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President Biden suggested that visiting Taiwan was a bad idea and that's what his military advisors told him, but he still allowed Nancy Pelosi, the Speaker of the House, the third most powerful person in the United States to visit Taiwan.

I am wondering if the President has the legal authority to prevent the Speaker of the House from making an action that could be considered detrimental to national security, and if visiting Taiwan could be considered to be an action that's detrimental to the national security of the United States under American law.

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    Almost certainly not. Separation of powers means House and Senate members are immune from arrest in the performance of their duties. The President could argue that visiting Taiwan doesn't fall into the scope of Pelosi's duties, but I doubt the Supreme Court would entertain that argument Aug 3 at 16:26
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    Wouldn't the president, as commander of the armed forces, have the authority to deny use of Air Force planes at least? Biden may just have decided that that would look even more disorganized than the current arrangements however. Aug 3 at 17:49
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    @barrycarter Foreign affairs is almost exclusively the role of the executive branch so I don't think any court would rule that the president would be preventing a congress member from doing their (constitutional) duties. As with every case involving 2 branches of government everything has to fit the letter of the constitution.
    – uberhaxed
    Aug 3 at 18:36
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    Biden's refusal to even call her up and ask her not to go was in part because the admin was worried she'd go anyway and make them look like idiots (also because the Republicans would call him weak).
    – eps
    Aug 3 at 18:38
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    Even if he did in some extreme circumstances (war I suppose would grant him that authority, as far as enemy countries go), he was unlikely to use it here, because of the Congressional majority being against him on this. It would have made the disagreements inside his own party even more apparent, close to an election (midterms).
    – Fizz
    Aug 3 at 19:56

1 Answer 1

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Does the president have the means to prevent a citizen from entering a country that is an island? Yes, obviously. The president controls the military so whether they take a boat or plane military vessels can "escort" them away from their intended destination.

Will such an action be upheld as legal in federal court? As with any case without precedent, this will be up to the ability of the lawyers on both sides and the ideology of the judges. But, we can make some assumptions and some predictions based on that.

To begin with, there has not been any case in history where the free movement of US citizens has been restricted. (@Fizz Notes the case of Cuba, which affirms the president having such power). Yes, during open war, such as WWII, citizens could freely go to and from Germany. Whether this is because the president feels no need to do so or because such an act is illegal is up for debate.

But let us suppose that it is legal to do so (and the president gave such an executive order, which he did not so this case is already falling apart). Now we have to see if such an action applies to private citizens or officials performing their duties (as officials will have qualified immunity and would be exempt from prosecution even if it was breaking a law). It would be a difficult case either way to argue that this applies to officials so let's assume such a theoretical order applies to citizens.

Now we have the burden of showing that a congress member was performing this action as an official or a private citizen. Ignoring the obvious fact that any ranking member of government reflects the United States optically, we can simply look at whether official foreign visits are part of the duties of a member of congress. This one is likely a no, considering the primary role of congress is domestic affairs (and foreign affairs is up to the executive branch).

Regardless, considering the logical jumps at have to get to this point, I'm going to say that no judge is going to rule such an action to prevent Pelosi from visiting Taiwan is legal.

Side note: The US, along with most countries, do not officially recognize the sovereignty of Taiwan so a lot of the rules about other countries don't apply here.

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    This isn't quite right. The US banned regular travel to Cuba supreme.justia.com/cases/federal/us/468/222 (official visits were excluded though from the ban).
    – Fizz
    Aug 3 at 20:21
  • @Fizz Excellent, as I did forget about Cuba. Fortunately, the answer was written in the case that presidents did have such an authority and includes the cases where it was official vs. private.
    – uberhaxed
    Aug 3 at 20:40

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