[This is Phil from last week. I’ve been reading a lot about our President-Elect, Donald J. Trump, and his telephone-adventure with the two Chinas, and I’m a bit confused. I know we buy TVs and gadgets from the one on the mainland, and sell lots of weapons to the other one on Taiwan, but apparently we’re only supposed to talk to the mainland Chinese.  When Mr. Trump took a call from the new president on Taiwan, he committed some sort of major faux pas, or at least that’s what our pundits would have us believe. So why do we arm, yet not acknowledge the existence of a government on Taiwan? Isn’t that a bit illogical? My instincts tell me that lawyers and politicians must be involved somehow, so naturally I asked Larry, our occasional legal consultant, for advice. He knows a thing or two about the situation, and here’s what he said.]

An old[1] teacher of mine once said that “a page of history is worth a volume of logic.”[2] That’s certainly true where mainland China and Taiwan are involved. The history of China was a tangled business in the 20th Century, fascinating and complex.[3] Luckily we don’t have to do a detailed analysis in order to understand the argument between the mainland Chinese and Taiwan. Basically from 1928 through 1949 the two main contending parties for control of China were the Nationalist Chinese, under General Chiang Kai-shek, and the Communist Party of China. Their dispute subsided in the face of the Japanese invasion of World War II, but after the war – the Japanese lost – the warring factions went back to war. In 1949 the Communists overthrew the Nationalists and established the People’s Republic of China [the PRC]. Many of the Nationalists retreated to Taiwan.

The Sino-American Mutual Defense Treaty

While the Nationalists no longer controlled mainland China, we – the U.S. – still had a mutual defense treaty with the old government and, in 1979, President Carter, as a step in a process begun by President Nixon to normalize relations with the PRC, unilaterally terminated that agreement.[4] Powerful forces in the Congress opposed this, and sued, arguing that the treaty had been ratified by the Senate and the President had no authority to dispense with it on his own motion.

Article II, Section 1 of the Constitution provides “[t]he executive Power shall be vested in a President of the United States of America.” Article II, Section 2 says “[h]e [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.…” [5]  So one way to frame the issue is, if the Senate must advise and consent to creating a treaty, must it also do the same to terminate one? Article II doesn’t expressly say that. Or is the President’s executive power so great that he can nullify a treaty on his own?[6]

That’s a fascinating question, one might say an important one involving the separation of powers between Congress and the Executive Branch; and various senators, including Barry Goldwater of Arizona, took it to court. But in 1979 the Supreme Court ducked the issue. The court took jurisdiction of Goldwater’s case; “vacated” the judgment of the appeals court below; and directed the trial court to dismiss the action. In short, the court ordered the suit to go away. There was no majority opinion explaining or justifying the action. The case is Goldwater v. Carter.[7]

There were, however, a series of concurring and dissenting opinions. Justice Marshall concurred in the result but wrote no opinion. Justice Powell said that the matter was not ripe for judicial review.[8] Justices Rehnquist, Burger [the Chief Justice], Stewart, and Stevens said that the basic question in the case was “political” and “therefore nonjusticiable because it involves the authority of the President in the conduct of our country’s foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President.”[9] In short, 6 of the 9 justices voted to get rid of the case, but they didn’t agree on why.[10] Perhaps they just wanted to get that hot potato off their table.[11]

The Taiwan Relations Act

While Goldwater v. Carter didn’t teach us much about diplomacy, Congress followed up with some lessons of its own. Congress passed the Taiwan Relations Act of 1979,[12] a statute I had never heard of until you asked me to look into this, the latest Trump controversy. The statute acknowledges that the United States no longer recognizes Taiwan as a government. Nevertheless:

  • The United States “will make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability.”[13]
  • The absence of such recognition “shall not affect the application of the laws of the United States with respect to Taiwan,” i.e., such laws shall apply in the same manner that they did before recognition was withdrawn.[14]
  • U.S. programs and transactions with respect to Taiwan “shall” be conducted through an independent entity, the “American Institute in Taiwan,” a “nonprofit corporation incorporated under the laws of the District of Columbia,” or a comparable successor.[15]
  • Taiwan shall act with respect to us through an entity or entities established by it for that purpose. “Whenever the [US] is authorized or required … to render or provide to or to receive or accept from Taiwan, any performance, communication, assurance, undertaking, or other action, such action shall … be rendered or provided to, or received or accepted from, an instrumentality established by Taiwan ….”[16]

In short, under existing law our Government and Taiwan’s do business, but through intermediaries. Today the arrangement is thought to be successful, although possibly subject to improvement.[17]

So, let’s go on to the basic question. Did Donald J. Trump violate any law by accepting a phone call from the President of Taiwan? My guess is, probably not.  Donald Trump is, dare I say this? Currently he is not a Government employee. Next month he will be sworn in as President of the United States. But that’s next month. Right now Barrack Obama is our President. Trump is a private citizen, with high expectations but currently no power in the federal bureaucracy.

