Taiwan Relations Act and the Swinging Pendulum of Power

By Jiakun (Jack) Zhang

Abstract

This paper examines the shift of control over US-China relations away from the Executive branch towards the Legislative branch during the Carter Administration as signified by the passage of the Taiwan Relations Act of 1979. Conditions of low threat, an absence of domes- tic consensus, a high degree of public opinion in favor of Taiwan, and the bipartisan nature of the issue allowed Congress to be active and pass the TRA with an overwhelming majority. From the perspective of domestic politics, The TRA represented the exercise of Congressional power to influence foreign policy. By holding hearings and framing public opinion, visiting Taiwan over Executive objections, and requiring Executive decisions to be approved by Congress, Congress effectively checked Presidential power and subjected future Presidential decisions to the Congressional power of the purse. From the perspective of foreign policy, by officially establishing diplomatic relations with China and simultaneously establishing unofficial diplomatic relations with Taiwan, the United States was able to maintain the status quo of Taiwan independence and deny China the concessions it desired.

Introduction

In 1979, monumental US policy changes were made in East Asia that would shape the future of the region for decades to come. In January of that year, President Carter officially established diplomatic relations with the People’s Republic of China, bringing about a normalization of US-China relations that began with Nixon’s policy of rapprochement. Only a few months later, Congress would pass the Taiwan Relations Act, which would unofficially establish US-Taiwan diplomatic and security agreements in almost contradictory terms to the normalization agree- ment. The unresolved status of Tai- wan created by the US-China normalization, coupled with the Taiwan Relations Act, left the triangulated relations between the US, China, and Taiwan as a potentially volatile source of international conflict. The events of these short months illustrate what James M. Lindsay describes as a “pendulum of power” swinging between the Legislative and Executive branches of the United States government (Lindsay 2008).

While foreign policy traditionally rests under the control of the Executive, Congress acted to actively challenge the Carter administration’s weak China policy. The process of drafting the Taiwan Relations Act and language of the legislation rep- resent the exercise of Congressional power to influence foreign policy by holding hearings and framing public opinion, visiting Taiwan over Executive objections, requiring Executive decisions be approved by Congress and thereby checking presidential power through oversight, and subjecting future Executive decisions to the Congressional power of the purse. It was able to do so due to the relatively low threat level, the relatively high degree of public opinion in favor of Taiwan, the lack of domestic consensus within the Executive branch, and the bipartisan nature of the issue.

The Decline of Executive Power Relative to Congressional Power

The Nixon administration initiated a process of giving the Executive branch exclusive control of rapprochement with China. Due to both the politically sensitive nature of a strategic realignment with China and its importance to national security, Nixon’s administration acted with great secrecy while slowly preparing the domestic ground for the unveiling of rapprochement (Garrison 2005, 34). The important foreign policy decision to adhere to the One China Policy was made unilaterally through the Shanghai Communiqué without consultation of Congress. The early negotiations and initial trips to China were a secret to all but Nixon and his top aides in order to circumvent Congressional opposition. When he finally announced rapprochement officially, he did so by dramatically framing his China policy as part of “the structure for peace” and using media coverage to boost domestic support (Garrison 2005, 36). The Nixon administration commanded a high degree of power relative to Congress; rapprochement with China proved highly popular with the American public and his China policy received little Legislative op- position. In spite of the success of rapprochement, the subsequent normalization would “directly impinge on Taiwan’s interests (and thus members of the Taiwan lobby and their sympathizers in Congress)” (Garrison 2005, 38). With the death of Mao and Zhou Enlai in China and the Watergate scandal in the United States, normalization was stalled. Nevertheless, diplomatic exchanges with China increased during the Ford administration, even as the Taiwan lobby stepped up its efforts to under- mine normalization.

