The Lawfare Podcast10 Okt 2023

Taiwan, War Powers, and Constitutional Crisis with Scott R. Anderson

For decades, the United States has maintained a policy of “strategic ambiguity” toward Taiwan and China. But in recent years, this uneasy status quo has begun to falter, as the Biden administration doubles down on its commitment to Taiwan’s autonomy and China increases provocative military maneuvers aimed at signaling its willingness to use force to assert its claim of sovereignty over the island. Despite the devastation that war between the U.S. and China would surely bring, the two seem to be inching ever closer to conflict.

At the same time, many policy assessments seem to assume that the president has the domestic legal authority to defend Taiwan in the event of a sudden and unexpected attack by China. But in a recent article for the Virginia Journal of International Law called “Taiwan, War Powers, and Constitutional Crisis,” Lawfare Senior Editor Scott R. Anderson argues that history paints a much more complicated picture. As Scott writes, “An international crisis over Taiwan could thus … trigger a constitutional crisis at home—one that threatens the legitimacy of the president’s response and risks undermining popular and congressional support for what is certain to be a difficult war to come.”

Lawfare Managing Editor Tyler McBrien sat down with Scott to discuss his article. They walked through the various legislation, legal opinions, and communiques through successive presidential administrations that have defined the U.S. position towards Taiwan to the present day. They also discussed how tensions between the executive and legislative branches might play out in the event of an attack on Taiwan, as well as how the government as a whole might avoid them.

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