global economy into recession for a generation. The time for this debate in Congress is now, not when conflict occurs.

As Woodrow Wilson International Center fellow Michael Kofman writes, “Chinese leaders either believe they will have to fight the United States for Taiwan, or they do not.” It is time to untie the hands of our president so that he can, in fact, carry through with the “rock solid ” commitment to Taiwan if actions by China require it.

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