Thus, the Carter administration inherited the White House in the midst of a complex China policy, under conditions of growing domestic opposition and declining Presidential power, and was only further weakened by Carter’s adoption of an open advisory structure in place of the hierarchical Executive structure of the Nixon administration. Secretary of State Cyrus Vance and National Security Advisor Zbigniew Brzezinski held different policy agendas and beliefs about the possibilities of when and how normalization should be approached (Garrison 2005, 48). Though Carter supported the One China Policy, “normalization was not a top priority for [Carter]. In these circumstances the policy issue was open to differing interpretations. What began as a collegial advisory system devolved into a classic case of bureaucratic politics, as policy discussions turned into a big turf war” (Garrison 2005, 49). Carter’s open advisory system made competing policy priorities much more open than they had been in the Nixon administration, making room for Congressional challenges to Executive power. The Chinese favored Brzezinski over Vance, and Brzezinski was able to push for normalization vigorously by framing his China policy in anti-Soviet terms. When Deng Xiaoping showed interest in cutting a deal with the U.S. over Taiwan, the Carter administration was ready to officially recognize China and announced on December 15, 1978 that the United States and China would begin reciprocal recognition on January 1, 1979. The process of normalization, specifically the unresolved status of Taiwan, would subsequently allow the exertion of Congressional power in foreign policy with the passage of the Taiwan Relations Act of 1979. It would be Congressional rather than Presidential power that would define US-China relations for years to come.

The Expansion of Congressional Powers

In the aftermath of the Normalization Communiqué, Congress effectively outmaneuvered the President to wrest control of US-Taiwan- China relations from the Executive and set the tone for these relations for decades to come. Congress had already begun to actively exercise its power before Carter took office. The amendment to the International Security Assistance Authorization Act of 1978 represents a clear ex- ample of the use of Congressional oversight to check Presidential power by requiring the President to seek “prior consultation” on “any pro- posed policy changes affecting the continuation in force” of the 1954 Mutual Defense Treaty with Taiwan (Javits 1981, 55). Congress attempted to limit the ability of the President to unilaterally negotiate any agreements with the Chinese government over the fate of Taiwan. Aware of the potential for domestic challenge to his China policy, Brzezinski advised Carter to emulate Nixon and negotiate secretly and decisively with China in 1978 in a sudden push for normalization (Garrison 2005, 59). Their announcement of normalization took the public and Congress by surprise.

Unfortunately for Carter, the announcement for normalization did not inspire the same degree of popularity as Nixon’s dramatic visit to China, and in fact his secret negotiations were perceived as an act of cowardice by the American pub- lic. Carter, wanting to adhere to the terms negotiated with China while responding to domestic criticism that he was abandoning Taiwan, introduced the Taiwan Enabling Act, which sought to create informal exchange structures with Taiwan but made no provisions for future security arrangements (Garrison 2005, 59). Carter wanted simply to reassure Congress that China would not be given a free hand to attack Taiwan in the foreseeable future. Thus he was initially happy to allow Congress to strengthen his proposed bill, feeling that China would have fewer objections if the Legislative Branch rather than the Executive Branch dealt with U.S. security relations with Taiwan. Congress used this opportunity to project its power in this important foreign policy matter, and subsequently held hearings that gave a wide range of China specialists, businessmen, military officers, and government representatives opportunities to criticize and amend the bill. These hearings allowed Congress to frame public opinion to favor the Legislative rather than the Executive agenda. Congress effectively made the bill its own, changing its name to the Taiwan Relations Act (TRA) and significantly strengthen- ing US relations with Taiwan, ignoring Executive worries that China may be angered by elements of the bill that appeared to contradict the agreement originally negotiated. It also extended direct support by visit- ing Taiwan over the objections of the State Department (Tucker 1994, 153). However, even more effective than this gesture of defiance towards Executive authority, Congress put its power of legislation to use in the pas- sage of the TRA to check the power of the Executive Branch. The operative words they used were clear and contradicted the thrust of the Executive branch’s draft (Bush 2004, 153). Congress established the American Institute of Taiwan (AIT) and created oversight for AIT’s operations. The TRA set forth a security policy that essentially renewed the 1954 Mutual Defense Treaty of Taiwan by allowing the US to maintain capacity to “resist any resort to force or other forms of coercion that would jeopardize the security, or the social or economic system, of the people of Tai- wan” and “directed” the President to report to Congress “promptly” if such a threat was to arise (Bush 2004, 154). Furthermore, it establishes that Congress—not the President—would “in accordance with constitutional processes” determine the appropriate US response. With regard to arms sales in particular, the TRA represents a clear effort of Congress to assert itself in an area traditionally dominated by the Executive Branch. The TRA made provisions for continued U.S. arms sales to Taiwan by stating that the U.S. would “make available to Taiwan such defense articles and defense services in such a quantity as may be necessary to en- able Taiwan to maintain a sufficient self-defense capability” (Bush 2004, 157). According to Richard C. Bush, the wording of the legislation was originally designed to “constrain the flexibility of the Executive Branch” with many members of Congress de- siring to “state explicitly that the U.S. should supply to Taiwan” and “give Congress a voice in determining Tai- wan’s defensive arms needs earlier in the decision-making process” (Bush 2004, 158). By creating the mechanism for Executive oversight, Congress also made it easier to exercise its power of the purse on future arms sales with Taiwan, further improving its relative power to the Executive Branch on this foreign policy issue. With these provisions Congress not only set the tone for US-Taiwan for years to come, but also put the matter in Congressional, rather than Executive, control. As a participant in the Congressional deliberations that led to the Taiwan Relations Act, the late Senator Jacob Javits recalled that the passage of the TRA demonstrated, “the central role of Congress in foreign policy” (Javits 1981, 55).

