A House Democrat is pushing a measure that does not seem democratic. It would let the president bypass Congress’s constitutional authority and fight China at will.
Its foremost advocate is Rep. Elaine Luria, vice-chairman of the House Armed Services Committee, who has represented Virginia’s 2nd district (Virginia Beach area) since 2019. She retired as a naval commander in 2017 after 20 years in the Navy. Presumably her training emphasized forceful, not peaceful, solutions to international problems.
We solved the problems of Korea, Vietnam, Afghanistan, and Iraq neatly, didn’t we? It was easy getting in – presidents, rather than the unwieldy Congress, made the decisions to commence firing. It took between three and 20 years to get out, leaving millions dead and countries in ruin.
Those nations were all smaller than ours. So were all other presidential foes: Grenada, Panama, Somalia, Yugoslavia, Libya, etc. China is the world’s most populous country at 1.4 billion souls, over four times our population. And it has hundreds – some say thousands – of nuclear warheads.
Notwithstanding China’s Communist government, America shows no objection to doing commercial business with the "People’s Republic." Is there any humane alternative to reaching a peaceful political accommodation with it, as our treaties require?
China claims Taiwan as a province. Taiwan wants self-rule. The issue can be negotiated, mediated, arbitrated, compromised, argued in the United Nations, or amicably settled some other way.
Rep. Luria wrote an op-ed headed "Congress must untie Biden’s hands on Taiwan" in The Washington Post last October. She commended as a basis for legislation the "Taiwan Invasion Prevention Act," introduced by Republicans. It would grant the president authority to fight China "in hours, not the days or months congressional debate may take."
She twice noted the Biden administration’s "rock solid" commitment to a democratic Taiwan. But that was political rhetoric, not law. She pointed out that U.S. Special Forces and Marines had been training men there for at least a year. (Add provocative cruises of US warships near China. The legality of the training and cruising is dubious.)
Does the US have an obligation to defend Taiwan? "Yes, we do, and the Chinese must understand that," President George W. Bush said in 2001, Then-Senator Biden countered in The Washington Post, "The United States has not been obligated to defend Taiwan since we abrogated the 1954 mutual defense treaty…. Under the Constitution, as well as the provisions of the Taiwan Relations Act, the commitment of US forces for the defense of Taiwan is a matter the president should bring to the American people and Congress."
"Times have changed," Luria wrote, failing to explain how current times brightened the prospect of war with China.
Constitution and peace in peril
"The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it," James Madison wrote Thomas Jefferson. "It has accordingly with studied care vested the question of war to the legislature."
Kings often declared war merely for personal reasons, like "thirst for military glory, revenge for personal affronts, ambition …," John Jay wrote in The Federalist, 4.
So in an attempt to minimize wars, the Constitution’s framers permitted Congress alone "to declare war" (i.e. to initiate it), in Article I, Section 8, Paragraph 11.
As James Wilson, a framer, told the Pennsylvania ratifying convention in 1787, "This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large."
Paradoxically, Wilson was the constitutional convention’s leading advocate of a one-man executive, as opposed to a collective executive, which some delegates wanted. Putting all executive power – including command of the military – in one person’s hands has enabled each of the fifteen presidents from F. D. Roosevelt to Biden to misuse his power by waging unauthorized warfare. Remember Madison’s comment on executive affinity for war.
The Korean conflict was Harry Truman’s doing. His overt waging of war without congressional approval began the cult of the president as war-maker. Truman, Eisenhower, Kennedy, L. B. Johnson, and Nixon shared responsibility for Indochina bloodshed.
As for Afghanistan and Iraq, President Bush Jr. attacked them after Congress lawlessly handed him its constitutional authority to declare war. The blank check for war issued three days after 9/11/2001 did not even mention Afghanistan. An October 2002 resolution left it up to Bush whether to attack Iraq (a decision he had already made).
An enthusiastic supporter of the Iraq resolution was Joe Biden, then chairman of the Senate Foreign Relations Committee, whose judgment congressional advocates of the Taiwan bill would substitute for their own. As president, Biden has bombed Syria and Iraq without congressional OK.
Thus with the constitutional war power hanging by a thread, Democrat Luria and her GOP colleagues aim at snipping even that, in effect giving the president total dictatorial power over the life and death of millions of people.
The Taiwan bill – is it lawful?
The "Taiwan Invasion Prevention Act" may not guarantee prevention of an invasion but it comes close to guaranteeing war with China. It would let the president use armed force to defend Taiwan against a Chinese attack, seizure of Taiwan’s territory, or a threat to lives of its civilians or military.
Introduced last February in the Senate by Rick Scott (R-FL) and the House of Representatives by Guy Reschenthaler (R-PA), it reposes in committees. The House bill has eight cosponsors, all Republicans; the Senate bill, none.
What does existing law say about delegation of constitutional power?
"The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is vested," Chief Justice Charles Evans Hughes wrote, though approving the delegation of subsidiary rule-making (Schechter Poultry Corporation v. United States, 1935). He forbade delegation of (unspecified) "powers which are strictly and exclusively legislative."
The late Professors Francis D. Wormuth and Edwin B. Firmage, of the University of Utah political science and law faculties respectively, wrote the following in To Chain the Dog of War: The War Power of Congress in History and Law (1986), pp. 198-199:
"… The framers believed that certain political powers must be exercised only by Congress if republican government were to survive. Presumably these could not be delegated to the President. Distrust of the executive, prompted and supported by all history, caused them to vest the power of initiating war exclusively in the Congress. Hamilton, in The Federalist, and supporters of the Constitution, in the state conventions, argued that the system was safe precisely because the President would never be able to exercise this power.
"… The philosophy that governs the delegation of power by Congress precludes legislation authorizing the President to begin a war…. It is impossible for Congress to enact governing standards for launching future war … in a future international environment in which significant details, perhaps even major outlines, change from month to month or even from day to day….
"If Congress authorizes or mandates a war without regard to the entire complex of international relations, it is not determining policy for the future; it is casting dice."
So let’s keep the president’s hands tied – at least his trigger finger.
Paul W. Lovinger, of San Francisco, is a journalist, author, editor, and antiwar activist. (See www.warandlaw.org.)