Well, what if Barrack Obama wanted to disregard the Taiwan Relations Act? Could he do it today? He’s very definitely a part of the government. But Presidents, as we know, have wide latitude in conducting foreign policy. The Supreme Court in 1979 didn’t say much about Taiwan, except to stay out of a nasty argument between some senators and President Carter. But recent cases indicate that there are limits on even our Congress when it tries to interfere legislatively with foreign policy.[18] So who knows what the answer is? Perhaps President Trump, when he takes office, will try to find out.

[1] He taught me a long time ago, so that makes him old; but, he was ancient at the time, so that makes him doubly old.

[2] He was talking about real property law, and quoting Oliver Wendell Holmes. For the source of the quote, see New York Trust Co. v. Eisner, 256 U.S. 345 (1921) (Holmes, Justice). In my view the principle applies to many human endeavors, not just the buying and selling of real estate.

[3] For a brief introduction, take a look at the Wikipedia entry on the Republic of China, at https://en.wikipedia.org/wiki/Republic_of_China_(1912%E2%80%9349)

[4] The full text of the Taiwan Relations Act, as passed in 1979, appears in the U. S. Statutes at Large. See Taiwan Relations Act, Pub. Law 96-8 (April 10, 1979), 93 Stat. 14 – 21. You can retrieve it online from the Government Printing Office, at https://www.gpo.gov/fdsys/pkg/STATUTE-93/pdf/STATUTE-93-Pg14.pdf . There’s no charge. Henceforth this Act will be cited as “Pub. Law 96-8, §__.” See Pub. Law 96-8, §2(a): “The President having terminated governmental relations between the United States and the governing authorities on Taiwan recognized by the United States as the Republic of China prior to January 1, 1979, the Congress finds that the enactment of this Act is necessary ….”

[5] For an authoritative version the United States Constitution, and its Amendments, check out the National Archives. For the Constitution, go to: http://www.archives.gov/exhibits/charters/constitution.html . That’s the version we’ll be citing here. If you want to look at the Amendments, go back to the National Archives, this time to https://www.archives.gov/founding-docs/bill-of-rights  for the first 10 [the “Bill of Rights”]; and to http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html for the rest. You also can start the process by logging in at https://www.archives.gov/founding-docs  . There are other sources as well. You can get a copy of the Constitution from the Government Printing Office, at https://www.gpo.gov/fdsys/pkg/CDOC-110hdoc50/pdf/CDOC-110hdoc50.pdf . Why pay for a copy when you can get one that’s accurate and free?

[6] Need I point out that Wikipedia has opinions about Article 2? They’re published at https://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitution#Section_2:_Presidential_powers .

[7] See Goldwater v. Carter, 446 U.S. 996 (1979). For those of you who have a law school or federal court house in your neighborhood, and access to its law library, you can go and look it up. The official printed, bound version of the case is the best evidence of its contents. “Only the printed bound volumes of the United States Reports contain the final, official opinions of the Supreme Court of the United States. In case of discrepancies between a bound volume and the materials included here–or any other version of the same materials, whether print or electronic, official or unofficial–the printed bound volume controls.” So says the Supreme Court, at https://www.supremecourt.gov/opinions/boundvolumes.aspx . Unfortunately while the Court has many of its more recent decisions digitized and available on its website, the online library does not go back as far as 1979. That being the case, we had to look elsewhere. We found versions of the case available on the Justia web site, https://supreme.justia.com/cases/federal/us/444/996/case.html , and from Harvard Law, https://h2o.law.harvard.edu/cases/983 . On balance, we chose the Harvard version.

[8] See 446 U.S. 996, 997.

[9] See 446 U.S. 996, 1001 – 1002.

[10] Wikipedia has its own view of the case. Check it out at  https://en.wikipedia.org/wiki/Goldwater_v._Carter

[11] If you’re getting interested in our Constitution, and what’s been happening to it, let me suggest a valuable resource I sometimes use myself. Every few years the Library of Congress researches and publishes an annotation to reflect the history and current law [principally Supreme Court decisions] pertaining to the Constitution. The most recent version [of the annotation] is dated this year, and amounts to 2835 pages. See Senate Doc. No. 112-9, 112th Congress, 2nd Session, The Constitution of the United States of America, Analysis and Interpretation (Centennial Edition) (interim, through June 27, 2016). It’s quite impressive and is available to the public for free as a pdf file. You can get it from the Library of Congress, at https://www.congress.gov/constitution-annotated

[12]  That’s Pub. Law 96-8 (April 10, 1979), 93 Stat. 14 – 21. See note 4 for the full citation and explanation of how to access it. If you would like a relatively simple explanation of the Taiwan Relations Act, check out the Wikipedia entry at https://en.wikipedia.org/wiki/Taiwan_Relations_Act . Or you can read this blog.

[13] See Pub. Law 96-8, § 3(a).

[14] See Pub. Law 96-8, § 4(a).

[15] See Pub. Law 96-8, § 6(a).

[16] See Pub. Law 96-8, § 10(a).

[17] See, e.g., Brookings, Bush, Thoughts on the Taiwan Relations Act (April 21, 2009), available at https://www.brookings.edu/opinions/thoughts-on-the-taiwan-relations-act/

[18] See the blog of 2015/07/02, Zivotofsky v. Kerry, available at https://opsrus.wordpress.com/2015/07/02/zivotofsky-v-kerry/