International Conflict and War ♦ Essay 64 Va. J. Int’l L. 173 (2023)

Taiwan, War Powers, and Constitutional Crisis

SCOTT R. ANDERSON

Many policy assessments assume that the president would have the domestic legal authority necessary to respond with immediate military force in the event that China were to pursue an unexpected attack on Taiwan. But this view is in some tension with history. Prior presidents have, at times, expressed serious doubts as to whether they can go to war with China without Congress. And while Congress once authorized the defense of Taiwan, it has spent the past several decades deliberately withholding that authorization as part of the broader U.S. policy of strategic ambiguity. Today’s executive branch has never conceded that the president lacks the inherent constitutional authority to use military force in such circumstances, but it has acknowledged—first internally, now publicly—that the Constitution’s Declare War Clause raises serious questions about his ability to enter the United States into major armed conflicts without Congress. Thus even the executive branch is likely to view the question of whether the president alone has the constitutional authority to intervene in the defense of Taiwan as an extremely difficult one.

This Essay traces these two parallel histories—the evolution of U.S. security commitments to Taiwan on the one hand, and executive branch views on the Declare War Claus on the other—to examine how the United States has found itself in this predicament and what might be done about it. In doing so, it contributes to war powers scholarship by tracing the contemporary “anticipated nature, scope, and duration” test’s historical antecedents in earlier executive branch constitutional reasoning relating to the Declare War Clause and provides context on how these reservations might co-exist with broad executive branch claims of presidential authority. Finally, it closes by examining how executive branch lawyers might try to legally justify an effort to defend Taiwan from a sudden and unexpected attack by China on the president’s inherent constitutional authority in light of what experts expect that conflict will look like—and, finding these options wanting, considers what steps Congress and the executive branch might take to ensure Congress has the opportunity to authorize a military response on a timeline that better aligns with the strategic requirements that defending Taiwan is likely to entail.