Why Congress acted – the competitive Congress

The political conditions during Carter’s administration largely favored Legislative action according to the theories of Congressional behavior. President Carter entered office at a time when the pendulum of power described by Lindsay was swinging away from the Executive branch and towards the Legislative. Carter’s decision to normalize relations with China occurred in an era of “competitive congress” that was “both active and assertive in foreign policy and thus quite willing to challenge a president’s lead,” according to Hastedt. As Arthur Schlesinger observed in The Imperial Presidency, the Nixon administration reached the highest degree of Executive power, and with the ruin of the Nixon ad- ministration in Watergate, Congress had begun to reassert its own foreign policy power. The news of President Carter’s decision to diplomatically recognize China hit Congress on December 15 like a bombshell. Congress was shocked that its “efforts to curb the ‘imperial presidency’ and reassert constitutional checks and balances between Legislative and Executive branches, upset during the Korean and Vietnam Wars, had failed” (Tucker 1994, 135). Congress was therefore eager to renew its efforts to check Presidential power, especially in the arena of his China policy.

The vagueness of the Communiqué regarding the form of future U.S.-Taiwan relations allowed room for Congressional influence. The Normalization Communiqué negotiated by the Carter administration definitively established US-China relations. But it was ambiguous regarding the status of Taiwan: though it reaffirmed the One-China Policy established by the Shanghai Communiqué, it also promised that “the American people and the people of Taiwan will maintain commercial, cultural, and other relations without official representation and without government diplomatic relations” (Javits 1981, 55). The late Senator Javits recalled:

Neither on the manner and timing of the decision nor on the substance of the understandings reached had there been effective consultation. Thus, the situation contained the seeds of possible serious differences between the Congress and the Exec- utive, and the possibility of the U.S. government as a whole not being able to arrive at a coherent ultimate position that would deal with all the elements of the problem...It became very clear quickly that although President Carter was serious about maintaining “extensive, close, and friendly relations” with Taiwan, his Administration had given very little thought to the shape and substance of our future relations and to the legal framework necessary to carry it out. For most of us in Congress, therefore, the acceptability of the arrangements worked out with Beijing depended upon the establishment of a viable basis for our future relations with Taipei (Javits 1981, 56).

Reading between the lines of Javits’ statement, it becomes apparent that Congress saw the ambiguity of future relations with Taiwan as an opportunity to reverse some elements of Carter’s agreement with China that ran contrary to Congressional interests.

