China-baiting by the US Congress shows little has changed since the China Exclusion Act

From banning Chinese immigrants in 1882 to barring Chinese property buyers in 2023, as part of the Eight Nation Alliance in 1900 or a China-containing Western bloc today, America is still not doing justice to China

Xu Xiaobing

Published: 1:00am, 25 Jul 2023

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More than 140 years ago, US president Chester Arthur signed the notorious Chinese Exclusion Act, the only federal law in US history to exclude immigration based on nationality. It took more than 60 years before Congress abolished it and another 70 years before Chinese-Americans received a much-delayed apology from the institution.

While that apology is still ringing in our ears, Florida governor and US presidential hopeful Ron DeSantis signed into law in May a bill that again targets Chinese citizens – effectively excluding them and the citizens of six other “countries of concern” from acquiring real estate in Florida.

This is just one example of a wave of what are seen as “China-baiting” laws and proposed legislation in America in recent years. Let me take a few examples just from the first half of this year.

On March 20, after gaining unanimous consent in both houses of Congress, the Covid-19 Origin Act was signed into law by President Joe Biden. The act said there was “reason to believe the Covid-19 pandemic may have originated at the Wuhan Institute of Virology” and required the director of national intelligence to submit a report. Yet, three months later, the head of US intelligence found no evidence the virus was created in the Chinese government’s Wuhan research laboratory.

On April 17, the House of Representatives, by a vote of 405-6, overwhelmingly approved the Upholding Sovereignty of Airspace Act to demand that China be held accountable “for the violation of United States airspace and sovereignty with its high-altitude surveillance balloon”. Before it had a chance to become law, however, Pentagon spokesman Patrick Ryder last month admitted that the balloon, shot down by the air force on February 4, did not collect information over the US.

Just two days later, mere weeks after US lawmakers had grilled TikTok chief executive Chew Shou Zi over so-called dangerous content, the House voted overwhelmingly (410-8) for a bill targeting Huawei Technologies and ZTE Corp. Called the Countering Untrusted Telecommunications Abroad Act, the legislation proposes to ban the two Chinese companies and their subsidiaries and affiliates from providing telecommunications equipment or services in the US.

Then last month, the Senate Foreign Relations Committee approved a bill to strip China of its “developing nation” status internationally, paving the way for full Senate approval. The passage of the Ending China’s Developing Nation Status Act comes just after the House unanimously passed in March a similar bill called the PRC Is Not a Developing Country Act, referring to China’s official name as the People’s Republic of China.

Apart from attempting to distort the narrative on the origins of Covid-19, China’s developing country status, the balloon incident and Chinese companies and Chinese-origin apps such as Huawei and TikTok, Congress also seems bent on running interference around China’s internal affairs by playing the Taiwan card in violation of the one-China principle.

For example, on March 22, the House voted 404-7 for a bill to refresh the official guidelines on US engagement with Taiwan, in particular to identify any opportunities and plans to lift self-imposed restrictions. The Act to Amend the Taiwan Assurance Act of 2020 also proposes periodic reviews of these engagement guidelines.

Then in May, the House Foreign Relations Committee voted for the Taiwan International Solidarity Act. This seeks to establish that when the United Nations recognised the People’s Republic of China in 1971, in effect removing Taiwan from the seat, it did not address the issue of Taiwan’s representation in the UN or related organisations, take a position on the Beijing-Taiwan relationship or make any statement on Taiwan’s sovereignty.

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Last month, the National Defence Authorisation Act for Fiscal Year 2024 was reported to the House. One outrageous amendment that was proposed “prohibits the Department of Defence from creating, procuring or displaying any map that depicts Taiwan or any offshore island under the administration of the Taiwan government as part of the territory of the People’s Republic of China”.

Other bills in the making include the Defund China’s Allies Act, introduced in April in the House, to demand that all 21 countries in America’s Latin American backyard resume or establish diplomatic relations with Taiwan within 30 days of the act becoming law. If this is not done, no federal funds may be made available to the country in the form of foreign assistance, including in humanitarian or security aid.

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Like the Chinese Exclusion Act, these modern-day state and federal laws and proposed legislation bring shame on America’s claim to uphold the rule of law and the rule-based international order. As in the Chinese idiom, there is little difficulty in trumping up a charge when you want to smear someone. To the Chinese, many of whom are familiar with the face-changing opera of Sichuan, the US claims of national security concerns against China look like yet another lightning-speed face change.

At the turn of the 20th century, the US was barring Chinese immigrants on the one hand, and invading China on the other as part of the Eight-Nation Alliance. Today, the US is proceeding to “de-risk”, even decouple, its economy from China’s while ganging up with Western allies to contain China and hobble its advance.

History can be an unforgiving mirror. Whether it was Chinese exclusion in 1882 or de-risking in 2023, America’s behaviour, including its slew of China-baiting legislation, shows there is still a long way to go before US legal institutions can do justice to China.

Xu Xiaobing is director of the Centre of International Law Practice at Shanghai Jiao Tong University Law School