It's a Good Idea, but Congress Can’t Require the U.S. Navy to Make Port Calls in Taiwan

The Senate Armed Services Committee voted on Wednesday to send the National Defense Authorization Act (NDAA) for 2018 to the full Senate. The bill contains a provision “re-establishing regular ports of call by the U.S. Navy at Kaohsiung, or any other suitable ports in Taiwan and permits U.S. Pacific Command to receive ports of call by Taiwan.” If carried out, this provision would represent a dramatic shift in U.S. Taiwan policy. I haven’t reviewed the actual text of the bill (only a summary is available), but I think it is worth making three important legal observations.

First, no matter what the actual language of the bill states, Congress cannot, by itself, “re-establish regular ports of call” by U.S. Navy ships in Taiwan. As a constitutional matter, the power to direct and deploy U.S military assets is held exclusively by the President under his Article II Commander-in-Chief powers. This point is not entirely without controversy, but certainly under the classic understanding of the president’s command over land and naval forces in peacetime and wartime, well encapsulated by then-Attorney General Robert Jackson’s 1941 formulation, Congress cannot order specific deployments—although it could direct funds to incentivize the President to order such “ports of call” visits. President Trump would be acting well within his authority if he refused to follow such congressional directions. So while I think this provision is important and worth enacting as a signal to China and Taiwan, no one should assume that it will actually require such U.S. Navy visits to Taiwan. By the same token, there is no domestic legal restriction on ordering such port calls either. This is still a decision left solely in the hands of President Trump.

Second, China’s Ministry of Foreign Affairs has already criticized this provision for “severely violat[ing] the three joint communiqués between China and the US, and constitut[ing] interference in China's domestic affairs.” The Chinese often refer to the Three Communiqués between the U.S. and China as binding international agreements. But as I have argued in an earlier post, the Three Communiqués are not legally binding. And even if they were binding, the U.S. did not commit to cutting off direct military contact with Taiwan. It is true that in paragraph 12 of the first Joint Communiqué (1972), the U.S. “it affirm[ed] the ultimate objective of the withdrawal of all U.S. forces and military installations from Taiwan.” But making a “port call” in Taiwan does not constitute stationing U.S. Navy ships there. To be sure, the Chinese could rightly complain that this amounts to functionally the same thing, especially if the “port calls” are “regular.” But legally, the U.S. is on safe ground here.

Third, it is important to note that China’s stated policy in unification with Taiwan, codified in its 2005 Anti-Secession Law, might consider Taiwan’s agreement to host such U.S. Navy visits as a justification for military action against the island. Article 8 warns that China would use “nonpeaceful means” if “secessionist forces” cause the fact of “Taiwan’s secession from China….” Accepting regular port calls by a foreign nation’s navy is by itself unlikely to cause Taiwan’s secession.

Still, it is not hard to see why the Chinese would consider port calls in Taiwan a pretty big shift in U.S. Taiwan policy. No such port calls have been made since the U.S. ended relations with Taiwan in 1979, so such visits would break with 38 years of U.S. policy. It would be seen as a sign that the U.S. is ramping up support for Taiwan and altering its understanding of the “One China” policy. It is also hard to overstate the psychological boost Taiwan (especially its independence-leaning government) would receive from hosting a U.S. aircraft carrier visiting its port.

Of course, this last point is one of several very good reasons for adopting the port-calls-in-Taiwan policy. This bill, along with other efforts such as advocating for the latest Taiwan arms sales and pushing the Taiwan Travel Act (which encourages high-level official U.S. government visits to Taiwan), show again how Congress can lead on U.S. foreign policy, or at least on its Taiwan policy. That said, Congress’s powers are still limited.

Ultimately, the administration must decide what it wants to do about U.S. Taiwan policy. It could, however, do a lot worse than simply following Congress’s lead.