In accordance to theories of Congressional behavior, several important domestic factors at the time of normalization can be identified as central conditions for the Congressional challenge to the President’s lead on foreign policy. First, public attention was directed at the Taiwan issue by a powerful Taiwan Lobby. When normalization grew increasingly likely, the Nationalist government of Taiwan stepped up its lobbying efforts in the United States. In 1977, for example, the Nationalist government paid for twelve residents from the President’s hometown to tour Taiwan so that they could “re- mind Carter of the friendly people and wealthy ally he was abandoning” (Tucker 1994, 133). These campaigns were effective in elevating American public opinion in favor of Taiwan. A February 1979 poll showed that 60 percent of Americans rated Taiwan favorably, while only 30 percent rated the PRC favorably (Garrison 2005, 62). In a climate of public support for Taiwan, Congress was emboldened to become more involved on this issue. Second, there was a lack of domestic consensus amongst the experts and within the Executive Branch regarding the importance of Taiwan’s security. Brzezinski and his camp were labeled “China Zionists” because they saw China as strategically necessary to balance an increasingly threatening Soviet Union. Vance and his supporters, however, did not see the severity of the Soviet threat and instead considered China an obstacle to improving U.S. relations with the Soviet Union (Garrison 2005, 62). There was also significant domestic disagreement regarding whether the strategic importance of China was worth losing Taiwan as an ally. Finally, no domes- tic consensus could be reached as to the likelihood of mainland invasion of Taiwan in case the U.S. did step aside. In the absence of domestic consensus, normalization with China faced challenges from a Congress that was more attentive to the domestic support for Taiwan than the strategic importance of China.

Third, as there was relatively low threat in the climate of detente with the Soviet Union, normalization with China was not seen as a pressing national security issue. Despite the Soviet activity in the Horn of Africa, the U.S.-Soviet detente would hold for another year. The threat of Soviet aggression would be perceived as low until its Invasion of Afghanistan in December. Thus, in the immediate aftermath of normalization, Carter could not effectively utilize national security to justify his China policy. Finally, the opposition to Carter’s China policy was bipartisan. Though partisanship could have divided Congress on other issues, on this issue it stood unified against the President. Both Democrats and Republicans in Congress were outraged that the President did not seek Congressional approval to abrogate the mutual defense treaty with Taiwan (Garrison 2005, 62). Conservatives especially and some moderates openly criticized the President’s failure to consult with Congress. Barry Goldwater and other conservative Senators even challenged the President in the courts on these grounds but the courts up- held that the President did not need Congressional approval to abrogate the treaty. These four factors spurred Congress to challenge the administration’s agreement with the PRC by passing the Taiwan Relations Act (TRA) on March 13, 1979, with a 90 to 6 Senate vote and a House vote of 345 to 55 (Garrison 2005, 62).

Conclusion

The Congressional response to President Carter’s decision to normalize relations with China through the Taiwan Relations Act of 1979 rep- resented a swing of the pendulum of power away from the Executive towards the Legislative. In the aftermath of the Nixon administration and the expansion of Executive power, Congress responded decisively to the weaknesses of the Carter Administration’s China policy and reasserted its own power in formulating foreign policy. Conditions of low threat, an absence of domestic consensus, a high degree of public opinion in favor of Taiwan, and the bipartisan nature of the issue allowed Congress to be active and pass the TRA with an overwhelming majority. The TRA represented the exercise of Congressional power to influence foreign policy. By holding hearings and framing public opinion, visiting Taiwan over Executive objections, and requiring Executive decisions to be approved by Congress, Congress effectively checked Presidential power and subjected future Presidential decisions to the Congressional power of the purse. The conditions under which Congress acted, as well as the actions it took, are all in line with the theory of the competitive congress established by Hastedt (Hastedt 2009).

As Roy noted, “the TRA makes it possible for [US] agreements with Taiwan, which had been agreements with a sovereign government, to continue in effect even though we no longer recognized Taiwan as a sovereign government. The TRA also provided for a special US office in Taiwan that would be staffed by US government employees who had officially left their government positions. The American Institute in Taiwan is thus an unofficial organization, even though it is, in effect, a surrogate embassy there. This agreement was a subterfuge, but it is an open subterfuge designed to be consistent with the principle of unofficially dealing with Taiwan” (Stapleton 2003, 113). A new era of East Asian security, marked by the triangulated relation- ship between the United States, China, and Taiwan, began in 1978. By officially establishing diplomatic relations with China and simultaneously establishing unofficial diplomatic relations with Taiwan, the United States was able to maintain the status quo of Taiwan independence and deny China the concessions it desired. However, as an unpleasant consequence of the US “subterfuge”, tension and mistrust remain between the US and China over Taiwan to this day.

References

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