Asia Pacific

Ignore the Hype: The Taiwan Travel Act is Legally Binding

By Julian Ku
Tuesday, March 20, 2018, 10:00 AM

Last Friday, President Trump signed into law the Taiwan Travel Act, which makes it a U.S. policy to allow high-level meetings between Taiwan and U.S. government officials. News reports about the law have often described it as “non-binding.” This “not legally binding” view is widely shared, including by China’s Ministry of Foreign Affairs. But this reading is not quite right. While there are no legal sanctions for violating the law, this does not mean the legislation lacks any legal force.

In fact, a close reading of the statutory language and a brief review of prior congressional statutes with similar language demonstrates that the law should be treated as a legally binding obligation on the U.S. executive branch that can be enforced through congressional oversight. This means that the law could have a real long-term impact on U.S. Taiwan policy even though its real effect depends on the willingness of Congress and Taiwan advocates to use the Act to pressure U.S. government decision-makers. In any event, as I explain below, media reports (and the Chinese government) should stop calling the legislation “legally non-binding.”

Congress sometimes votes for bills that clearly do not have the status of law. For instance, both houses sometimes jointly pass “sense of Congress” “concurrent resolutions” (see here for an example of such a resolution calling for a day of peace at the beginning of each year). Such resolutions are not sent to the president for his signature and do not have the status of federal law. They are not legally binding in any sense of the word.

But the Taiwan Travel Act is not a concurrent resolution: Not only did both houses of Congress pass it, but the president signed it into law on March 16. As such, the legislation is the “supreme law of the land” under Article VI of the U.S. Constitution. Those calling the law non-binding base their reading on the language of the statute, rather than any problems with how it was enacted. So we must focus on whether the language should be read as non-binding.

As I noted in a prior post, the key language is found Section 3(b):

(b) Statement Of Policy.—It should be the policy of the United States to—

(1) allow officials at all levels of the United States Government, including Cabinet-level national security officials, general officers, and other executive branch officials, to travel to Taiwan to meet their Taiwanese counterparts;

(2) allow high-level officials of Taiwan to enter the United States, under conditions which demonstrate appropriate respect for the dignity of such officials, and to meet with officials of the United States, including officials from the Department of State and the Department of Defense and other Cabinet agencies; and

(3) encourage the Taipei Economic and Cultural Representative Office, and any other instrumentality established by Taiwan, to conduct business in the United States, including activities which involve participation by Members of Congress, officials of Federal, State, or local governments of the United States, or any high-level official of Taiwan.

Unlike Section 3(a), which merely expresses a “sense of Congress,” Section 3(b) sets out specific actions, such as allowing meetings and visits by U.S. government and Taiwan government officials. Those who call this language “non-binding,” however, would probably point out that Section 3(b) does not mandate any U.S. government action. Rather, the language merely declares that “it should be the policy of the United States” to take the government action of allowing exchanges of government officials. In this reading, the law simply declares a “policy of the United States” but does not require any action.

But even if the legislation does not do anything more than “declare a policy of the United States,” it is still legally binding because it is the supreme law of the land under the Constitution. In other words, it is still a law and it has now established a policy of the United States that the U.S. government has an obligation to observe.

Such statutory declarations of policy, especially as they carry the combined weight of Congress and the President, can have a significant impact on U.S. foreign policy. Perhaps the most famous example of such a statement is found in the 1998 Iraq Liberation Act, which stated:

It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.

For years afterward, supporters of a more aggressive policy toward Iraq would cite the Iraq Liberation Act as establishing a policy of seeking regime change for Iraq. And indeed, it is fair to say that the regime change in Iraq did become U.S. policy, even though the Iraq Liberation Act did not require any action by the president other than regular reports on his efforts to provide support for Iraqi resistance to Saddam Hussein. Critics of a softer Iraq policy, including then-Sen. Hillary Clinton, would cite the Iraq Liberation Act as a basis for supporting action against Iraq even though the law did not mandate specific actions.

The Iraq example also illustrates how a statutory declaration of policy can influence government action even without an enforcement mechanism. As part of the “supreme law of the land,” members of the U.S. Congress can use the Taiwan Travel Act to demand action by the executive branch on Taiwan contacts. Such demands would be a proper part of their congressional duty to oversee that the executive branch is “faithfully executing” the laws of the United States (including this Act). Other examples of influential statutory declarations of policy include the “Cuban Democracy Act of 1992” (“It should be the policy of the United States ... to seek a peaceful transition to democracy and a resumption of economic growth in Cuba”) and the Taiwan Relations Act of 1979 (it “is the policy of the United States” to, among other things, “provide Taiwan with arms of a defensive character …”).

It is important not to overstate the legal importance of the Act. It does not mandate any specific action by the U.S. government and it imposes no penalties for failing to adhere to its declared policy. But these limitations do not mean, as the media has casually reported, that the law is not legally binding. Like many other important statutory declarations of policy, this Act is a binding legal obligation for U.S. government actors, which Congress can enforce through exercise of its oversight power. Because such declarations reflect the agreement of both houses of Congress and the president, it is hardly surprising that, as the Iraq and Cuba examples should remind us, such statutory declarations of policy often prevail as actual U.S. foreign policy. We can and should expect the Taiwan Travel Act to shape U.S. Taiwan policy in the near and long term.