Many advocacy groups in the United States claim that under the following clauses of the Taiwan Relations Act, Taiwan is already fully recognized by the United States as a sovereign and independent nation.
Taiwan Relations Act
22 USC 3303
(a) Application of United States laws generally
The absence of diplomatic relations or recognition shall not affect the application of the laws of the United States with respect to Taiwan, and the laws of the United States shall apply with respect to Taiwan in the manner that the laws of the United States applied with respect to Taiwan prior to January 1, 1979.
(b) Application of United States laws in specific and enumerated areas
The application of subsection (a) of this section shall include, but shall not be limited to, the following:
(1) Whenever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.
(2) Whenever authorized by or pursuant to the laws of the United States to conduct or carry out programs, transactions, or other relations with respect to foreign countries, nations, states, governments, or similar entities, the President or any agency of the United States Government is authorized to conduct and carry out, in accordance with section 3305 of this title, such programs, transactions, and other relations with respect to Taiwan (including, but not limited to, the performance of services for the United States through contracts with commercial entities on Taiwan), in accordance with the applicable laws of the United States.
Is it correct to assert that these clauses actually recognize Taiwan as an independent and sovereign nation? In order to examine the validity of such a claim, it is necessary to overview the division of responsibilities between the different branches of the US federal government.
De-recognition of the ROC on Taiwan
In December 1979, President Carter announced his decision to break diplomatic relations with the Republic of China on Taiwan, and to cancel the ROC-USA Mutual Defense Treaty (MDT). This caused much controversy in the US Congress, with many members saying that the President could not cancel such a treaty without Congressional approval. Senator Goldwater from Arizona filed a suit in the US Supreme Court about the President Carter's cancellation of the MDT.
After careful deliberation, the US Supreme Court denied any authority to judge such matters. In the decision of Goldwater v. Carter (December 13, 1979), Justice Powell filed an opinion which summarized the situation as follows:
This Court has recognized that an issue should not be decided if it is not ripe for judicial review. Prudential considerations persuade me that a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority. Differences between the President and the Congress are commonplace under our system. The differences should, and almost invariably do, turn on political rather than legal considerations. The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Otherwise, we would encourage small groups or even individual Members of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict.
Justice Brennan filed an opinion which summarized the situation in another way:
The constitutional question raised here is prudently answered in narrow terms. Abrogation of the defense treaty with Taiwan was a necessary incident to Executive recognition of the Peking Government, because the defense treaty was predicated upon the now-abandoned view that the Taiwan Government was the only legitimate political authority in China. Our cases firmly establish that the Constitution commits to the President alone the power to recognize, and withdraw recognition from, foreign regimes. That mandate being clear, our judicial inquiry into the treaty rupture can go no further.
Although Goldwater v. Carter shows a debate on the termination of the MDT, there was no review of the Commander in Chief actions for the legal status of Taiwan. Nevertheless, the Supreme Court did confirm that the President has full authority over foreign policy.
The Constitution and the Powers of the President
While the Constitution is silent with respect to treaty withdrawal, the preponderance of writings and opinions on this subject strongly suggests that the Framers intended for the authority to be vested in the President. Article II, Section 1 of the Constitution declares that the "executive power shall be vested in the President." Additionally, Article II, Section 2 makes clear that the President "shall be Commander in Chief," that he shall appoint, with the advice and consent of the Senate, and receive ambassadors, and that he "shall have power, by and with the advice and consent of the Senate, to make treaties."
The treaty clause's location in Article II clearly implies that treaty power is an executive one. The Senate's role on treaties is merely a check on the President's otherwise plenary power -- hence the absence of any mention of treaty-making power among the many powers given to Congress in Article I, Section 8. Hence, treaty withdrawal remains an unenumerated power -- one that must logically fall within the President's general executive power.
A careful reading of the writings of the Framers strongly also confirms that they viewed treaties differently than domestic law, and that, while they desired to put more authority over domestic affairs in the hands of the elected legislative representatives, they believed that the conduct of foreign affairs lay primarily with the President. As Secretary of State Thomas Jefferson observed during the first Washington Administration, "The Constitution has divided the powers of government into three branches [and] has declared that 'the executive powers shall be vested in the president,' submitting only special articles of it to a negative by the Senate." Due to this structure, Jefferson continued, "The transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly."
Supreme Court Rulings on Presidential Powers
In the same vein is the history of Supreme Court rulings on the subject of presidential powers. The Court has concluded that the President has the leading constitutional role in managing the nation's foreign relations. As one commentator, David Scheffer, noted in the Harvard International Law Journal, "Constitutional history confirms time and again that in testing [the limits of presidential plenary powers], the courts have deferred to the President's foreign relations powers when the constitution fails to enumerate specific powers to Congress."
In Harlow v. Fitzgerald (1982), the Supreme Court observed that responsibility for the conduct of foreign affairs and for protecting the national security are " 'central' Presidential domains." Similarly, in the Department of Navy v. Egan (1988), the Supreme Court " . . . recognized the generally accepted view that foreign policy [is] the province and responsibility of the Executive."
The case most frequently cited as confirming the President as the supreme authority in the Nation's conduct of foreign affairs is the Supreme Court's 1936 decision in the United States v. Curtiss-Wright Corp. In that case, the Court reversed the decision of the district court, and affirmed the constitutionality of President Franklin Roosevelt's declaration of an arms embargo against both sides in the conflict between Peru and Bolivia over the Chaco region. As stated in the opinion issued by Justice Sutherland, the power to conduct foreign affairs is "the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations -- a power which does not require for its exercise an act of Congress."
Summary and Conclusion:
After overviewing the relevant US Supreme Court rulings on the subject, it is clear that under the Constitution the President alone has the power to recognize, and withdraw recognition from, foreign regimes.
Therefore, the above mentioned clauses of the Taiwan Relations Act cannot be interpreted to say that the United States government recognizes Taiwan as a sovereign and independent nation. In fact, the official policy of the United States is that it does not support "Taiwan independence", "One China, One Taiwan," or "Two Chinas."
Additional Webpages of Interest