The Authority to Defend Taiwan

Representative Elaine Luria stirred the turgid waters of national security twitter this morning by claiming that Joe Biden lacks affirmative authority for defending Taiwan from Chinese attack, and that therefore Congress needs to give prior authorization. I have thoughts:

There’s an argument here that Luria’s op-ed takes the War Powers Resolution more seriously than any Presidential administration has ever done.  The text of the WPR is ambiguous, and while most authorities tend to favor the interpretation that a President could intervene in Taiwan without prior authorization, anti-war progressives have argued the contrary case enthusiastically. There’s further an argument to be made that progressives could embrace this and claim that all military activity not clearly covered by an alliance agreement needs to be pre-approved by Congress.

But Luria has laid a trap for advocates of restraint. Accepting a categorical interpretation of the WPR arguably creates the need for more aggressive legal action in preparation for conflict against China. If the President (as Luria claims) cannot legally intervene on Taiwan’s behalf even in case of invasion, Luria’s case for pre-approving intervention becomes stronger. This puts restrainers in a bind, because not many of them favor enraging Beijing by authorizing the defense of Taiwan. Moreover, it’s not clear restrainers would really be getting anything in return, because regardless of what Representative Luria thinks the President would likely continue to interpret the WPR as allowing a sixty-day window no matter what, and the courts are loathe to restrict Presidential power over military policy.

Basically, Luria cuts at the ambiguity in the WPR as part of an effort to antagonize Beijing. But she’s certainly aware that Restrainers will struggle with the argument a bit because of how it adopts the most progressive interpretation of the WPR.